Residence permits automatically granted – non-declaratory in relation to the right of residence

In his Opinion delivered on 7 March 2018 (C‑246/17), Advocate General Bot, provides a detailed analysis in regard to the period which Member States must adopt and notify decisions to issue residence permits to third-country nationals, family members of EU citizens [under Article 10(1) Directive 2004/38/EC].

Summary of the case in the main proceedings

The case concerns a decision by the Belgian State refusing to issue a residence card of a family member of a European citizen, to a Guinean national and relative in the ascending line of a child of Netherlands nationality residing in Belgium. The decision was accompanied by an order to leave the territory.

Summary of the legal context

• Pursuant to Article 10(1) Directive 2004/38/EC the right of residence of family members of a Union citizen who are not nationals of a Member State, shall be evidenced by the issuing of a residence permit, no later than six months of the application date.
• Pursuant to Article 52(4) Royal Decree of 8 October 1980, read in conjunction with Article 42(1) Law of 15 December 1980, If the right of residence is granted (i.e. by the Immigration Office), or if no decision is taken within six months of the application date, the local administration shall issue the foreign national a residence card of a family member of a Union citizen.

Brief of the questions referred to the European Court of Justice

The Belgian Council of State has referred to the ECJ several questions can be summarised as follows:

• Whether the decision as to whether to recognise a right of residence must be taken and notified within a maximum delay of six months, or it can be taken within such delay and notified subsequently.
• What are the consequences arising from the failure to adopt or notify the decision within the delay of six months?
• Whether following the judicial annulment of a decision to reject an application, the six-month period available to the competent national authority is interrupted or suspended.

Summary of the Opinion delivered by Advocate General Bot

• The period of six months as of the application date constitutes the maximum amount of time to be spent to examine an application.
• Where the right of residence is established, the decision must be adopted, and the card issued within the six-month period.
• A decision refusing a residence card must be adopted within the six-month period, however, the notification of such a decision may occur after that period (as soon as possible).
• The system of automatically issuing residence permits is a source of legal uncertainty and as the case at issue, contrary to the objective pursued by Directive 2004/38/EC.
• The judicial annulment of a decision to refuse to issue the residence card, has the effect of interrupting the six-month period available to the administration (i.e. the competent national authority is once again allowed the full period of six months).

Expected impact

The Council of State has referred to the ECJ questions on interpretation of the national legislation implementing Directive 2004/38/EC, in the light of the said directive.

Advocate General Bot takes the view that:

• Directive 2004/38/EC precludes national legislation from automatically granting residence cards where a decision is not taken within the six-month period, if the applicant does not satisfy the necessary conditions.
• “The system of automatically issuing residence cards is a source of legal uncertainty”.
• Residence cards issued automatically as a consequence of slowness or inaction on the part of the authorities, are non-declaratory in relation to the right of residence.

The system of automatically issuing residence cards, represents the rule commonly provided for by the national legislation, pursuant to the obligation imposed by the EU law to determine any consequence of no decision being taken by the end of the period provided for by the said law (see inter alia Article 7.2 Directive 2003/109/EC, Article 5.2 Directive 2001/98/EU, Article 11.1 Directive 2009/50/EC).

The fact that, “the issuing of a residence permit to a third-country national is to be regarded not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of such a national”, determines the substance of rights associated to any such residence permit.

The right to establish the non-contractual liability of the Member State for breach of EU law (i.e. the solution suggested by Advocate General Bot as the appropriate way of determining the consequences of exceeding the mandatory period), is regardless any determination of such consequences by the national legislation. More ever, often, the burden of legal action, overrides the harm caused.

Providing that the ECJ will follow the opinion delivered by the AG:

• The national legislation would have to be amended (Law of 15 December 1980, its implementation Royal Decree of 8 October 1981 and the recent cooperation agreement between the federal state and the regions coordinating policies on granting the “single permit”).
• Certain categories of residence permits issued to third-country nationals by the Belgian authority, would be challengeable (e.g. by another Member State’s authority), unless accompanied by the notification of the decision made by the Immigration Office.