Provisional text

delivered on 19 September 2024 (1)

Case C-607/21

XXX

État belge

(Request for a preliminary ruling from the Conseil d’État (Council of State, Belgium))

( Reference for a preliminary ruling – Free movement of persons – Directive 2004/38/EC – Circle of beneficiaries – Article 2(2)(d) – Direct ascendant – Concept of ‘dependency’ – Place where dependency must exist – Right of residence of the dependent direct ascendant – Application for residence card in the host Member State several years after relocation from the country of origin – Legality of stay in the host Member State – Evidence of dependency )

1.The Belgian authorities refused to issue a residence card to Ms XXX, a third-country national (‘TCN’), who had joined her son and his partner, a mobile Union citizen, in Belgium. That refusal has given rise to the present case.

2.On the basis of the Citizenship Directive, (2) Member States must issue a residence card to a TCN direct ascendant who is a dependency, and who, as a result of that dependency, has acquired a derived right of residence.

3.The present case invites the Court to explain the geographical dimension of the concept of dependency contained in the Citizenship Directive, by answering the question whether it is decisive for that concept that an ascendant was in need of care in his or her country of origin.

II. The dispute in the main proceedings, the questions referred and the procedure before the Court

4.Ms XXX is a Moroccan national and the mother of AL, a Belgian national who resides in Belgium. AL’s partner, Ms N.E.K., is a Dutch national who moved to Belgium where she has lived with AL since 2005. (3)

5.Ms XXX entered Belgian territory on 25 July 2011 on a tourist visa.

6.On 21 September 2011, she lodged an application for a residence card, basing her request on the fact that she is dependent on her son. However, as is apparent from the order for reference, the relevant Belgian legislation was amended shortly before Ms XXX’s application, so that it no longer grants the right to family reunification to Belgian citizens with their relatives in the ascending line.(4) As a result, Ms XXX’s first application was rejected on 21 October 2011.

7.On 26 June 2015, Ms XXX, who appears to have continued living with her son and his partner in Belgium, lodged her second application for a residence card. This time, she applied as a dependent family member of her son’s partner, Ms. N.E.K., the latter being a mobile Union citizen covered by the scope of the Citizenship Directive.

8.The national authorities rejected this application on 28 September 2015 on two grounds: first, the household resources of her son and his partner were not sufficiently documented, and second, the documents attesting to Ms XXX’s dependency were too old. That decision also included an order to leave Belgian territory.

9.Ms XXX contested that rejection, but her action was dismissed by the Conseil du contentieux des étrangers (Council for Asylum and Immigration Proceedings, Belgium) on 14 April 2016. The dismissal dealt only with the first ground – insufficient documentary evidence of the resources of the sponsoring household –, and did not examine the argument that the documents attesting to Ms XXX’s dependency were too old.

10.Ms XXX lodged her third application for a residence card on 9 November 2017, again as a family member of her son’s partner, Ms N.E.K., a mobile Union citizen.

11.On 2 May 2018, that application was also rejected. One of the reasons given was that the documents produced as evidence of her lack of means (in particular, the information sheet from the Moroccan tax inspector and the Moroccan certificate of lack of means, both dated 2011), and the evidence of financial support from the household which she states that she wishes to join (evidence of remittances dating from 2010 and 2011) were too old.

12.Ms XXX contested the validity of that last rejection. By judgment of 30 August 2019, the Conseil du contentieux des étrangers (Council for Asylum and Immigration Proceedings) dismissed her action, considering that dependency requires two cumulative conditions to be met. First, the state of dependency must have arisen in the country of origin prior to the family member’s arrival in Belgium. In that body’s view, this follows from the judgment in Jia. (5) Second, to prove that state of dependency, it is not sufficient for the sponsoring family member to have sufficient resources or to be living with the applicant; it is also necessary for the applicant to establish that the material support of that sponsoring family member was necessary to him or her at the moment when the application is made.

13.On 3 October 2019, Ms XXX brought an appeal against that decision before the Conseil d’État (Council of State, Belgium). That appeal gave rise to the present reference for a preliminary ruling.

14.The Conseil d’État (Council of State) explains that a significant difference between the present case and the earlier cases decided by the Court lies in the fact that the family member seeking to benefit from family reunification has already resided in the territory of the State in which she wishes to join the Union citizen for six years. It therefore considers that it requires further clarification of the pertinent EU law.

15.In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) In the context of the examination of the concept of a dependant for the purposes of Article 2(2)(d) of [the Citizenship Directive], should account be taken of the situation of an applicant who is already in the territory of the State in which the sponsor is established?

(2) If the answer to the first question is in the affirmative, should an applicant who is lawfully in the territory of that State be treated differently from an applicant who is there unlawfully?

(3) Is Article 2(2)(d) of [the Citizenship Directive] to be interpreted as meaning that, in order to be regarded as a dependant and thus to fall within the definition of “family member” referred to in that provision, a direct relative in the ascending line [may] rely on a situation of real material dependency in the country of origin established by documents which, at the time of lodging the application for a residence card as a family member of a Union citizen, were, however, issued several years previously, on the ground that the departure from the country of origin and the lodging of the application for a residence card in the host Member State did not occur at the same time?

(4) If the answer to the third question is in the negative, what are the criteria for assessing the situation of material dependency of an applicant seeking to join a European citizen or his or her partner, as a relative in the ascending line, without having been able to obtain a residence permit on the basis of an application lodged immediately after his or her departure from the country of origin?’

16.Written observations were submitted to the Court by Ms XXX, the Belgian, Czech, Danish and German Governments and the European Commission.

17.By decision of the President of the Court of 28 October 2022, the proceedings in the present case were suspended, pursuant to Article 55(1)(b) of the Rules of Procedure of the Court of Justice, pending delivery of the judgment in Case C‑488/21, Chief Appeals Officer.

18.Following delivery of that judgment on 21 December 2023, (6) the Court asked the referring court in the present case whether it wished to maintain its questions referred for a preliminary ruling.

19.By letter of 19 January 2024, the referring court replied that it wished to maintain all of its questions for a preliminary ruling, as it considers that that judgment did not provide answers to those questions.

20.The proceedings in the present case were therefore resumed on 24 January 2024.

21.A hearing was held on 13 June 2024 at which Ms XXX, the Belgian, Danish and German Governments and the Commission presented oral argument.

III. Analysis

22.The Citizenship Directive entitles family members of a mobile Union citizen to join that citizen in the State to which he or she has moved (‘the host Member State’). For that purpose, Article 7(1)(d) of that directive confers on family members the right to reside in a host Member State.

23.Whether someone can be considered a family member of a mobile Union citizen is not a matter of choice on the part of that citizen, but, rather, depends on the definition of that term set out in Article 2(2) of the Citizenship Directive. In addition to the spouse, recognised partner and minor children of a Union citizen, that directive also bestows the right of residence on dependent direct descendants under the age of 21 (Article 2(2)(c) thereof) and dependent direct ascendants (Article 2(2)(d) of that directive).

24.To enjoy the right of residence on the basis of the Citizenship Directive, Ms XXX therefore has to be dependent on a mobile Union citizen.

25.It follows from the wording of Article 2(2)(d) of the Citizenship Directive and from the case-law that, in order to be covered by that directive, an ascendant (or descendant) need not necessarily be dependent on his or her direct relative (in the present case, Ms XXX’s son, AL), but can instead be dependent on that direct relative’s spouse or partner (in the present case, Ms N.E.K.). (7) If the direct relative and his or her partner, who is a mobile Union citizen, form a household, it is sufficient that the care for the direct ascendant is provided by a member of that household. (8)

26.The participants in the proceedings before the Court accepted that interpretation. It is, therefore, not disputed that Ms XXX could claim her right of residence on the basis of the Citizenship Directive if she is dependent on the household formed by her son, who is not a mobile Union citizen, and his partner, who is.

27.As a TCN, Ms XXX is required under Article 9 of the Citizenship Directive to apply for a residence card, which the host Member State must issue, if she is a dependent family member. (9)

28.A number of cases that have come before the Court have arisen due to the refusal of a Member State to issue a residence card,(10) or to recognise some other right that is granted by the Citizenship Directive to dependent relatives, such as the right to equal treatment in access to social benefits. (11) Those cases have clarified to a certain extent the concept of dependency in the Citizenship Directive.

29.The novelty of the present case is the length of time (more than six years) between the moment of Ms XXX’s relocation to Belgium and her application for a residence card. (12) That brings to the fore the question of geography: whether Ms XXX’s situation in her country of origin is relevant for the assessment of her dependency.

30.In the relevant earlier cases, at the moment of requesting the residence card, the applicant had either just recently relocated to a host Member State or submitted such a request from his or her country of origin. In Jia, an ascendant family member requested her residence card three months after moving to Sweden. In Reyes, a descendant applied for a residence card 26 days after entering Sweden. In Rahman, other family members (those covered by Article 3(2) and not by Article 2(2) of the Citizenship Directive), requested the residence card before moving to the United Kingdom from their country of origin. The place for assessing dependency at the moment when the residence cards were requested in those cases could therefore only be the country of origin in which those family members lived before deciding to join the Union citizen.

31.However, Ms XXX was already receiving care in Belgium for a significant amount of time. In order to conclude whether or not she is a dependant, should an assessment be made of her situation in her country of origin, as it was six years ago (in 2011), or as it would have been in 2017 had she not relocated?

32.That question of ‘geography of dependency’ is the overarching issue that motivates all the questions referred in the present case.

33.Before answering the referring court’s questions, I would like to highlight some issues, relevant for the present case, that have already been settled by the case-law.

34.There are several elements, which are relevant for the present case, that I consider settled in the case-law of the Court.

35.First, it follows from the judgments in Lebon (13) and Jia (14) that dependency is the result of a factual situation in which care is provided to a family member by a mobile Union citizen. (15)

36.Second, the need for care has to be real. Thus, in Jia, the Court explained that family members who seek to rely on the Citizenship Directive in order to acquire the right of residence must, taking into account their financial and social conditions, be in a situation in which they cannot support themselves. (16)

37.Third, it follows from the case-law that dependency at least encompasses need for material support. (17) Thus, in Jia, the Court was faced with the financial dependency of a TCN direct ascendant (mother) on her son and daughter-in-law. (18) In Reyes, the support at issue consisted in financial transfers to a TCN daughter by her step-father. (19) A similar kind of support is at issue in the present case, as the applicant’s proof of dependency was partially refused on the basis of financial documents that were considered to be too old.

38.Fourth, the right of residence arises automatically when the constituent elements of dependency come to light, namely (i) a real need for care on the part of the direct ascendant (or descendant) and (ii) a willingness on the part of the mobile Union citizen to provide such care. Neither a residence card nor a registration certificate is constitutive of the right of residence, as such documents are merely declaratory. (20)

39.Despite its declaratory nature, there is, as has already been explained (see point 27 of the present Opinion) an obligation on the part of dependent TCN relatives to request a residence card. (21) Such a residence card is important to provide for legal certainty concerning the existence of the right of residence and thus to facilitate the exercise of that right and the integration of a family member into the host Member State. (22) Furthermore, when a family member is a TCN, as in the present case, a residence card facilitates the free movement of that person within the European Union, and his or her return to the host Member state without unnecessary administrative obstacles. (23) However, non-observance of the obligation to request the residence card does not result in the loss of the right of residence, such a card not being constitutive of the right of residence. (24)

40.In summary, it follows from the case-law that where a direct ascendant of a mobile Union citizen is in such a factual situation that he or she has a real need for care from that mobile Union citizen (or his or her spouse or partner), the Citizenship Directive automatically provides that direct ascendant with the right of residence in the host Member State.

41.With the foregoing in mind, I will now turn to the questions referred.

42.By its first question, the referring court asks whether, when assessing dependency as required by Article 2(2)(d) of the Citizenship Directive, the national authorities must take into consideration the situation of a direct ascendant of a mobile Union citizen who is already in the territory of the host Member State.

43.That question could be understood in two ways: (i) as asking whether the application for a residence card by such a person should be assessed at all, or (ii) whether, when examining the request, it is only relevant to address the situation as it existed before the applicant relocated to the host Member State. In either case, that question raises the issue of geography – is the situation of the applicant in his or her country of origin decisive for assessing dependency?

44.In other words, in order to prove her dependency and thus be recognised as enjoying a right of residence on the basis of the Citizenship Directive, is it necessary that Ms XXX was dependent on AL and N.E.K.’s household while she still lived in her country of origin?

45.The participants in these proceedings offered four different proposals as to the factors to be assessed by the competent authorities when deciding whether to issue a residence card.

46.According to Ms XXX and the German Government, it is sufficient to prove the existence, in Belgium (the host Member State), of the need for care at the moment of the request for the residence card, which, in the present case, was submitted in 2017.

47.The Belgian Government’s position is somewhat confusing. That government has explained that Ms XXX was required to prove that she was a dependant at the moment when she applied for the residence card, which, in the present case, was in 2017, but it was not clear whether she was required to prove that she was a dependant in Belgium or in her country of origin. That government clarified at the hearing that the Belgian authorities are not at all concerned with the situation in Belgium, but only with Ms XXX’s situation in her country of origin. Nevertheless, it has also stated that Ms XXX was not required to provide documentary evidence that she would have been a dependant in her country of origin in 2017, had she returned to live there.

48.The Commission and the Danish Government consider that dependency has to exist in the country of origin at the moment when the direct ascendant applies to join the Union citizen and enters the European Union for that purpose for the first time. After the Court’s judgment in Chief Appeals Officer, they consider that dependency must also exist at the moment when the residence card is requested, if this is distant in time from the moment of relocation to the host Member State. In addition, the Commission has explained that this is necessary in order to avoid the issuance of a card which is no longer justified. (25)

49.In the Commission’s and Danish Government’s view, for this latter assessment, the authorities would need to consider whether the ascendant is a dependant in the host Member State and not whether she would be a dependant in her country of origin. Thus, the Danish Government explains that in a situation such as that in the present case, the Danish authorities would request two types of documentation, namely (i) older documentation dating from 2008, 2009 and 2010, that is, the period before arrival, showing that the person was dependant in his or her country of origin, and (ii) newer documentation proving that the situation of dependency continues to exist in the host Member State, at the moment of the request.

50.Lastly, according to the Czech Government, the condition of dependency could be fulfilled either in the State of origin or in the host Member State.

51.In my opinion, the need for care in the country of origin is not a condition for being dependent in the sense of Article 2(2)(d) of the Citizenship Directive.

52.Neither the text, context or purpose of the Citizenship Directive, nor the case-law relating to that directive, require that the family member of the mobile Union citizen be a dependant in his or her country of origin before joining the mobile Union citizen or that he or she would have been a dependant there had he or she returned.

53.In order for there to be a right of residence based on dependency, and, therefore, in order for the residence card to be issued, it is sufficient that the direct ascendant is dependent on a mobile Union citizen at the moment when the application for that card is made. The location in which such dependency arises is irrelevant.

(a) The Citizenship Directive does not link the existence of the right of residence to any geographical condition

54.In terms of the requirement of dependency in the country of origin, I am inclined to agree with Ms XXX that there is no such requirement in the Citizenship Directive.

(1) Wording, context and legislative history

55.If we begin with the wording of the Citizenship Directive, Article 2(2)(d), unlike Article 3(2)(a), (26) does not refer to the country from which a family member has come. This provision merely requires that dependency exists, without any reference as to where it must exist.

56.If Article 2(2)(d) is placed in the wider context of the Citizenship Directive, Article 10(2)(d) thereof, which relates to the issuance of the residence card, requires generally that documentary evidence proving that the conditions of Article 2(2)(d) are met be submitted by the direct ascendant. It does not specify that such evidence must originate in the country of origin of the ascendant. (27)

57.The legislative history can also be interpreted as indicating that a geographical requirement is not intended. Whereas Directive 68/360/EEC (28) did require documentary evidence from the country of origin, that directive was repealed and replaced by the Citizenship Directive, which no longer contains such a requirement in relation to direct ascendants.

(2) Case-law

58.The participants’ arguments concerning the place in which dependency must exist also revolved around one paragraph of the judgment in Jia, which they interpreted differently. In paragraph 37 of that judgment the Court stated: ‘the need for material support must exist in the State of origin of those relatives or the State whence they came at the moment when they apply to join the Community national’. The Court reached similar findings in the judgments in Rahman (29) and Reyes (30).

59.This statement can be read as meaning that dependency must exist in the country of origin. Alternatively, it could be understood as suggesting that dependency is examined at the moment of application, which, in the context of the judgments in Jia, Reyes and Rahman, was (almost) concomitant with the situation of the ascendants at issue in their countries of origin.

60.All of the participants, except Ms XXX and the German Government, interpreted paragraph 37 of Jia as meaning that dependency must already exist in the country of origin before a family member joins the mobile Union citizen.

61.By contrast, Ms XXX, claimed that, if read in the context of the circumstances of those cases, the statement from Jia and other similarly worded judgments does not support the foregoing conclusion.

62.I agree with the latter interpretation that paragraph 37 of the judgment in Jia does not support the conclusion that the requirement that the need for care existed in the country of origin is a condition laid down in Article 2(2)(d) and Article 7(2) of the Citizenship Directive.

63. That statement from the judgment in Jia, reiterated in judgments in Rahman and Reyes

must be read in their own contexts, and could not be automatically applied in order to answer the question raised by that case. In that case, the Court explained that, in <i>Reyes</i>, it had been invited to consider the conditions to be satisfied at the moment when the person concerned applies for a derived right of residence in the host Member State, and not on the conditions to be satisfied by that person in order to retain that right. (32)

66.

In the present case, the Court is also invited to clarify a different issue from those raised by the previous cases. The issue in this case is whether a dependant’s situation in the country of origin matters for the assessment of dependency where, unlike the situation in the judgments in <i>Jia </i>and<i> Reyes</i>, a significant amount of time has elapsed between the relocation from the country of origin and the application for the residence card.

67.

The previous cases do not answer that question and cannot, therefore, be used mechanically to resolve the issue in the present case.

(3) <i>The relevance of the judgment in </i>Chief Appeals Officer

68.

The interpretation of the judgment in <i>Chief Appeals Officer </i> provided by some of the participants in the present proceedings suggests that the concept of dependency has a temporal dimension in addition to a geographical dimension. According to that interpretation, dependency must indeed arise in the country of origin, but it must then also be maintained in the host Member State. Therefore, if there is a considerable time lapse between the moment of relocation and the moment of application for the residence card, two places are relevant for assessing dependency – the country of origin (in the past) and the host Member State (in the present).

69.

That is not my understanding of the Court’s findings in the judgment in <i>Chief Appeals Officer</i>.

70.

In response to one of the questions in that case, the Court held that, under the Citizenship Directive, a direct ascendant retains the right of residence for as long as he or she remains a dependant, and that this right can be lost if dependency no longer exists. (33) The Court did not imply that dependency had to start when the family member is still in his or her country of origin. In that case, the Court was not invited to rule on where dependency must arise. The crux of the matter was, rather, that dependency must exist at the moment when the ascendant submits the request for a social benefit. Rather than ruling on where dependency must arise, the Court merely explained that one cannot conclude that dependency exists simply because it had existed at an earlier point in time.

71.

Therefore, rather than holding that dependency must arise in the country of origin, the Court, in the judgment in <i>Chief Appeals Officer</i>, only confirms that it must exist at the moment when the dependent family member requests a certain right based on his or her right of residence in the host Member State.

(4) <i>Purpose of the Citizenship Directive </i>

72.

The opening recitals of the Citizenship Directive suggest that the right to family reunification made possible by that directive relates to the protection of Union citizens, not third-country nationals.

73.

The right of all Union citizens to move and reside freely within the territory of the Member States protected by that directive is, according to recital 5 thereof, to be exercised under objective conditions of freedom and dignity.

74.

The Court has recognised (34) that respect for the right to family life, as guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 8 of the European Convention on Human Rights (ECHR), is one of the conditions that enables the enjoyment of citizenship rights under the condition of dignity.

75.

Therefore, in order to ensure the right to family life, ascendant family members (35) are granted rights, even if only derived rights, to enter and reside within the territory of the European Union to the extent that this is necessary in order to prevent obstacles to the movement of Union citizens.

76.

Legislation rarely has only one objective. The Citizenship Directive is no exception. It is intended not only to grant rights, but also to limit them by imposing certain conditions on the exercise thereof. (36)

77.

As pointed out by the Danish Government, the Citizenship Directive is the result of balancing the need to enable the exercise of the right of residence of Union citizens and their family members and the legitimate interest of host Member States in ensuring that those persons do not constitute an unnecessary (financial) burden.

78.

Does the proposed interpretation, according to which the right of residence of a direct ascendant is not conditioned by the requirement that the need for care arose in the country of origin before relocation to the host Member State, disturb that balance reached in the EU legislative process?

79.

In my view, it does not.

80.

It is true that the Commission’s original proposal for this directive did not contain any qualification as to the direct ascendants who could join the Union citizen. The condition that such a person be dependent was added in the course of the legislative procedure. (37) Even if, as I have explained elsewhere, (38) the reasons for such a legislative change are not expressed, the intention to limit the number of ascendants who can join the Union citizen is obvious.

81.

That intention is expressed by the requirement that an ascendant be dependent on the Union citizen. In the light of the right to family life guaranteed to mobile Union citizens, there is no justification for limiting that right further by requiring that dependency must exist in the country of origin.

82.

Therefore, in the light of the purpose of the Citizenship Directive, and as expressed by the German Government, it is necessary simply to demonstrate that there is a need for care and a willingness to provide that care. If this is demonstrated, notwithstanding the place where the family member needs care from the mobile Union citizen, a derived right of residence arises automatically on the basis of the Citizenship Directive.

(b) <i><b>The </b><b>Citizenship Directive </b><b>does not </b><b>link the existence of the right of residence </b><b>with the </b><b>moment of e</b><b>ntry</b><b> into the host Member State</b><b> </b></i>

83.

In my view, the Citizenship Directive does not make the derived right of residence of a dependent ascendant conditional on the requirement that that person must have entered the host country with the intention of joining the mobile Union citizen as his or her dependant. (39)

84.

The right of entry and the right of residence are regulated by different provisions of the Citizenship Directive, Article 5 and Article 7 respectively.

85.

Article 7(1)(d) of the Citizenship Directive confers on family members the right to reside in a host Member State. Article 7 does not, however, refer to Article 5 which regulates the right of entry. There is therefore no requirement to obtain a special right of entry for the purpose of joining the mobile Union citizen in order to be able to acquire the right of residence. The only requirement for enjoying the right of residence on the basis of Article 7(2) of the Citizenship Directive is that the person at issue be a family member within the meaning of Article 2(2) of that directive, a concept which includes dependent ascendants of the mobile Union citizen, as described in its Article 7(1)(a) to (c) thereof. There is no requirement in the Citizenship Directive that such a person must have entered the Union territory on the ground of being dependent on the mobile Union citizen.

86.

In summary, dependency of the ascendant family member of the mobile Union citizen and the connected right of residence require only that that person be in need of care from the mobile Union citizen, regardless of the place where such a need for care exists. Dependency is not linked to any particular place, in the sense that the need for care had to arise in the country of origin prior to the relocation to the host Member State. Likewise, there is no requirement in the Citizenship Directive that, for the acquisition of the derived right of residence, the family member must enter the host Member State with the intention of joining the mobile Union citizen who provides care for him or her. The right to reside depends exclusively on the existence of the relationship of dependency and the Citizenship Directive does not impose any additional conditions thereto.

87.

For that reason, I propose that the Court answer the first question as follows: in the context of the examination of the concept of dependency for the purposes of Article 2(2)(d) of the Citizenship Directive, account should be taken of the situation of a direct ascendant of a mobile Union citizen who is already in the territory of the State in which the sponsor is established.

88.

If the situation of an applicant who is already in the host Member State is to be taken into consideration, the referring court asks whether it is relevant if that applicant is legally in the territory of that State.

89.

It follows from the case-law that the right of residence of a direct ascendant (or descendant) exists as an automatic consequence of the relationship of dependency. Thus, if the real need of the ascendant to receive care from the mobile Union citizen exists, the right of residence also automatically exists with regard to that ascendant.

90.

The stay in the host Member State of an ascendant who is a <i>dependant </i>cannot therefore be illegal, as the right to stay in such a situation is provided for in the Citizenship Directive.

91.

There is no additional requirement to the real need to receive care, including the legality of prior stay that conditions the existence of the right of residence on the basis of Article 7(1)(d) or (2) of the Citizenship Directive.(40)

92.

At this point, I would also note that Ms XXX seemed to be in need of care from her son and his partner’s household from her arrival in Belgium, and, subject to verification by national court, even prior to that in her country of origin. The fact that, in 2011, she was refused a residence permit on the basis of national law does not alter the fact that she could rely on her dependency on that household on the basis of the Citizenship Directive.

93.

Furthermore, given that the right of residence on the basis of the Citizenship Directive arises automatically if the relevant relationship of dependency exists, and is not conditional on the issuance of the residence card, it is not relevant that the authorities refused to issue such a card in 2015 and have issued an order for Ms XXX to leave Belgium. Dependency being a matter of fact, it would appear that Ms XXX had a right of residence from the moment of her arrival in Belgium.

94.

It also does not appear that there is any reason to believe that that dependency ceased at any point up until today, which leads to the conclusion that she has spent more than five years as a lawful resident on the basis of the Citizenship Directive in Belgium, and has therefore also acquired the right to permanent residence. (41) This also means that the decisions refusing to issue her with a residence card and ordering her expulsion from Belgium are unlawful. Those facts, however, must be verified by the national court.

95.

I therefore propose that the Court answer the second question as follows: a direct ascendant who is dependent on a mobile Union citizen, within the meaning of Article 2(2) of the Citizenship Directive, is staying legally in the territory of the host Member State notwithstanding any decisions stating otherwise adopted under national law. If, prior to becoming a dependant, the applicant was, according to national law, staying illegally on the territory of the host Member State, this does not subsequently affect his or her rights based on Article 7(1)(d) and Article 7(2) of the Citizenship Directive.

96.

By its third and fourth questions, the referring court seeks to determine how a direct ascendant of a mobile Union citizen should demonstrate dependency in order to obtain a residence card.

97.

By the third question, the referring court asks, in essence, whether a direct ascendant of a mobile Union citizen applying for a residence card can prove the fact of his or her dependency by use of documentary evidence dating back to the time before he or she relocated to the host Member State even if significant time has elapsed since then. If such documentary evidence is not relevant, or sufficient, by its fourth question, the referring court wishes to determine how the applicant may demonstrate his or her dependency.

98.

The question of how dependency may be proven depends on why that dependency has to be proven in the first place.

99.

In the present case, Ms XXX has to prove dependency in order to be issued with a residence card.

100.

The purpose of the residence card is to declare that, as of the moment it is issued, a family member enjoys the right of residence on the basis of Article 7 of the Citizenship Directive. In that regard, it seems to me that the only relevant question is whether dependency exists in the place and at the moment when the card is requested.

101.

The situation would be different if a certificate of residence would have a different purpose, for instance in order to confirm that dependency arose at certain point and still exists at the moment when the certificate is issued. That might be important for claiming permanent residence status, as such status depends on continuous legal residence for a period of five years. In such a situation, both the moment when dependency arose, which might be in the past, and the actual moment, are relevant.

102.

However, it appears from the order for reference that Ms XXX requested, in effect, a residence card only as of the moment of (the third) submission of such a request, in 2017.

103.

To my mind, therefore, if, indeed, the residence card in the present case is required only as confirmation that the right of residence exists <i>at the moment</i> of such a request and will continue to exist in the future, unless it is revoked, there is no justification for requiring proof of Ms XXX’s dependency in the country of origin. It suffices that she proves that she is in need of care and that her son’s partner is willing to provide such care in Belgium at the moment when she submits the request for the residence card.

104.

In that regard, Ms XXX cannot rely on the evidence dating back to 2011, but has to prove her dependency by means of contemporary evidence that demonstrates her need for care in 2017.

105.

Proof of dependency at the moment of submission of the request for a residence card can be adduced by any appropriate means, (42) depending on the individual situation of the family member concerned. If the residence card is requested shortly after the arrival of a family member in the host Member State, a document certifying that that person was already receiving payments from the mobile Union citizen on his or her account in the country of origin might be relevant, but not mandatory. If, however, the family member is already in the host Member State, evidence that he or she lives with the mobile Union citizen, or that that citizen pays for his or her accommodation, food or other basic needs in the host Member State might be relevant for demonstrating material dependency. It might indeed be necessary to ask for some documentary evidence (for example, evidence that the family member has no other sources of income from past employment or from property) from the country of origin, provided that it is not impossible to acquire such evidence. However, this serves to demonstrate that the family member is not in position to support himself or herself at the moment he or she is submitting the request for a residence card and in the place from which that request is being submitted, and not that he or she was or would be in such a position in his or her country of origin.

106.

If a dependent family member needs a decision certifying his or her continuing dependency, as could be required when applying for permanent residency, it might be necessary to prove that dependency existed in the past, including in the country of origin. In such a case, proof of dependency in the country of origin before moving to the host Member State can be based on the old documentary evidence. There is no justification to require new documentation showing that Ms XXX was already dependent in her country of origin before she joined her family in Belgium if such documents have already been submitted to the deciding authority.

107.

I therefore propose that the Court answer the third question as follows: a direct ascendant of a mobile Union citizen cannot rely on documents issued several years prior to the submission of the request for a residence card in order to prove his or her dependency on the mobile Union citizen. Such an ascendant has to demonstrate his or her dependency in the host Member State at the moment of the submission of the request for a residence card.

108.

In response to the fourth question, I suggest that the Court answer that such proof can be adduced by any appropriate means which may demonstrate that the direct ascendant at issue is in real need of care from the mobile Union citizen in the host Member State at the moment of submission of the request for a residence card. Such proof might necessitate new documents from the country of origin proving the lack or inadequacy of own resources from past working relationships or property. Such documents serve to prove the need for care in the host Member State at the moment of the submission of the request and not the need for care in the country of origin.

109.

In the light of the foregoing, I propose that the Court of Justice answer the questions referred by the Conseil d’État (Council of State, Belgium) as follows:

(1) When examining the existence of dependency in the sense of Article 2(2)(d) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, national authorities should take account of the situation of a direct ascendant of a mobile Union citizen who is already in the territory of the State in which the sponsor is established.

(2) A direct ascendant who is dependent on a mobile Union citizen, in the sense of Article 2(2) of Directive 2004/38, is staying legally in the territory of the host Member State, notwithstanding any decisions adopted under national law stating otherwise. If, prior to becoming a dependant, the applicant was, according to national law, staying illegally on the territory of the host Member State, this does not subsequently affect his or her rights based on Article 7(1)(d) and Article 7(2) of Directive 2004/38.

(3) A direct ascendant of a mobile Union citizen cannot rely on the documents issued several years prior to the submission of the request for a residence card in order to prove his or her dependency on the mobile Union citizen. Such an ascendant has to demonstrate his or her dependency in the host Member State at the moment of the submission of the request for a residence card.

(4) Proof of dependency can be adduced by any appropriate means which may demonstrate that the direct ascendant at issue is in real need of care from the mobile Union citizen in the host Member State at the moment of submission of the request for a residence card. Such proof might necessitate new documents from the country of origin proving the lack or inadequacy of own resources from past working relationships or property. Such documents serve to prove the need for care in the host Member State at the moment of the submission of the request and not the need for care in the country of origin.

Original language: English.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77; ‘the Citizenship Directive’).

3

It is not disputed that AL and Ms N.E.K. live in a household recognised under national law as a family unit. Ms N.E.K. made a declaration of cohabitation with AL to the Registrar of Anderlecht (Belgium) on 11 February 2005, long before Ms XXX relocated to live with them.

The Citizenship Directive grants rights only to relatives of Union citizens who have moved from their state of origin to another Member State (‘a mobile Union citizen’). Thus, the question whether AL, a Belgian national can be joined by his mother in Belgium is a matter of Belgian law. In that respect, see Article 3(1) of the Citizenship Directive. See also, <i>ex multis</i>, judgments of 12 March 2014, <i>O. and B. </i>(C‑456/12, EU:C:2014:135, paragraphs 42 and 43), and of 14 November 2017, <i>Lounes</i>(C‑165/16, EU:C:2017:862, paragraph 33).

5

Judgment of 9 January 2007 (C‑1/05, EU:C:2007:1, ‘the judgment in <i>Jia</i>’).

6

Judgment of 21 December 2023, <i>Chief Appeals Officer and Others</i>(C‑488/21, EU:C:2023:1013, ‘the judgment in <i>Chief Appeals Officer</i>’).

7

Similarly, in judgment of 9 January 2007, <i>Jia</i>(C‑1/05, EU:C:2007:1), Ms Jia, who sought to rely on the Citizenship Directive as a dependent direct ascendant, was the mother of a Chinese national whose spouse was a German national living with him in Sweden.

8

In the judgment in <i>Reyes</i>, the Norwegian spouse of a German national who moved to Sweden, where they lived in a common household, financially supported his wife’s daughter. See, to that effect, judgment of 16 January 2014, <i>Reyes </i>(C‑423/12, EU:C:2014:16, ‘the judgment in <i>Reyes</i>’, paragraph 11).

Direct ascendants who are EU citizens do not need a residence card. However, host Member States may require that they register with relevant authorities, who may issue them a registration certificate. See, in that respect, Article 8 of the Citizenship Directive.

10

See, judgments of 9 January 2007, <i>Jia</i>(C‑1/05, EU:C:2007:1, paragraph 17); of 5 September 2012, <i>Rahman and Others</i>(C‑83/11, EU:C:2012:519, ‘the judgment in <i>Rahman</i>’, paragraph 14); and of 16 January 2014, <i>Reyes</i>(C‑423/12, EU:C:2014:16, paragraph 12).

11

In the judgment of 18 June 1987, <i>Lebon</i>(316/85, EU:C:1987:302, ‘the judgment in <i>Lebon</i>’), Ms Lebon applied for and was refused a minimex in Belgium, see paragraph 2. In <i>Chief Appeals Officer</i>, Ms GV applied for and was refused a disability allowance in Ireland, see paragraph 2 of the judgment of 21 December 2023, <i>Chief Appeals Officer </i>(C‑488/21, EU:C:2023:1013).

12

Although Ms XXX applied for a residence card for the first time only two months after entering Belgium (see point 5 of the present Opinion), the present case concerns only her third application lodged in 2017 (see point 10 of the present Opinion).

13

Judgment of 18 June 1987, <i>Lebon</i>(316/85, EU:C:1987:302, paragraph 22).

14

Judgment of 9 January 2007, <i>Jia</i>(C‑1/05, EU:C:2007:1, paragraph 37). See also judgment of 16 January 2014, <i>Reyes</i>(C‑423/12, EU:C:2014:16, paragraph 21).

15

After confirming that dependency is a result of a factual situation, the Court has explained in <i>Zhu and Chen</i>, that that situation must be such that the family member at issue depends on the mobile Union citizen, and not vice versa. For that reason, Ms Chen, a TCN mother of a Union citizen who had the right to reside in the United Kingdom, could not claim her right of residence on the basis of the EU legislation that was in the meantime replaced by the Citizenship Directive, as she was not dependent on her daughter, but rather the reverse, her daughter was dependent on her. See judgment of 19 October 2004, <i>Zhu and Chen</i>(C‑200/02, EU:C:2004:639, paragraphs 43 and 44).

16

Judgment of 9 January 2007, <i>Jia</i>(C‑1/05, EU:C:2007:1, paragraph 37).

17

In that respect, I proposed in my Opinion in <i>Chief Appeals Officer</i> that the Court adopt a wide interpretation of the concept of dependency to encompass not only material, but also emotional dependency (C‑488/21, EU:C:2023:115, point 58). In its judgment in that case, the Court has not dealt with that issue. I, therefore, consider the issue to remain open. However, this distinction need not be dealt with here, as the present case concerns material care.

18

See, for example, judgment of 9 January 2007, <i>Jia</i>(C‑1/05, EU:C:2007:1, paragraphs 18, 19 or 37).

Judgment of 16 January 2014, <i>Reyes</i>(C‑423/12, EU:C:2014:16, paragraph 15).

See, in that respect, judgment of 27 June 2018, <i>Diallo</i>(C‑246/17, EU:C:2018:499, , paragraphs 48 and 49).

21

In Article 9(2), the Citizenship Directive imposes on the family members who are not EU citizens an obligation to apply for a residence card, which cannot be less than three months from the date of arrival in the host country, but the precise deadline may be set by each Member State.

22

See, to that effect, judgment of 27 June 2018, <i>Diallo</i>(C‑246/17, EU:C:2018:499, paragraph 66).

23

See in that respect recital 8 of the Citizenship Directive.

Non-observance of the deadline imposed by a Member State to request a residence card may, according to Article 9(3) of the Citizenship Directive lead to the liability of the family member at issue to proportionate and non-discriminatory sanctions. However, the Court has confirmed that the failure to request the residence card cannot lead to the loss of the right to residence. See, to that effect, judgment of 25 July 2002, <i>MRAX</i>(C‑459/99, EU:C:2002:461, paragraphs 74 and 79).

25

It might be added that the Court considered, in its judgment of 27 June 2018, <i>Diallo</i> (C‑246/17, EU:C:2018:499, paragraphs 50 and 55), that Member States are prevented from issuing a residence card on the basis of the Citizenship Directive if they are not satisfied with the proof of dependency. However, they may recognise the right of residence and certify it with appropriate means on the basis of national law alone, even in the absence of the proof of dependency.

—

26Article 3(2) of the Citizenship Directive relates to family members other than those listed in Article 2(2) thereof, for whom Member States must facilitate entry and residence, but such rights do not arise directly on the basis of that directive.

27By contrast, Article 10(2)(e) of the Citizenship Directive refers to the documents issued by the relevant authority in the country of origin in relation to other family members from Article 3(2) of that directive.

28Council Directive of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ English Special Edition: Series I Volume 1968(II), p. 485).

29Judgment of 5 September 2012, <i>Rahman and Others</i> (C‑83/11, EU:C:2012:519, paragraph 33).

30Judgment of 16 January 2014, <i>Reyes</i> (C‑423/12, EU:C:2014:16, paragraph 30).

31See, in that respect, question 2a, as reproduced in paragraph 24 of the judgment of 9 January 2007, <i>Jia</i> (C‑1/05, EU:C:2007:1).

32See judgment of 21 December 2023, <i>Chief Appeals Officer and Others</i> (C‑488/21, EU:C:2023:1013, paragraph 58).

33See, to that effect, judgment of 21 December 2023, <i>Chief Appeals Officer </i> (C‑488/21, EU:C:2023:1013, paragraphs 60 and 61). Dependency may cease if the ascendant’s need for care by family members disappears, or if the family members who are mobile Union citizens stop providing the necessary support.

34See, in that respect, judgment of 25 July 2002, <i>MRAX</i> (C‑459/99, EU:C:2002:461, paragraph 53).

35In that regard, the European Court of Human Rights (ECtHR) has ruled that the relationship between adults and their parents constitute family life protected under Article 8 ECHR, even where the adult did not live with his or her parents or siblings and had formed a separate household and family. See, in that respect, judgments of the ECtHR of 18 February 1991, <i>Moustaquim </i><i>v. </i><i>Belgium</i> (CE:ECHR:1991:0218JUD001231386, §§ 35 and 45-46), and of 26 September 1997, <i>El Boujaïdi </i><i>v. </i><i>France</i> (CE:ECHR:1997:0926JUD002561394, § 33).

36See Article 1(a) of the Citizenship Directive which states that that directive lays down the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members.

37Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2001) 257 final) (OJ 2001 C 270 E, p. 150). For a more detailed account, see De Somer, M. ‘Identifying Member States Interests’, <i>Precedents and Judicial Politics in EU Immigration Law</i>, Palgrave Macmillan Cham, 2019, Section 5.2.2 ‘The Citizenship Directive’, p. 113; Guild, E., Peers, S., and Tomkins, J., ‘General Provisions’, <i>The EU Citizenship Directive: A Commentary</i>, 2nd ed., Oxford University Press, Oxford, 2019, pp. 42 to 46; Nic Shuibhne, N., <i>EU Citizenship Law</i>, Oxford University Press, Oxford, 2023, pp. 174 to 179.

38See my Opinion in <i>Chief Appeals Officer </i><i>and Others </i>(C‑488/21, EU:C:2023:115, point 55).

39Implying the connectivity between the entry and the right of residence might explain why the referring court asked, by its first question, whether the national authorities must assess the situation of a person who did not enter the host Member State as a dependent family member, but on some other ground, such as a tourist visa.

40See, in that respect, judgment of 25 July 2008, <i>Metock and Others</i> (C‑127/08, EU:C:2008:449, paragraphs 50 and 51). That case concerned a group of TCN spouses of mobile Union citizens residing in Ireland, whose residence cards were refused on the ground that they had not lawfully resided in another EU Member State before joining the Union citizens in Ireland, a condition which was imposed by national law. In that judgment, the Court stated that ‘the definition of family members in point 2 of Article 2 of Directive 2004/38 does not distinguish according to whether or not they have already resided lawfully in another Member State’ and that Article 7(2) of the Citizenship Directive grants a right of residence to family members ‘without any reference to the place or conditions of residence they had before arriving in that Member State’.

41See Article 16 of the Citizenship Directive.

42See to that effect, judgment of 9 January 2007, <i>Jia</i> (C‑1/05, EU:C:2007:1, paragraph 43).