Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 7 March 2024 (1)
Case C‑63/23
Sagrario,
Joaquín,
Prudencio
v
Subdelegación del Gobierno en Barcelona
(Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona, Spain)
(Reference for a preliminary ruling – Area of freedom, security and justice – Immigration policy – Right to family reunification – Directive 2003/86/EC – Article 15(3) – Grant of an autonomous residence permit in the event of ‘particularly difficult circumstances’ – Conditions – Article 17 – Case-by-case examination – Right of the sponsor’s family members to be heard before a decision is adopted refusing to renew their residence permits – Hearing of minor children)
I. Introduction
1. In the present case, the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona, Spain) raises a number of questions for a preliminary ruling on the interpretation of the second sentence of Article 15(3) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. (2)
2. Under that provision, the Member States are required to grant third-country nationals who are members of a sponsor’s (3) family an autonomous residence permit when they find themselves in ‘particularly difficult circumstances’. The referring court questions the Court of Justice about the nature of such circumstances and also asks it to specify the procedural arrangements under which such third-country nationals may establish that they find themselves in such circumstances.
3. The request for a preliminary ruling was made in the course of a dispute between, on one side, a mother and her two minor children, who had been granted residence permits for the purposes of family reunification, and the Subdelegación del Gobierno en Barcelona (Provincial Office of the Spanish Government in Barcelona, Spain; ‘the Subdelegación’) on the other. The Subdelegación refused to grant the mother and children ‘long-term residence permits for the purposes of family reunification’ and so refused to renew their residence permits, in consequence of the refusal to grant a long-term residence permit to the father, their sponsor. (4) It was in the context of the legal proceedings which they brought against that decision that the applicants in the main proceedings then applied for autonomous residence permits, within the meaning of the second sentence of Article 15(3) of Directive 2003/86.
4. In the first place, the referring court asks the Court of Justice whether the circumstances of the applicants in the main proceedings may be regarded as ‘particularly difficult’, within the meaning of the second sentence of Article 15(3), for the reason that they concern minor children or because the family members will be left without a residence permit for reasons beyond their control.
5. In this Opinion, I shall explain why, in my view, neither of those reasons is in itself sufficient to demonstrate the existence of ‘particularly difficult circumstances’. Indeed, I consider that this condition renders it necessary to establish that, for family reasons, the third-country nationals concerned are facing circumstances that are by nature particularly serious or arduous or expose them to significant insecurity or vulnerability, causing them to have a real need for the protection afforded by the grant of an autonomous residence permit. In this particular instance, the circumstances to which the national court refers do not seem to me to have those characteristics.
6. In the second place, the referring court asks the Court of Justice to specify what procedural safeguards are available to family members and, in particular, minor children, prior to the adoption of a decision refusing to renew their residence permits, as well as the means at their disposal to demonstrate the existence of ‘particularly difficult circumstances’, for the purposes of obtaining autonomous residence permits.
7. In this regard, I shall explain the reasons for which the competent national authority must, before adopting such a decision, carry out an individual examination of the application for the renewal of a residence permit, in accordance with Article 17 of Directive 2003/86, in the course of which the family members concerned have an opportunity effectively to make known all the information concerning their situation that they consider relevant. I would also add that, in accordance with consistent case-law, where an application is made by a minor child, it is incumbent on the Member States to take all appropriate measures to afford the child a genuine and effective opportunity of being heard, in accordance with his or her age or degree of maturity.
II. Legal framework
A. European Union law
1. Directive 2003/86
8. Directive 2003/86 lays down the conditions governing the exercise of the right to family reunification enjoyed by third-country nationals residing lawfully in the territory of the Member States.
9. Recitals 2, 4, 6, 11 and 15 of the directive read as follows:
‘(2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the [Convention for the Protection of Human Rights and Fundamental Freedoms] [(5)] and in the Charter of Fundamental Rights of the European Union. [(6)]
…
(4) Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental [European Union] objective stated in the Treaty.
…
(6) To protect the family and establish or preserve family life, the material conditions for exercising the right to family reunification should be determined on the basis of common criteria.
…
(11) The right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children …
…
(15) The integration of family members should be promoted. For that purpose, they should be granted a status independent of that of the sponsor, in particular in cases of breakup of marriages and partnerships, and access to education, employment and vocational training on the same terms as the person with whom they are reunited, under the relevant conditions.’
10. Within Chapter VI of the directive, which is entitled ‘Entry and residence of family members’, Article 13(3) provides:
‘The duration of the residence permits granted to the family member(s) shall in principle not go beyond the date of expiry of the residence permit held by the sponsor.’
11. Within that chapter, Article 15 of Directive 2003/86 reads as follows:
‘1. Not later than after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor.
Member States may limit the granting of the residence permit referred to in the first subparagraph to the spouse or unmarried partner in cases of breakdown of the family relationship.
2. The Member States may issue an autonomous residence permit to adult children and to relatives in the direct ascending line to whom Article 4(2) applies.
3. In the event of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, an autonomous residence permit may be issued, upon application, if required, to persons who have entered by virtue of family reunification. Member States shall lay down provisions ensuring the granting of an autonomous residence permit in the event of particularly difficult circumstances.
4. The conditions relating to the granting and duration of the autonomous residence permit are established by national law.’
12. Within Chapter VII of the directive, which is entitled ‘Penalties and redress’, Article 16(3) provides:
‘The Member States may withdraw or refuse to renew the residence permit of a family member where the sponsor’s residence comes to an end and the family member does not yet enjoy an autonomous right of residence under Article 15.’
13. Appearing in that chapter, Article 17 of the directive provides:
‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’
2. The guidelines
14. The Communication from the Commission to the European Parliament and the Council of 3 April 2014 on guidance for application of Directive 2003/86/EC on the right to family reunification (7) includes a point 5.3, entitled ‘Access to autonomous residence permit’, the third paragraph of which reads as follows:
‘Article 15(3) (second sentence) states that [Member States] must issue an autonomous residence permit in the event of particularly difficult circumstances to any family members who have entered by virtue of family reunification. [Member States] are required to lay down provisions in national law for this purpose. The particularly difficult circumstances must have been caused by the family situation or the break-down thereof, not [by] difficulties with other causes. Examples of particularly difficult circumstances may be, for instance, cases of domestic violence against women and children, certain cases of forced marriages, risk of female genital mutilation, or cases where the person would be in a particularly difficult family situation if forced to return to the country of origin.’
B. Spanish law
15. Article 19 of Ley Orgánica 4/2000 sobre derechos y libertades de los extranjeros en España y su integración social (Basic Law 4/2000 on the rights and freedoms of foreign nationals in Spain and their social integration) (8) of 11 January 2000, in the version applicable to the main proceedings, provides:
‘1. A residence permit for family reunification held by a reunited spouse or by a reunited child who has reached working age confers the right to work, without any further administrative steps needing to be taken.
2. A reunited spouse may obtain an independent residence permit where he or she has sufficient financial means to meet his or her own needs.
In the event that a reunited spouse is a victim of gender-based violence, she may obtain an independent residence and work permit, without meeting the abovementioned condition, once a protection order in her favour has been issued or, failing that, a report from the Ministerio Fiscal [Office of the Public Prosecutor, Spain] recording the existence of evidence of gender-based violence.
3. A reunited child may obtain an independent residence permit once he or she has reached the age of majority and has sufficient financial means to meet his or her own needs.
4. The type and amount of financial means deemed sufficient to enable a reunited family member to obtain an independent permit shall be determined by regulation.
5. In the event of the sponsor’s decease, reunited family members may obtain an independent residence permit under conditions to be determined.’
16. Article 59 of Real Decreto 557/2011 por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre derechos y libertades de los extranjeros en España y su integración social, tras su reforma por Ley Orgánica 2/2009 (Royal Decree 557/2011 approving the regulations made under Basic Law 4/2000 on the rights and freedoms of foreign nationals in Spain and their social integration, as amended by Basic Law 2/2009) of 20 April 2011, (9) which is entitled ‘Residence of reunited family members independent of the sponsor’s residence’, provides:
‘1. A reunited spouse or partner may obtain an independent residence and work permit if he or she meets one of the following conditions and provided that he or she owes no debts to the tax or social security authorities:
(a) possession of sufficient financial means to be granted a temporary non-lucrative residence visa;
(b) possession, when making the application, of one or more employment contracts providing for remuneration not less than the minimum monthly interprofessional wage in relation to the legal working day or the wage under the applicable collective agreement;
(c) fulfilment of the conditions for the grant of a temporary residence and self-employed work permit.
…
2. In addition, the spouse or partner may obtain an independent residence and work permit in any of the following cases:
(a) when the marital relationship that gave rise to the residence ends, by reason of legal separation, divorce or the cancellation of registration, or where the couple cease to live together, provided that he or she can prove that he or she has lived in Spain with the spouse or partner who is the sponsor for at least two years;
(b) when she is a victim of gender-based violence, once a court protection order in her favour has been issued or, failing that, a report from the Ministerio Fiscal recording the existence of evidence of gender-based violence. This case shall also apply when she is a victim of a crime of violent behaviour within the family, once a court protection order in her favour has been issued or, failing that, a report from the Ministerio Fiscal recording the existence of violent behaviour within the family;
applications made under this paragraph shall be processed on a priority basis and the duration of the independent residence and work permit shall be five years;
(c) the decease of the sponsor.
3. In the cases provided for in the preceding paragraph, where, in addition to the spouse or partner, other family members have been reunited, the latter shall keep the residence permit granted to them and shall depend, for the purposes of the renewal of their residence permit for family reunification purposes, on the family member with whom they live.
4. Children and minors whose legal representative is their sponsor shall obtain an independent residence permit when they reach the age of majority and are able to prove that they find themselves in one of the situations described in paragraph 1 of this article or when they reach the age of majority after living in Spain for five years.
…’
17. Article 61 of Royal Decree 557/2011, entitled ‘Renewal of residence permits for family reunification’, states, in paragraph 3 thereof:
‘The following requirements shall be met in order for a residence permit for family reunification to be renewed:
(a) Regarding the reunited family member:
(1) he or she must hold a valid residence permit for family reunification or one that expired no more than 90 calendar days previously;
(2) he or she must maintain the family relationship or the de facto union on the basis of which the permit to be renewed was granted;
…
(b) As regards the sponsor:
(1) he or she must hold a valid residence permit or one that expired no more than 90 calendar days previously;
…’
18. Paragraph 4 of the first additional provision of Royal Decree 557/2011 provides:
‘Where circumstances of an economic, social or employment nature make it advisable to do so, in unregulated situations of special relevance, the Consejo de Ministros [Council of Ministers, Spain] may, on a proposal from the head of the Secretaría de Estado de Inmigración y Emigración [Secretariat of State for Immigration and Emigration, Spain] and having regard to the report of the head of the Secretaría de Estado de Seguridad [Secretariat of State for Security, Spain] and, where appropriate, of the heads of the Subsecretarías de Asuntos Exteriores y de Cooperación y de Política Territorial y Administración Pública [Undersecretariats for Foreign Affairs, for Cooperation, for Territorial Policy and for Public Administration, Spain], issue, after informing and consulting with the Comisión Laboral Tripartita de Inmigración [Tripartite Working Committee on Immigration, Spain], instructions regarding the granting of temporary residence and/or work permits, which may be associated with a particular period, a position of employment or a particular place, depending on the terms of the instructions, or residence permits. … Similarly, the head of the Secretariat of State for Immigration and Emigration may, having regard to the report of the head of the Secretariat of State for Security, grant individual temporary residence permits where exceptional circumstances not contemplated in this regulation prevail.’
III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling
19. The three applicants in the main proceedings, a mother and her two minor children, held residence permits for family reunification, the sponsor being the wife’s husband, the father of the two children.
20. It is apparent from the order for reference that, on 22 April 2021, the four family members submitted applications for ‘long-term residence permits for the purposes of family reunification’.
21. By decision of 27 May 2021, the competent national authority rejected the sponsor’s application on account of the existence of a criminal record.
22. Then, by decision of 22 June 2021, the same authority rejected the applications submitted by the applicants in the main proceedings, on the basis of Article 61 of Royal Decree 557/2011. As its title indicates, Article 61 sets out the requirements for the renewal of residence permits for family reunification. Because the sponsor no longer held a work and/or residence permit, their applications failed to satisfy the requirement set out in Article 61(3)(b)(1) of the royal decree.
23. The referring court, before which the applicants in the main proceedings brought an action for the annulment of that decision, notes that the decision was adopted without the competent national authority carrying out, in accordance with Article 17 of Directive 2003/86, an assessment of the nature and solidity of the family relationships of the individuals concerned, of the duration of their residence or of the existence of family, cultural and social ties with the country in which they were residing and with their country of origin.
24. According to the referring court, since Article 15(3) of Directive 2003/86 does not define the ‘particularly difficult circumstances’ that justify the grant to the sponsor’s family members of an autonomous residence permit, it cannot be ruled out that that concept covers the situation which arises from the loss, by the reunited family members, of their residence permits for reasons beyond their control, especially in the case of minor children and individuals who suffer structural discrimination in their country of origin, as is the case for women from certain third countries where women are deprived of any protection.
25. However, the referring court observes, first, that, despite the mandatory nature of the wording of Article 15(3) of Directive 2003/86, Article 59 of Royal Decree 557/2011 makes no mention of the ‘particularly difficult circumstances’ referred to in Article 15(3). Moreover, while paragraph 4 of the first additional provision of Royal Decree 557/2011 provides for the grant of residence permits in exceptional cases not contemplated in the legislation, that provision does not appear to be consistent with Directive 2003/86. Indeed, the grant of such a residence permit would, according to a broad interpretation of that provision, be a matter of discretion, which would not exclude automatic decision-making with regard to residence permits, and jurisdiction in this respect is conferred not on the State’s peripheral authorities, but on a central public authority.
26. Second, Spanish legislation makes no provision for a procedure in which the individuals concerned are able to put forward individual circumstances, or for a prior hearing of minor children, with the result that the competent national authorities adopt decisions without taking the personal situation of reunited family members into account. They will, therefore, immediately find themselves to be residing unlawfully. However, it is clear from the case-law of the Court that such authorities must, before adopting a decision on family reunification, assess all the particular circumstances of the case before them, and that any automatic decision is precluded.
27. In those circumstances, the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 15(3), in fine, and Article 17 of Directive 2003/86, when they refer to “particularly difficult circumstances”, be understood as automatically including all circumstances involving a minor and/or circumstances that are similar to those provided for in Article 15?
(2) Is national legislation that does not provide for the grant of an autonomous residence permit, which ensures that reunited family members are no longer unlawful residents in the event of such particularly difficult circumstances, compatible with Article 15(3), in fine, and Article 17 of Directive 2003/86?
(3) Can Article 15(3), in fine, and Article 17 of Directive 2003/86 be interpreted as meaning that that right to an autonomous permit arises when the reunited family is left without a residence permit for reasons beyond their control?
(4) Is national legislation that does not provide for the necessary and mandatory assessment of the circumstances set out in Article 17 of Directive 2003/86 before a refusal to renew the residence permit of reunited family members compatible with Article 15(3) and Article 17 of that directive?
(5) Is national legislation that does not provide, as a step that must be taken before the refusal to grant or renew a residence permit as a reunited family member, for a specific procedure for hearing minors, where the grant or renewal of the sponsor’s residence permit has been refused, compatible with Article 15(3) and Article 17 of Directive 2003/86, Article 6(1) and Article 8(1) and (2) of the [ECHR] and Articles [7, 24 and 47] and Article 33(1) of the [Charter]?
(6) Is national legislation that does not provide, as a step that must be taken before the refusal to grant or renew a residence permit as a reunited spouse, where the grant or renewal of the sponsor’s residence permit has been refused, for that spouse to be able to plead the circumstances provided for in Article 17 of Directive 2003/86 in order to request that he or she be granted an option to remain resident without interruption vis-à-vis his or her previous residence status compatible with Article 15(3) and Article 17 of Directive 2003/86, Article 6(1) and Article 8(1) and (2) of the [ECHR] and Articles [7, 24 and 47] and Article 33(1) of the [Charter]?’
28. Written observations have been lodged by the applicants in the main proceedings, the Spanish Government and the European Commission. Those parties attended the hearing on 17 January 2024, during which they also answered the questions put to them by the Court for oral answer.
IV. Analysis
29. The first, second and third questions referred for a preliminary ruling concern the conditions for the application of Article 15(3) of Directive 2003/86, pursuant to which every Member State is required to grant third-country nationals who have entered that Member State on the basis of family reunification an autonomous residence permit in the event of ‘particularly difficult circumstances’ and, in particular, the scope of that concept.
30. The fourth, fifth and sixth questions, on the other hand, concern the procedural safeguards that apply when a decision is adopted refusing to renew the residence permits of members of the sponsor’s family. Although the national court refers in this connection to Article 15(3) of Directive 2003/86, that provision does not address the conditions under which a Member State may refuse to renew the permits of members of the sponsor’s family, that matter being governed by Article 16(3) of the directive. I therefore propose that the Court consider these questions with reference to that article .
A. The conditions governing the grant of autonomous residence permits under the second sentence of Article 15(3) of Directive 2003/86 (first, second and third questions)
31. By its first and third questions, the referring court essentially asks the Court to clarify whether the second sentence of Article 15(3) of Directive 2003/86 is to be interpreted as meaning that the existence of ‘particularly difficult circumstances’ may be automatically established where the circumstances concern a minor child or where the family member loses his or her residence permit for reasons beyond his or her control.
32. By its second question, the referring court also asks whether that provision precludes legislation of a Member State that does not provide for the grant of an autonomous residence permit to members of the sponsor’s family when not only are their circumstances particularly difficult, because of the presence of minor children, but also their residence becomes unlawful, because the renewal of their residence permits has been refused.
33. Since the arguments which the applicants in the main proceedings made at the hearing demonstrate the need for clarification in this regard, I shall make a preliminary observation regarding the nature of the right of residence conferred under Directive 2003/86 on third-country nationals who have entered a Member State on the basis of family reunification, and then offer an interpretation of the wording of the second sentence of Article 15(3) of that directive.
1. Preliminary observation
34. It is clear from recitals 4 and 6 of Directive 2003/86 that that directive has the general objective of facilitating the integration of third-country nationals in Member States by protecting the family and, in particular, by making it possible to preserve family life through reunification. (10) The Court has held that it follows from that objective and a reading of the whole of that directive, in particular Article 13(3) and Article 16(3) thereof, that, as long as the family members concerned have not acquired an autonomous right of residence on the basis of Article 15 of that directive, their right of residence is a right derived from that of the sponsor and intended to assist the latter’s integration. (11)
35. However, a situation such as that here at issue, in which a mother and her children, who entered a Member State on the basis of family reunification, are unable to renew their residence permits because the father’s residence permit has expired, is an ordinary situation in the context of family reunification, as opposed to the ‘particularly difficult circumstances’ to which the EU legislature refers in the second sentence of Article 15(3) of Directive 2003/86.
36. As the Spanish Government rightly pointed out at the hearing, the presence of minor children is a common, normal circumstance in the context of the family reunification or third-country nationals. To accept that their position could, in itself, constitute ‘particularly difficult circumstances’ within the meaning of Article 15 would be to disregard the express aims of the directive, since minor children would enjoy an autonomous right of residence and would thus be allowed to remain in the territory of the host Member State while their parent could be required to leave it.
37. Moreover, the fact that the members of the sponsor’s family are left without residence permits for reasons beyond their control is inherent in the derivative nature of their right of residence. Accordingly, in the case which gave rise to the judgment in Y.Z. and Others (Fraud in family reunification), in which the members of a sponsor’s family had lost their residence permits on account of a fraud committed by the sponsor of which they were unaware, the Court held that, having regard to ‘the central importance of the sponsor in the system established by Directive 2003/86’, it was in accordance with the objectives pursued by that directive and its underlying rationale, that that fraud had repercussions for the process of family reunification and, in particular, affected the residence permits granted to the members of the sponsor’s family, even if the latter did not know of the fraud committed. (12) Those principles apply by analogy to a situation such as that here at issue, in which family members who entered a Member State on the basis of family reunification are unable to renew their residence permits because the sponsor has lost his right of residence because he committed a criminal offence.
38. It is appropriate now to consider how the condition relating to the existence of ‘particularly difficult circumstances’, laid down in the second sentence of Article 15(3) of the directive, may be satisfied.
2. The scope of the concept of ‘particularly difficult circumstances’, within the meaning of the second sentence of Article 15(3) of Directive 2003/86
39. The second sentence of Article 15(3) of Directive 2003/86 was intended by the EU legislature to be a mandatory provision. In accordance with that provision, the existence of ‘particularly difficult circumstances’ affecting an individual who has entered a Member State on the basis of family reunification is the only substantive condition that must be satisfied in order for an autonomous residence permit to be granted. However, neither Article 15, nor any other provision of the directive contains a definition or illustration of the concept of ‘particularly difficult circumstances’, unlike Article 13(2)(c) of Directive 2004/38/EC, (13) which makes an express reference to members of a Union citizen’s family who are the victims of domestic violence. In its case-law, the Court has therefore referred to the interpretation offered by the Commission in point 5.3 of the Guidelines, which cites cases of domestic violence as an example of ‘particularly difficult circumstances’. (14)
40. At the hearing, the Spanish Government submitted that the scope of the concept of ‘particularly difficult circumstances’ could be determined unilaterally by the Member States. I do not share that view. In fact, I consider that that concept, used in the second sentence of Article 15(3) of Directive 2003/86, must be regarded as an autonomous concept of EU law. Otherwise, if the Member States enjoyed a discretion in the definition of such circumstances, there would be a risk that the disparities in national legislation would compromise the scope and effectiveness of the obligation thus imposed on the Member States. In addition, it must be observed that Article 15(3) of the directive does not refer to the laws of the Member States in connection with the definition of that concept, by contrast with Article 15(4) of the directive. It is essential to draw a distinction between these two provisions. The second sentence of Article 15(3) of Directive 2003/86 confers a right on the family member concerned by requiring the Member States to adopt provisions ensuring the granting of an autonomous residence permit in the event of ‘particularly difficult circumstances’. The EU legislature thus laid down a substantive condition that must be satisfied in order for an autonomous residence permit to be granted. Article 15(4) of the directive, on the other hand, serves a different purpose and places a responsibility on the Member States to define in their national laws the conditions under which that right may be invoked, as well as the manner in which it may be exercised, subject to observance of the principle of proportionality and the objective and effectiveness of that directive. (15)
41. In light of all those elements, I think it necessary to apply the Court’s settled case-law, according to which it follows from the need for a uniform application of EU law and from the principle of equality, that a provision of EU law which makes no express reference to the laws of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. (16) To that end, since Directive 2003/86 does not define the concept of ‘particularly difficult circumstances’, the terms of that concept must, in accordance with consistent case-law, be interpreted by reference to their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. (17)
42. I shall begin my analysis by examining the purpose of the second sentence of Article 15(3) of Directive 2003/86. The condition relating to the existence of ‘particularly difficult circumstances’ must above all be interpreted in the light of the purpose which that provision pursues, which is the protection the sponsor’s family members.
43. I would point out that, according to recitals 4 and 6 of the directive, the right to family reunification is intended, in particular, to protect the family by ensuring that family life may be established or preserved in the host Member State. (18) This right thus makes it possible to ensure that everyone has the right to live with his or her family in the host Member State.
44. Nevertheless, this right is not absolute and the EU legislature has laid down legitimate restrictions on its exercise. Thus, recital 2 of Directive 2003/86 emphasises that measures concerning family reunification must be adopted in observance of the fundamental rights enshrined, in particular, in the Charter. Such measures must therefore be consistent with the right to human dignity, enshrined in Article 1 of the Charter, the right to the integrity of the person, enshrined in Article 2, the prohibition of torture and inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, and the rights of the child, enshrined in Article 24 thereof. Moreover, in recital 11 of the directive, the EU legislature expressly acknowledged the right of the Member States to adopt ‘restrictive measures’ limiting the right to family reunification where compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children, justify them. Thus, a competent national authority may, on the basis of Article 4(4) and (5) of the directive, oppose an application for family reunification made by a spouse who would be coming to live with other spouses of the sponsor (in a polygamous household) or where the applicant spouse has not reached the minimum age set by the Member State for such purpose, so as to prevent forced marriages.
45. I consider that the measure introduced by the EU legislature in the second sentence of Article 15(3) of Directive 2003/86 pursues exactly the same purpose, that of protecting family members, albeit at a later stage in the procedure, after the family members have already entered the territory of the host Member State on the basis of family reunification. The grant of an autonomous residence permit then becomes a measure for the protection of family members faced with ‘particularly difficult circumstances’ due to family reasons. (19)
46. It follows that the grant of an autonomous residence permit under the second sentence of Article 15(3) of Directive 2003/86 is conditional on it being established that there is a real need for protection of the family members concerned.
47. An examination of the terms themselves and of the context in which they are used by the EU legislature in Article 15 makes it possible to determine more precisely the scope of the condition relating to the existence of ‘particularly difficult circumstances’.
48. In the first place, in its normal sense, the ‘situation’, in the French-language version of the provision, that is ‘particularly difficult’, refers to all of the events, circumstances and specific relationships in which a person or group of persons find themselves. (20) At the hearing, it was submitted that the word ‘situation’ must primarily refer to the ‘family situation’ (or to ‘family circumstances’), given the purpose and objectives of Directive 2003/86. I share that view, since it seems essential to me to distinguish between the situations (or circumstances) that fall within the scope of Directive 2003/86 and those faced by third-country nationals for other reasons, such as the existence of a risk of persecution or of serious harm should the individual be returned to his or her country of origin, which is governed by Directive 2011/95/EU, (21) or because the individual has been a victim of human trafficking, which is governed by Directive 2004/81/EC. (22) Thus, the Commission emphasised in its Guidelines that the ‘particularly difficult circumstances’ ‘must have been caused by the family situation or the break-down thereof, not [by] difficulties with other causes’. (23) Nevertheless, I think it more accurate to regard the term ‘situation’ (or ‘circumstances’) used in the second sentence of Article 15(3) of Directive 2003/86 as referring to ‘family reasons’. I believe that, in many areas of national legislation, and in particular tax and social security legislation, as well as in everyday language, the ‘family situation’ refers to the composition and structure of the household. On the other hand, the concept of ‘family reasons’ enables other matters to be taken into account, such as the family’s history, conflict within the family or the behaviour of each of the family members.
49. In the second place, the EU legislature addresses situations which it characterises as ‘particularly difficult’, the Commission referring, in its preparatory work, to ‘particularly difficult circumstances’ (24) (25). It therefore seems to me that a ‘particularly difficult’ situation is one characterised by the existence of circumstances that are by nature particularly serious or arduous for the family member concerned or which expose that person to significant insecurity or vulnerability and which are therefore of an exceptional nature.
50. In the context of Article 15(3) of Directive 2003/86, such a situation may be established where the family member finds himself or herself deprived, de facto or de jure, of the protection of his or her family.
51. The first situation would be where the ‘particularly difficult circumstances’ resulted from a breakdown of the family relationship with the sponsor and from the loss of the right of residence which that breakdown caused the family member concerned. Where such a situation arises, it constitutes an aggravating circumstance, one that justifies the conversion of the option Member States have of granting autonomous residence permits in the event of widowhood, divorce, separation or the death of the sponsor, acknowledged in the first sentence of Article 15(3) of the directive, into an obligation, in the second sentence thereof. (26)
52. That could be the case where divorce or separation exposes the person concerned, if he or she were returned to his or her country of origin, to the risk of no longer being able to meet his or her own needs or those of the children, on account of the individual’s social status or the situation in that country, or to the risk of no longer being able to see the children. It could also be the case, as the Commission pointed out in its preparatory work, (27) where a widow, a divorced woman or a repudiated wife would be placed in ‘particularly difficult circumstances’ or a ‘situation of distress’, if she were forced to return to her country of origin.
53. The second situation would be where the ‘particularly difficult circumstances’ in which the family member concerned found himself or herself resulted, on the contrary, from (the continuation of) his or her family life with the sponsor, making it unacceptable for his or her right of residence to be derived from that of the sponsor. Such a situation would then require the host Member State to grant the third-country national residing in its territory on the basis of family reunification the right to remain there without the sponsor, for such duration and under such conditions as may be established by its national law.
54. Thus, it is quite clear, in the light of the preparatory work for Directive 2003/86 and the case-law of the Court, (28) that women who are victims of domestic violence find themselves facing ‘particularly difficult circumstances’, within the meaning of the second sentence of Article 15(3) of the directive. (29) In addition to the acts of violence they suffer, the gravity of their situation is accentuated by the fact that they are dependent, in so far as their right of residence in the host Member State is concerned, on the individual meting out that violence. The grant of an autonomous residence permit then becomes a measure of protection that may help the family member (30) resolve to leave the conjugal home and lodge a complaint, without fear of losing his or her legal status. (31) I would point out that Article 59(1) of the Convention on preventing and combating violence against women and domestic violence (32) also supports this view.
55. Other forms of domestic violence are liable to expose family members whose resident status is dependent on that of a sponsor to equally difficult situations. Domestic violence can be physical, sexual or psychological. It may take the form of financial exploitation. It also occurs where a family member is the victim of mistreatment or neglect, of honour-based violence or forced marriage, or is forcibly separated from a child or exposed to the risk of female genital mutilation (33) or forced abortion or is thrown out and so deprived of the ability to meet his or her own needs and to live in his or her country of origin without the help of a third party. Such situations make it unacceptable to maintain the relationship of dependency inherent in a derived right of residence and justify the grant of an autonomous residence permit.
56. It is not possible to draw up here an exhaustive list of the ‘particularly difficult circumstances’ with which a member of a sponsor’s family could be faced. As Advocate General Wathelet stated in his Opinion in NA, (34) they must be ‘particular circumstances warranting protection’. (35) They may vary from one Member State to another, over time, and from one case to another and, moreover, the competent national authorities must be allowed the necessary discretion to ascertain, in each individual case, the severity or arduousness of the circumstances with which the person concerned is faced or the degree of insecurity or vulnerability to which he or she is exposed.
57. In light of all the foregoing, I consider that the second sentence of Article15(3) of Directive 2003/86 must be interpreted as meaning that the condition relating to the existence of ‘particularly difficult circumstances’ renders it necessary to establish that, for family reasons, the third-country national residing in the territory of a host Member State on the basis of family reunification is facing circumstances that are by nature particularly serious or arduous or expose him or her to significant insecurity or vulnerability, causing him or her to have a real need for the protection afforded by the grant of an autonomous residence permit.
58. Subject to an individual assessment of the situation, the simple fact that minor children are involved or that members of the sponsor’s family are left without residence permits for reasons beyond their control is not sufficient to establish the existence of ‘particularly difficult circumstances’ within the meaning of Article 15(3).
59. That interpretation renders any examination of the second question referred for a preliminary ruling irrelevant.
60. I would, however, point out that, by that question, the referring court asks the Court of Justice whether the second sentence of Article 15(3) of Directive 2003/86 is to be interpreted as precluding legislation of a Member State that does not provide for the grant of autonomous residence permits to members of a sponsor’s family where their situation in that Member State is particularly difficult because of the presence of minor children and also their residence becomes unlawful, following a refusal to renew their residence permits.
61. That question rests on the premiss that the applicants in the main proceedings are faced with ‘particularly difficult circumstances’ within the meaning of the second sentence of Article 15(3) of Directive 2003/86 because two minor children are involved. However, for the reasons I have just set out, that simple fact is not sufficient to give rise to an autonomous right of residence under the second sentence of Article 15(3) of that directive. In a situation such as theirs, the members of the sponsor’s family are covered by the provisions of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (36) and enjoy the rights and guarantees provided for in that directive.
B. The procedural guarantees attaching to a decision refusing to renew the residence permits of members of the sponsor’s family
62. By its fourth, fifth and sixth questions, the referring court essentially asks the Court of Justice whether Article 17 of Directive 2003/86, read in the light of Articles 7, 24, 33 and 47 of the Charter, is to be interpreted as precluding national legislation that allows a competent national authority to reject an application for the renewal of residence permits made by members of a sponsor’s family without first carrying out an individual examination of their application, one in the course of which the family members, and in particular any minor children, are heard.
63. In accordance with Article 16(3) of Directive 2003/86, ‘the Member States may … refuse to renew the residence permit of a family member where the sponsor’s residence comes to an end and the family member does not yet enjoy an autonomous right of residence under Article 15.’
64. As regards the examination which it is incumbent on the competent national authorities to carry out in relation to applications for the renewal of family members’ residence permits, it follows from Article 16(3) of the directive, and in particular from the use of the words ‘may … refuse to renew the residence permit’ in that provision, that the Member States have a discretion in this regard. (37) I would nevertheless point out that the Member States may only exercise that discretion in observance of the principle of proportionality and the objective and effectiveness of that directive. (38)
65. Moreover, it is quite clear that the implementation of Directive 2003/86, as of any act of EU law, must be in accordance with fundamental rights. Accordingly, it is clear from recital 2 of that directive that measures concerning family reunification must be adopted in conformity with fundamental rights and the principles enshrined in the Charter, (39) and must, in particular, ensure the right to respect for private and family life, enshrined in Article 7 of the Charter. It is settled case-law that Article 7 must also be read in conjunction with the fundamental rights of the child, as set out in Article 24 of the Charter. (40)
66. It follows that the examination of applications for the renewal of the residence permits of a sponsor’s family members must be carried out in observance of fundamental rights and, in particular, Articles 7 and 24 of the Charter. (41)
1. Examination of applications on a case-by-case basis
67. Taking the requirements I have just mentioned into account, the Court has held that the competent national authorities must make a balanced and reasonable assessment of all the interests in play. (42)
68. It is in that context that Article 17 of Directive 2003/86 very clearly requires the competent national authorities to make an individual assessment of every application for the renewal of a residence permit made by a member of a sponsor’s family. (43) The aim of that examination is to establish whether reasons exist that should prevent the authority from refusing to renew the family member’s residence permit. In addition to the matters expressly referred to in Article 17 of the directive, the Court – like the Commission, in its Guidelines – requires the competent national authorities to take account of all the relevant aspects of the cases before them and to pay particular attention to the interests of any children concerned and the need to promote family life. (44)
69. According to the Court, the assessment must permit ‘an actual examination of the situation of each applicant’. (45) Where an application for the renewal of a family member’s residence permit is rejected because the sponsor no longer has a residence permit, that examination must, I think, include an assessment of whether there are grounds for the competent national authority to issue an autonomous residence permit, under Article 15(3) of Directive 2003/86. While the Member States have a discretion as regards refusing to renew a residence permit and defining any conditions attaching to the grant of an autonomous residence permit, that freedom is limited by the obligation to take account of the particular situation of any family member who would be faced with, or could be faced with ‘particularly difficult circumstances’, within the meaning of the second sentence of Article 15(3) of that directive, and to issue a residence permit when those circumstances so require.
70. In the present case, the situation concerns a mother and her two minor children who have not been granted ‘long-term residence permits for the purposes of family reunification’ and whose residence permits have not been renewed in consequence of the refusal to grant a long-term residence permit to the father, who is the sponsor. In these circumstances, the competent national authority should take the family situation and, in particular, the solidity of the family relationships into account. It should also take into account the duration of their residence and the existence of family, cultural and social ties both in the host Member State and in their country of origin, (46) where the children were born (47) and, where necessary, their age when they arrived in the host Member State and whether they were brought up there and received an education there. Account should also be taken of relevant general and specific information concerning the situation in their country of origin, such as their living conditions, their social status and cultural aspects specific to their country of origin, (48) since the referring court has emphasised the risk of structural discrimination that the mother could suffer there. Lastly, the competent national authority should take into consideration the reasons for which their residence permits were not renewed, which relate to the father’s having a criminal record. (49)
71. It is for the referring court to determine whether the decision at issue in the main proceedings, by which the competent national authority refused to renew the residence permits for the purposes of family reunification of the mother and her two children in consequence of the loss of the father’s residence permit, is justified in light of the foregoing considerations, or whether the mother and children should, in light of those considerations, be issued with autonomous residence permits.
2. Observance of the right to be heard
72. Directive 2003/86 does not specify whether, and if so under what conditions, members of the sponsor’s family are entitled to be heard before a decision is adopted refusing to renew their residence permits or, in particular, the arrangements under which they may allege the circumstances referred to in Article 17 of the directive.
73. It is nevertheless clear from settled case-law that observance of the right to be heard is required, even where the applicable legislation does not expressly provide for such a procedural requirement, provided that that legislation comes within the scope of EU law. (50)
74. On this point, the Court has repeatedly held that the right to be heard in all proceedings is inherent in the observance of the rights of the defence, which is a fundamental principle of EU law enshrined in Article 47 of the Charter. (51) This right guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely. (52) Clearly, a decision rejecting an application for the renewal of a residence permit is a decision liable to affect the interests of the members of the sponsor’s family adversely.
75. It follows that the Member States are required to hear the members of a sponsor’s family before adopting a decision whereby their residence permits are not renewed. (53)
76. Although, according to consistent case-law, the right to be heard does not necessarily imply an obligation to place the person concerned in a position to state his or her views orally, (54) the person concerned must nevertheless be given the opportunity to make known his or her views effectively during an administrative procedure. Thus, in the context of an application for the renewal of a residence permit, the individual concerned must, first of all, be able to put forward all the information he or she considers relevant to his or her personal and family situation. Some of the matters that need to be addressed in the case-specific examination provided for in Article 17 of Directive 2003/86, such as the age of any children or the duration of the family members’ residence in the host Member State, may be established by means of documentary evidence. Other matters, on the other hand, such as the solidity of the family relationships, the nature and significance of ties in the host Member State or living conditions in the country of origin, call for the written or oral testimony of the person concerned. Yet other factors, such as those which are liable to reveal the existence of ‘particularly difficult circumstances’ within the meaning of the second sentence of Article 15(3) of that directive, could also make it necessary to implement a specific procedure.
77. Next, the right to be heard requires the competent national authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision. The obligation to state reasons for a decision which are sufficiently specific and concrete is thus a corollary of the principle of observance of the rights of the defence, the person concerned thus being put in a position to understand why his or her application is being rejected. (55)
78. Lastly, as regards the arrangements for the participation of minor children, Article 24(1) of the Charter requires that children should be able to express their views freely and that the views expressed be taken into consideration on matters which concern them in accordance with their age and maturity. (56) The Court has clarified that that provision refers not to the hearing of the child, per se, but to the child’s having the opportunity to be heard. (57) The right of the child to be heard does not, therefore, require that a hearing necessarily be held, but does require that procedures and legal conditions be in place to enable the child to express his or her views freely and that those views be taken into account.
79. Furthermore, Article 24(2) of the Charter also requires competent national authorities to take account of the child’s best interests. According to the Court, that provision means that, in all actions relating to children, in particular those taken by Member States when applying Directive 2003/86, the child’s best interests must be a primary consideration. (58) In its judgment of 22 December 2010, Aguirre Zarraga, (59) concerning proceedings relating to rights of custody of a child, the Court held that those interests could justify a decision not to hear the child. (60) Accordingly, while remaining a right of the child, hearing the child cannot constitute an absolute obligation, but must be assessed having regard to what is required in the best interests of the child in each individual case, in accordance with Article 24(2) of the Charter. (61)
80. In other words, where an application is made by a minor child, it is incumbent on the Member States to take all appropriate measures to offer the child a genuine and effective opportunity of being heard, in accordance with his or her age or degree of maturity. (62)
81. In light of all the foregoing, Article 17 of Directive 2003/86 must be interpreted as precluding national legislation that allows a competent national authority to reject an application for the renewal of residence permits made by members of a sponsor’s family without first carrying out an individual examination of their application, one in the course of which they have the opportunity effectively to make known all the information concerning their situation that they consider relevant.
82. Where an application is made by a minor child, it is incumbent on the Member States to take all appropriate measures to offer the child a genuine and effective opportunity of being heard, in accordance with his or her age or degree of maturity.
V. Conclusion
83. Having regard to all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona, Spain) as follows:
(1) The second sentence of Article 15(3) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification
must be interpreted as meaning that
– the condition relating to the existence of ‘particularly difficult circumstances’ renders it necessary to establish that, for family reasons, the third-country national residing in the territory of a host Member State on the basis of family reunification is facing circumstances that are by nature particularly serious or arduous or expose him or her to significant insecurity or vulnerability, causing him or her to have a real need for the protection afforded by the grant of an autonomous residence permit;
– subject to an individual assessment of the situation, the simple fact that minor children are involved or that members of the sponsor’s family are left without residence permits for reasons beyond their control is not sufficient to establish the existence of ‘particularly difficult circumstances’ within the meaning of Article 15(3).
(2) Article 17 of Directive 2003/86
must be interpreted as
– precluding national legislation that allows a competent national authority to reject an application for the renewal of residence permits made by members of a sponsor’s family without first carrying out an individual examination of their application, one in the course of which they have the opportunity effectively to make known all the information concerning their situation that they consider relevant;
– meaning that, where an application is made by a minor child, it is incumbent on the Member States to take all appropriate measures to offer the child a genuine and effective opportunity of being heard, in accordance with his or her age or degree of maturity.