Alfredo Rendón Marín v Administración del Estado.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rosas
• ECLI: ECLI:EU:C:2016:675
• Docket Number: C-165/14
• Date: 13 September 2016
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

13 September 2016 ( *1 )

‛Reference for a preliminary ruling — Citizenship of the Union — Articles 20 and 21 TFEU — Directive 2004/38/EC — Right of a third-country national with a criminal record to reside in a Member State — Parent having sole care of two minor children, who are Union citizens — First child possessing the nationality of the Member State of residence — Second child possessing the nationality of another Member State — National legislation precluding grant of a residence permit to the father because of his criminal record — Refusal of residence capable of resulting in the children being obliged to leave the territory of the European Union’

In Case C‑165/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 20 March 2014, received at the Court on 7 April 2014, in the proceedings

Alfredo Rendón Marín

v

Administración del Estado,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, M. Ilešič, L. Bay Larsen, C. Toader, D. Šváby, F. Biltgen and C. Lycourgos, Presidents of Chambers, A. Rosas (Rapporteur), E. Juhász, A. Borg Barthet, M. Safjan, M. Berger, A. Prechal and K. Jürimäe, Judges,

Advocate General: M. Szpunar,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 June 2015,

after considering the observations submitted on behalf of:

— Mr Rendón Marín, by I. Aránzazu Triguero Hernández and L. De Rossi, abogadas,

— the Spanish Government, by A. Rubio González and L. Banciella Rodríguez-Miñón, acting as Agents,

— the Danish Government, by C. Thorning and M. Wolff, acting as Agents,

— the Greek Government, by T. Papadopoulou, acting as Agent,

— the French Government, by D. Colas and R. Coesme, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, and L. D’Ascia, avvocato dello Stato,

— the Netherlands Government, by M. Bulterman and B. Koopman, acting as Agents,

— the Polish Government, by B. Majczyna, K. Pawłowska and M. Pawlicka, acting as Agents,

— the United Kingdom Government, by M. Holt and J. Beeko, acting as Agents, and D. Blundell, Barrister,

— the European Commission, by I. Martínez del Peral, C. Tufvesson, F. Castillo de la Torre and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 4 February 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 20 TFEU.

2 The request has been made in proceedings between Alfredo Rendón Marín — a third-country national and the father of Union citizens who are minors in his sole care who have been resident in Spain since birth — and Administración del Estado (State Administration, Spain) concerning the refusal of the Director General de Inmigración del Ministerio de Trabajo e Inmigración (Director-General of Immigration of the Ministry of Labour and Immigration), on account of Mr Rendón Marín’s criminal record, to grant him a residence permit on the basis of exceptional circumstances.

Legal context

EU law

3 As stated in recitals 23 and 24 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, and corrigenda at OJ 2004 L 229, p. 35, OJ 2005 L 30, p. 27, and OJ 2005 L 197, p. 34): ‘(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the [EC] Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin. (24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.’

4 Article 2 of Directive 2004/38, headed ‘Definitions’, states: ‘For the purpose of this Directive: 1. “Union citizen” means any person having the nationality of a Member State; 2. “family member” means: ... (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); 3. “host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.’

5 Article 3 of Directive 2004/38, headed ‘Beneficiaries’, provides: ‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them. 2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence ...; ... The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’

6 Article 7 of Directive 2004/38, headed ‘Right of residence for more than three months’, provides in paragraphs 1 and 2: ‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or ... (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’

7 In Chapter IV of Directive 2004/38, headed ‘Right of permanent residence’, Article 16, itself headed ‘General rule for Union citizens and their family members’, provides in paragraphs 1 and 2: ‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III. 2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.’

8 In Chapter VI of Directive 2004/38, which is headed ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’, Article 27(1) and (2) provides: ‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall...