The ECJ confirms: Residence permits automatically granted are non-declaratory in relation to the right of residence

In Ibrahima Diallo v Belgium (C‑246/17), the European Court of Justice, brings clarity 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, and in context, the declaratory value of residence permits automatically granted.

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. It must be noted that the grounds for refusal are not challenged by the ECJ.

Summary of the legal context

Pursuant to Article 10(1) Directive 2004/38/EC the right of residence of family members of Union citizens 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 permit 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 a delay and notified subsequently.
  • Whether the Directive 2004/38/EC requires or allows the automatic grant of the residence permit, as a consequence of exceeding the period of six months, without any finding having been made that the applicant does in fact satisfy the conditions for the enjoyment of the right which he claims.
  • 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 ECJ’s ruling and insights

In regard to the first question, the ECJ does not follow the Opinion provided by the Advocate General Bot, and underlines that Article 10(1) of Directive 2004/38, provides that the right of residence of family members of a Union citizen who are not nationals of a Member State, is to be evidenced by the issuing of a residence permit, no later than six months from the date on which they submit the application. Consequently, Member States are bound to examine the application, adopt a decision and, in the case where the applicant qualifies for the right of residence on the basis of Directive 2004/38, issue that residence permit, within a maximum period of six months following the application.

As regards the second question, following the Opinion provided by AG Bot, the ECJ observes that where in principle, the decision to automatically grant the residence permit fails within the scope of the procedural autonomy of the Member States, such an autonomy must be exercised in compliance with the principles of effectiveness (i.e. rules must not impair the effectiveness of EU law). and equivalence (i.e. rules are not less favourable than those governing similar domestic situations).

The automatic grant of residence permits impairs the effectiveness of the EU law:

As is apparent from the settled case-law of the Court, the issuing of a residence card, such as that referred to in Article 10(1) of Directive 2004/38, to a third-country national, must 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 in light of the provisions of EU law

The wording “such as”, confirms the Opinion provided by AG Bot. The latter has emphasised that as a matter of principle, 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.

Lastly, the ECJ clarifies that silence on the part of the competent administration for a period of six months, may be deemed to constitute a refusal, however, the very terms of Directive 2004/38 preclude that silence from constituting an acceptance.

It must be observed that in Belgium, the system of automatically granting residence permits, 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 and Article 5.2 Directive 2011/98/E recently transposed by the national legislation).

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.

As regard to the third question, the ECJ does not follow the Opinion provided by AG Bot.

The ECJ observes that on the one hand, third-country nationals remain in a situation of legal uncertainty concerning the legitimacy of their residence, and on the other hand, only the possession of a valid residence permit is to exempt third-country nationals who are family members of a Union citizen, from the obligation to obtain a visa to enter the territory of the Member States.

The principle of effectiveness precludes national case-law, under which, following the judicial annulment of a decision refusing to issue a residence permit of a family member of a Union citizen, the competent national authority automatically regains the full period of six months. Member States are required to adopt a new decision within a reasonable period, which cannot, in any case, exceed six months.

Impact

The national legislation must 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, are challengeable (e.g. by another Member State’s authority), unless accompanied by the notification of the (positive) decision made by the Immigration Office.

 

 

 

 

 

 

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