CJEU: Opinion of Advocate General Mengozzi in the case C-86/12 Alopka and Others v Ministre du Travail, de l'Emploi et de l'Immigration

Friday, October 4, 2013

The applicant in the main proceedings is a Togolese national whose asylum application was rejected in Luxembourg. She was granted tolerated status after the birth of her twin children. They were granted French citizenship shortly afterwards as their father was a French citizen. Ms. Alopka and her children remained in Luxembourg living in a shelter for families without resources. Later on, she applied for residence. Her application was rejected and she was ordered to leave the country. In the course of appeals proceedings, she also presented an employment offer she got. The Administrative Court in Luxembourg referred the following two questions:

-Is Article 20 TFEU - if necessary, read in conjunction with Articles 20, 21, 24, 33 and 34 of the Charter of Fundamental Rights, or with one or more of those provisions read separately or in conjunction - to be interpreted as precluding a Member State from refusing a third-country national, with sole responsibility for his or her infants who are citizens of the European Union, residence in the Member State of residence of the children, where they have been living with that person since birth, without having that nationality, while refusing the third-country national a residence permit, or even a work permit?

-Are such decisions to be regarded as being in the nature of decisions depriving those children, in their country of residence, in which they have lived since birth, of effective enjoyment of the substance of the rights attaching to the status of citizen of the European Union also in the situation where their other direct ascendant, with whom they have never shared family life, is resident in another Member State of the European Union, of which that person is a national?

The Advocate General considers if the first question is to mean whether, in view of the circumstances of the case, children of young age who are citizens of the Union and live in a Member State different from that of their nationality, satisfy the conditions imposed by Article 7(1) (b) of Directive 2004/38. This Article allows Union citizens to live in another Member State if they have sufficient resources to maintain themselves and their family members, so that they would not become a burden for the social assistance system of the host Member State. The AG observes that Ms. Alopka's children do not dispose of such resources by themselves. However, he considers that said condition may be satisfied by a concrete employment offer such as the one their mother was given. Consequently, the referring court would need to examine Ms. Alopka's employment offer in order to determine whether her children disposed of sufficient resources. This possibility would, however, depend on the existence of procedural rules in Luxembourg allowing for the consideration of an employment offer made in the course of the proceedings. The Advocate General notes that, if this were not the case, the provisions of the Charter of Fundamental Rights could not supersede such procedural rules. However, the Charter would be relevant to evaluate the personal situation of the applicants with a view to establishing the sufficiency of their resources. The Opinion then goes on to consider whether Ms. Alopka could have a right to residence derived from that of her children. The conclusion is, in this respect, that such right of residence would derive directly and exclusively from Article 21 TFEU, as Directive 2004/38 only contemplates a derived right of residence for parents who are dependent on Union citizens. Hence, children of young age who are citizens of the Union can avail themselves of Directive 2004/38 to allow a non-dependent ascendant who is in charge of them to obtain a derived residence permit in a Member State different from that of their nationality.

With respect to the order to leave the territory of Luxembourg, the Advocate General considers whether such an order would compel the Union citizens involved in the case to leave the territory of the Union and thus deprive them of the effective enjoyment of the rights attached to the citizenship of the Union. He concludes that, being French citizens, Ms. Alopka's children have an unconditional right to enter and live in France. In view of this, the order to leave the territory of Luxembourg could never deprive them of their rights as Union citizens. With respect to Ms. Alopka herself, the French authorities could not refuse to grant her residence in France, from where she could even be able to accept her employment offer in Luxembourg and become a frontier worker.

Read the full opinion (in French) on the CJEU's website.

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Dependant (Dependent person)
Family member
Residence document
Family unity (right to)