27.10.2012

Official Journal of the European Union

C 331/6

(Case C-83/11) (*)

(Directive 2004/38/EC - Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States - Article 3(2) - Obligation to facilitate, in accordance with national legislation, entry and residence for ‘any other family members’ who are dependants of a Union citizen)

(2012/C 331/09)

Language of the case: English

Referring court

Parties to the main proceedings

Appellant: Secretary of State for the Home Department

Respondents: Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

Re:

Reference for a preliminary ruling — Upper Tribunal — Interpretation of Article 3(2) and Article 10(2) 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 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) — Concept of ‘any other family members’ of a Union citizen as referred to in Article 3(2) of the directive — Dependent family members of a married couple where one spouse is a third country national — Family members who are not direct ascendants of the married couple

Operative part of the judgment

1.On a proper construction of Article 3(2) 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 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:

—the Member States are not required to grant every application for entry or residence submitted by family members of a Union citizen who do not fall under the definition in Article 2(2) of that directive, even if they show, in accordance with Article 10(2) thereof, that they are dependants of that citizen;

—it is, however, incumbent upon the Member States to ensure that their legislation contains criteria which enable those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons;

—the Member States have a wide discretion when selecting those criteria, but the criteria must be consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2) and must not deprive that provision of its effectiveness; and

—every applicant is entitled to a judicial review of whether the national legislation and its application satisfy those conditions.

2.In order to fall within the category, referred to in Article 3(2) of Directive 2004/38, of family members who are ‘dependants’ of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes, at the very least at the time when he applies to join the Union citizen on whom he is dependent.

3.On a proper construction of Article 3(2) of Directive 2004/38, the Member States may, in the exercise of their discretion, impose particular requirements relating to the nature and duration of dependence, provided that those requirements are consistent with the normal meaning of the words relating to the dependence referred to in Article 3(2)(a) of the directive and do not deprive that provision of its effectiveness.

4.The question whether issue of the residence card referred to in Article 10 of Directive 2004/38 may be conditional on the requirement that the situation of dependence for the purposes of Article 3(2)(a) of that directive has endured in the host Member State does not fall within the scope of the directive.

* Language of the case: English.

(1) OJ C 145, 14.5.2011.