26.1.2013

Official Journal of the European Union

C 26/11

(Joined Cases C-356/11 and C-357/11) (<span class="super">1</span>)

(Citizenship of the Union - Article 20 TFEU - Directive 2003/86/EC - Right to family reunification - Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals - Permanent right of residence in that Member State of the mothers who have been granted sole custody of the Union citizens - Change in composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals - Applications for family reunification in the Member State of origin of the Union citizens - Refusal of the right of residence to the new spouses on the ground of lack of sufficient resources - Right to respect for family life - Taking into consideration of the children’s best interests)

2013/C 26/19

Language of the case: Finnish

Referring court

Parties to the main proceedings

Applicants: O, S (C-356/11), Maahanmuuttovirasto (C-357/11)

Defendants: Maahanmuuttovirasto (C-356/11), L (C-357/11)

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 20 TFEU — Right to move and reside freely within the territory of the Member States — Right to family reunification — Residence permit in a Member State for a third-country national, resident without a permanent residence permit in the Member State, in a situation in which that person’s spouse, a third-country national, resides lawfully in that Member State and has a child with the nationality of that Member State, and the person is not the child’s parent and does not have parental responsibility for the child — Situation in which the spouses also have a child together, of third-country nationality, who resides with them and the spouse’s child in the Member State concerned

Operative part of the judgment

Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third country national, provided that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union, that being for the referring court to ascertain.

Applications for residence permits on the basis of family reunification such as those at issue in the main proceedings are covered by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life, and avoiding any undermining of the objective and the effectiveness of that directive. It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance with those requirements.

Language of the case: Finnish.