YC v Stadt Wuppertal.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Regan
• ECLI: ECLI:EU:C:2025:340
• Docket Number: C-130/24
• Date: 08 May 2025
• Procedure Type: Reference for a preliminary ruling

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

8 May 2025 (*)

( Reference for a preliminary ruling – Citizenship of the Union – Article 20 TFEU – Right to move and reside freely in the territory of the Member States – Derived right of residence of a third-country national who has a dependent minor child with status of citizen of the Union – Relationship of dependency – Nature of a derived right of residence – Point at which the derived right of residence arises – Obligation to obtain a visa subsequently in a third country )

In Case C‑130/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgericht Düsseldorf (Administrative Court, Düsseldorf, Germany), made by decision of 16 January 2024, received at the Court on 16 February 2024, in the proceedings

YC

v

Stadt Wuppertal,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, E. Regan (Rapporteur) and J. Passer, Judges,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the German Government, by J. Möller and R. Kanitz, acting as Agents,

– the Danish Government, by D. Elkan, M. Jespersen and C. Maertens, acting as Agents,

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

– the Netherlands Government, by M.K. Bulterman and A. Hanje, acting as Agents,

– the European Commission, by E. Montaguti and J. Vondung, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

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 YC, a third-country national, and Stadt Wuppertal (City of Wuppertal, Germany) concerning the issue of a residence permit for the purposes of family reunification.

Legal context

3 Paragraph 5 of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet – Aufenthaltsgesetz (Law on the residence, occupational activity and integration of foreign nationals in the Federal territory) of 30 July 2004 (BGBl. 2004 I, p. 1950), in the version applicable to the facts in the main proceedings (‘the AufenthG’), entitled ‘General conditions of issue’, provides:

‘(1) A residence permit shall in general be issued on condition that:

…

2. there is no interest in expulsion,

…

(2) The issue of a residence permit, an EU Blue Card, an Intra-Corporate Transfer (ICT) Card, a permanent settlement permit or an EU long-term residence permit is also subject to the conditions that the foreign national

1. entered with the required visa and

2. has already provided, in his or her visa application, the relevant information for the issue of a [residence permit].

It is possible to derogate from the conditions set out in the first sentence where the conditions for the issue of a residence permit are satisfied or where, having regard to the particular circumstances of the case, it is unreasonable to carry out the procedure for the grant of a visa subsequently. …’

4 Paragraph 28 of the AufenthG, entitled ‘Family reunification with German nationals’, provides in subparagraph 1 thereof:

‘A residence permit is to be issued

…

3. to the foreign parent of a German national who is an unmarried minor for the exercise of parental responsibility in that regard,

provided that the German national has his or her habitual residence in the Federal territory. It must be issued, by way of derogation from point 1 of Paragraph 5(1), in the cases referred to in points 2 and 3 of the first sentence. It should be issued, as a general rule, by way of derogation from point 1 of Paragraph 5(1), in the cases referred to in point 1 of the first sentence.’

5 Paragraph 95 of the AufenthG, entitled ‘Criminal provisions’, states, in subparagraph 1 thereof:

‘Any person who

…

2. resides in Federal territory without a residence permit as required in accordance with the first sentence of Paragraph 4(1), where

(a) he or she is subject to an enforceable obligation to leave the territory,

(b) he or she has been given no time limit for departure or that time limit has expired, and

(c) his or her expulsion has not been stayed,

shall be liable to a custodial sentence of up to one year or a fine.

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

6 On 25 September 2019, the external representation of the Republic of Poland in a third country issued the applicant in the main proceedings with a long-stay visa for study purposes, valid until 23 September 2020.

7 On 28 September 2019, the applicant in the main proceedings, entered the Schengen area with that visa and started studying in Poland.

8 After entering Germany from Poland, the applicant in the main proceedings, on 1 August 2020, declared her place of residence as the area falling within the competence of the City of Wuppertal.

9 On 6 November 2020, the City of Wuppertal requested the applicant in the main proceedings to leave the national territory without delay. No response was given to that request, since she was no longer contactable at the address stated in her residence declaration.

10 On 24 September 2021, the applicant in the main proceedings gave birth to a child, who has German nationality derived from the father.

11 The applicant in the main proceedings lives with that child in respect of whom she alone has rights of custody. Although he pays a maintenance allowance, the father has little contact with the child, visiting the child only at weekends and not being in a position, for professional reasons, to take care of the child for periods of several weeks.

12 On 12 April 2022, the applicant in the main proceedings applied to the City of Wuppertal for a residence permit for the purposes of the exercise of parental responsibility.

13 Since the City of Wuppertal did not rule on that application, the applicant in the main proceedings, on 13 December 2022, brought an action before the Verwaltungsgericht Düsseldorf (Administrative Court, Düsseldorf, Germany), which is the referring court, to obtain a decision on that application.

14 According to the City of Wuppertal, the issue of a residence permit to the applicant in the main proceedings is precluded, because, having entered Germany clandestinely between December 2020 and June 2021, she satisfies the conditions for the offence laid down in point 2 of Paragraph 95(1) of the AufenthG. It follows that there is an interest in the expulsion of the applicant from the national territory in accordance with point 2 of Paragraph 5(1) of the AufenthG, which precludes the issue of a residence permit, and this may not be derogated from.

15 The City of Wuppertal also argued that the issue of a residence permit presupposes entry into the territory with the required visa, a condition which is not satisfied in the present case. In addition, the applicant in the main proceedings could reasonably be required to leave the German territory in order to initiate subsequently, in her country of origin, the procedure for granting visas, since such a requirement would not jeopardise the best interests of the child given the brief duration – less than one month – of the procedure. Lastly, the conditions for the grant of a derived right of residence under Article 20 TFEU are also not satisfied. If they were to depart together in order to initiate the visa procedure, the child, who is not of compulsory school age, would have to leave the territory of the European Union only for a short period, with the result that the essence of the right recognised in that provision would not be affected. Furthermore, the interruption of contact between the child and her father for a period of less than one month would be acceptable.

16 By a partial judgment of 23 November 2023, the referring court ordered the City of Wuppertal to issue the applicant in the main proceedings, pursuant to point 3 of Paragraph 28(1) of the AufenthG, with a residence permit for the purposes of family reunification, valid from the date of that judgment.

17 As regards the period prior to that date (‘the period at issue’), that court considers that it is established that national law precludes the issue of a residence permit to the applicant in the main proceedings, since, during that period, there was an interest in her expulsion on account of her illegal stay in German territory. The grant of a residence permit on humanitarian grounds is also precluded.

18 Therefore, that court considers that it is essential, in the present case, to determine whether a derived right of residence under Article 20 TFEU arose during the period at issue and, if so, whether that right arose automatically under EU law and from when that right took effect.

19 In the first place, as regards the existence of a right of residence under Article 20 TFEU, the referring court states that, in accordance with part of the national...