Murat Dereci and Others v Bundesministerium für Inneres.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2011:626
• Date: 29 September 2011
• Docket Number: C-256/11
• Procedure Type: Reference for a preliminary ruling

VIEW OF ADVOCATE GENERAL

Mengozzi

delivered on 29 September 2011 (1)

Case C‑256/11

Murat Dereci

Vishaka Heiml

Alban Kokollari

Izunna Emmanuel Maduike

Dragica Stevic

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

(Citizenship of the Union – Right of citizens of the Union and their family members to reside freely within the territory of a Member State – Situation in which the Union citizen resides in the Member State of which he is a national – Conditions governing the granting of a residence permit to family members who are nationals of non-member countries – Deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen – EEC‑Turkey Association Agreement – ‘Standstill’ clauses – Article 41 of the Additional Protocol – Article 13 of Decision No 1/80 of the Association Council)

I – Introduction

1. The present reference for a preliminary ruling, made by the Verwaltungsgerichtshof (Administrative Court, Austria), essentially concerns the interpretation of Article 20 TFEU and the scope of that provision following the judgments delivered in Ruiz Zambrano (2) and McCarthy. (3)

2. This reference has been made in five cases brought before the referring court, each of which seeks the annulment of appellate decisions confirming the refusal by the Bundesministerium für Inneres (Ministry for the Interior) to grant a residence permit to the claimants in the main proceedings, accompanied in some cases by a decision ordering their expulsion or removal from Austrian territory.

3. A common feature of the five cases is the fact that the claimants in the main proceedings are nationals of non-member countries and family members of Union citizens residing in Austria, who wish to live there with them.

4. The cases also have in common the fact that the Union citizens concerned have never exercised their right of free movement and that they are not dependent on the claimants in the main proceedings, who are members of their family, for their subsistence.

5. There are nevertheless a number of differences between the five cases in the main proceedings, which essentially relate to (a) the legal (Heiml and Kokollari cases) or illegal (Dereci and Maduike cases) character of the entry to Austria; (b) the legal or illegal character of residence (with the exception of the claimant in the main proceedings in the fifth case, Mrs Dragica Stevic, the other claimants in the main proceedings all resided unlawfully in Austria); (c) the family bond linking them with the Union citizen(s) concerned (husband and father of young children in the Dereci case; husband in the Heiml and Maduike cases; adult child in the Kokollari and Stevic cases) and (d) their possible economic dependence on those Union citizens (varying degrees of dependence of the national of a non-member country in all cases, with the exception of the Maduike case).

6. More specifically, in the first case in the main proceedings, Mr Murat Dereci, a Turkish national, entered Austria illegally in November 2001, married an Austrian citizen in July 2003, by whom he has had three minor children in 2006, 2007 and 2008, who are all also Austrian nationals. His application for a residence permit, submitted in June 2004, was assessed and refused following the entry into force, on 1 January 2006, of the Austrian Law on establishment and residence (Niederlassungs- und Aufenthaltsgesetz, NAG), under which, inter alia, applicants from non-member countries who wish to obtain a residence permit in Austria must remain outside the territory of that Member State pending the decision on their applications. The Austrian authorities therefore took the view that, from 1 January 2006, and even pending the decision on his application for a residence permit, Mr Dereci remained illegally in Austria. They also issued an expulsion order against him, against which a suspensory appeal was brought, which was not settled when the present reference for a preliminary ruling was made. According to the referring court, although Mr Dereci stated that he would be able to pursue an activity as an employed or self-employed person as a hairdresser if he were granted the residence permit, the Austrian authorities doubt that he would have sufficient resources to qualify for family reunification, since the family income was less than the statutory amount required by the provisions of the NAG. The Austrian authorities also considered that neither Union law nor Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed at Rome on 4 November 1950, requires a residence permit to be granted to Mr Dereci.

7. The claimant in the main proceedings in the second case, Mrs Vishaka Heiml, is a Sri Lankan national and married an Austrian citizen in May 2006. Having been issued a visa in January 2007, she entered Austria legally in February of the same year. In April 2007, she applied for a residence permit as a family member of an Austrian national. Whilst her husband has stable employment in Vienna, Mrs Heiml stated that she wished to continue her higher education studies at a university in that city, at which she had already been accepted. However, her application for a residence permit was rejected on the ground that upon the expiry of her visa, Mrs Heiml should have remained abroad pending the decision on her application. In addition, the Austrian authorities considered, as in the Dereci case, that Mrs Heiml could not rely on Union law or on Article 8 of the ECHR.

8. In the third case, Mr Alban Kokollari, who comes from Kosovo, entered Austria legally in 1984 with his parents, who were Yugoslavian nationals at the time, when he was just two years old. He held a residence permit until 2006, in respect of which he applied for an initial extension in that same year. Since he failed to produce certain documents, that application was rejected. In July 2007, Mr Kokollari made a fresh application for a residence permit on the ground, inter alia, that his mother, who was now an Austrian national and employed at a cleaning service, guaranteed his subsistence, whilst his father was in receipt of unemployment benefits. The application made by Mr Kokollari was rejected on the ground that since the rejection of his initial application for an extension in 2006, he should have left Austria and remained abroad pending the response to the application he submitted in July 2007. Furthermore, the Austrian authorities took the view that Mr Kokollari could not rely on Union law and had not invoked any other particular ground on which he should be issued a residence permit. A removal order had already been made.

9. In the fourth case, Mr Izunna Emmanuel Maduike, a Nigerian national, entered Austria illegally, like Mr Dereci, in 2003. He submitted an asylum application based on false statements, the rejection of which became irrevocable in December 2005. In the meantime, Mr Maduike married an Austrian citizen and, in December 2005, applied for a residence permit. His application was rejected inter alia on the ground that he had resided illegally in Austria whilst awaiting the response to his application and that, having infringed the asylum rules, he constituted a threat to public order, which precluded the issue of such a permit.

10. Mrs Stevic, a Serbian national living in Serbia with her husband and her adult children, is the claimant in the main proceedings in the fifth case. On 5 September 2007, she applied for a permit to reside in Austria in order to be reunited with her father, who had lived in that Member State since 1972 and who was granted Austrian citizenship on 4 September 2007. According to Mrs Stevic and her father, he had paid monthly support of EUR 200 throughout these years and would guarantee his daughter’s subsistence once she was in Austria. The Austrian authorities rejected Mrs Stevic’s application on the ground that the monthly support received by her could not be regarded as subsistence support and that, having regard to the amounts laid down by the NAG, her father’s means would be insufficient to allow Mrs Stevic to cover her subsistence. Furthermore, neither Union law nor Article 8 of the ECHR required the application for family reunification submitted by Mrs Stevic to be granted.

11. Hearing these cases, the referring court is uncertain, in view of the abovementioned judgment in Ruiz Zambrano, about the conditions in which Union citizens would, within the meaning of that judgment, have to leave the territory of the Union in order to accompany the members of their family, who are nationals of non-member countries, and would therefore be deprived of the genuine enjoyment of the rights conferred on them by virtue of their status as citizens of the Union. Furthermore, whilst recognising that Directive 2004/38/EC (4) is not applicable in the five cases in the main proceedings because the Union citizens concerned have not exercised their right of free movement, the referring court asks whether, since that directive favours the maintenance of the family unit, it should be taken into account so that it might be held that the impossibility of leading a family life in a Member State could in itself deprive Union citizens of the enjoyment of the substance of the rights which they derive from their status. In addition, in the Dereci case only, the referring court asks, in the light of the nationality of the claimant in the main proceedings in that case, whether, in the alternative, one of the provisions of the Agreement establishing an Association between the European Community and Turkey, signed at Ankara on 12 September 1963 and concluded on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, (5) precludes the application, from 1 January 2006, of the conditions for obtaining a residence permit in Austria which the NAG imposes on Turkish...