In his opinion delivered on 26 October 2017 [K.A. and Others v Belgium (C-82/16)], Advocate General Sharpston strengthens the value of the EU citizenship status in case of conflicting interpretations of the EU law.
The cases at issue concern EU citizens who have never exercised their rights of freedom of movement (prima facie purely internal situations) and third-country nationals, recognised under national law as family members of the EU citizens, who made residency applications for the purposes of family reunification. The applications were not examined by the Immigration Office because the third-country nationals concerned are subject to an entry ban which is both valid and final and the applications have not been made from outside the territory of the European Union.
In his opinion Advocate General Sharpston takes the view that Directive 2008/115/EC (Return Directive) does not undermine the “substance of the rights test” from Zambrano (C-34/09). Despite of the return decision and entry ban, the applications for family reunification must be first “examined on their merits”. Merely refusing to examine the applications, would deprive the EU citizens of the genuine enjoyment of the substance of their rights, because such decision would require them to leave the EU.
It must be noted that beyond an expected interpretation of the substance of rights from (inter alia) Zambrano (C-34/09) and Dereci (C-256/11), the present case has its own merits.
Firstly, in its reference for a preliminary ruling, the Council for asylum and immigration proceedings brings into question a new concept:” EU citizen would, if necessary, only have to leave the territory of the European Union in its entirety for a limited time” (emphasis added).
Advocate General Sharpston takes the view that it is not necessary to interpret the cases at issue in the light of the Return Directive, and as a consequence the concept is not assessed. The concept must be addressed regardless its presumable irrelevance at the case at issue. In my view, the question is not how long the EU citizen would have to leave the territory of the European Union but whether the latter is forced to leave the European Union either not.
Lastly, Advocate General Sharpston, observes that “The national rules as described in the order for reference do not appear to reflect the wording, purpose and scheme of the Return Directive in that respect.”. Under the national law an entry ban applies from the date of notification, the ECJ has held that “the period of application of an entry ban begins to run from the date on which the person concerned has actually left EU territory.” It can be concluded that, Article 74/11 §3 (“The entry ban shall take effect on the day on which the entry-ban decision is notified”) and probably Article 74/12 §2 (“The third-country national may lodge an application with the Minister or his representative to lift or suspend the entry ban on the basis of compliance with the removal obligation which had been issued earlier, if he provides written evidence that he left Belgian territory in full compliance with the removal decision”). Law of 15 December 1980 are challengeable under the ECJ case law.
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