Fresh out of the Court of Justice of the European Union is the interesting case of C-82/16 K.A. & Others v Belgium. A significant part of the decision deals with the 2008 Returns Directive, which does not apply to the UK. The remainder of the court’s judgment deals with the issue of whether an entry ban trumps the right to family reunification under EU law. The press summary is here.
The case was brought by seven applicants who were all family members of Belgian nationals. Applications were made for residence cards but the Belgian government refused to consider the applications given that there were extant entry bans in respect of every applicant. The Belgian authorities were candid that their standard practice was to reject such applications without taking into account the facts of the particular case, including the best interests of any children or the status of the Belgian family members as Union citizens. Throughout the proceedings, they maintained that each family member would have to leave Belgium and make an application for removal or suspension of the entry ban before any application for family reunification would be considered.
The main questions referred to the Court of Justice was whether this practice was contrary to EU law. The Belgian court also asked whether the applicants could claim a right to reside under EU law given that none of their Belgian family members had exercised their right to free movement.
The court opened by noting that the Treaty on the Functioning of the European Union:
do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizen’s freedom of movement.
In this respect, the court echoed its conclusion in C-34/09 Ruiz Zambrano that there were situations where, despite the Union citizen not having exercised their right to free movement, a right of residence should nonetheless be granted to a non-EU family member. The effectiveness of the Union citizenship would otherwise be undermined if the EU citizen would then require to leave the EU as a result. So, whilst the court agreed that there was a margin of appreciation as to how member states gave effect to the rights of third country nationals, a national procedural rule could not undermine the effectiveness of the treaty and the corresponding rights of EU nationals.
As a result, the court made clear that:
when the competent national authority receives, from a third-country national, an application for a right of residence for the purposes of family reunification with a Union citizen who is a national of the Member State concerned, that authority cannot refuse to examine that application solely on the ground that the third-country national is the subject of a ban on entering that Member State.
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The court added the caveat that where the refusal of a right of residence was based upon an applicant posing a genuine, present and sufficiently serious threat to the requirements of public policy or security, such a refusal would be compatible with EU law even if the EU national would be compelled to leave the EU. The court was also quick to point out that an applicant is under a “duty of honest cooperation” which obliges them, as soon as possible, to inform the national authorities of any changes of substance in their family life.
Judgment brings other member states in line with the UK
So what’s the upshot of all of this? Well, the court’s judgment cements the position that applicants who are subject to an entry ban under national law cannot be precluded from applying for a right to reside under EU law.
In the UK, the rules on entry bans are located at paragraphs A320 and 320(7B) in Part 9 of the Immigration Rules. For more on how to navigate the details of when a re-entry ban applies, see Nath’s excellent post here.
Because the Immigration Rules do not apply to applications made under EU law, the rules relating to re-entry bans have no effect on applications made under the EEA Regulations. The Home Office General Grounds for Refusal guidance makes this clear:
You cannot refuse an applicant who is a non-EEA family member under paragraph 320(7A) or 320(7B) if they are applying for entry clearance under the Immigration EEA Regulations 2016. This is because such applications are not covered by the Immigration Rules.
This has never been a particular problem in the UK, but it is interesting to see how other member states (like Belgium) are still stuck in their old ways. Presumably, this would require a wholesale restructuring of how their national authorities consider such applications which they simply weren’t prepared to do without the court directing them. This was particularly apparent when Advocate General Sharpston delivered her Opinion (which favoured the applicants’ arguments), and the Belgian authorities sought to make further submissions on the basis that the Advocate General had misrepresented the position in respect of the Returns Directive!
The other significant point is that an entry ban on its own, does not automatically mean that a person represents a genuine, present and sufficiently serious threat to public policy, security or health. That requires a fact-sensitive approach in each individual case and in which the applicant is bound to cooperate and inform the authorities of any material changes in the circumstances. Any failure in doing so may mean that the relevant authority cannot then be criticised for failing to take those factors into account.