C‑356/11 & C‑357/11-Opinion of AG Bot- 27 September 2012

Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law.

Protection of the rights of the children under the Art 20 TFEU

The grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States and the grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent have been discussed in Zambrano case, C‑34/09 issued on the 8 March 2011 by the CJEU.

According to this judgment the right to obtain a residence permit of an ascendant relative can be obtained as a derivative right, a right based on the Article 20 TFEU, the one establishing the Union citizenship. The facts of Zambrano reveal the familial situation of Ruiz Zambrano, a Columbian citizen who lived in Belgium with his wife and his first born son. They came to Belgium as asylum applicants but their application has been rejected by decision of 11 September 2000. They continued to live in Belgium and to apply to have their residence situation regularised and the applications continued to be rejected until on the 1 September 2003, Mr Ruiz Zambrano’s wife gave birth to a second child, Diego, who acquired Belgian nationality. On 26 August 2005, the third child, Jessica is born and she acquired as well the Belgian nationality. Diego and Jessica are citizen of the Union, but due to their young age can not enjoy the rights conferred by virtue of their status as citizens of the Union, unless their parents are allowed to reside in Belgium. Therefore in order not to empty these rights of their substance, the right of residence shall be granted to the parents.

We have a very similar situation in the Joint cases attached below. The capital difference comes from the circumstances related to the interaction between the laws of the country of origin and the laws of the host member state. In Zambrano, we have the interaction between the Columbian law and the Belgian law, the children being born outside the territory of Columbia did not have the nationality of Columbia and therefore the Belgian law granted them the Belgian nationality. In the cases presented in the recent Opinion, the children have the nationality of a 3rd country even if they are born in Finland. They have not been granted the Finnish nationality and therefore they do not enjoy the status of the Union citizen. They do not enjoy the protection ensured by Art 20 TFEU.

Protection of the rights of the children within the measures relating to asylum, immigration and safeguarding the rights of third country nationals

They do not remain unprotected but their protection relies on a different field of EU law, namely the right to family reunification governed by the Council Directive 2003/86/EC.

Art 5 (5) of the Directive: When examining an application (for entry and residence), the Member States shall have due regard to the best interests of minor children.

Relevant primary law in this area:

* Article 7 of the Charter of fundamental rights of the EU

* Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

* United Nations International Convention on the Rights of the Child, signed in New York in 1989. Article 3 of the Convention reads as follows:

“1. In all actions concerning children, whether undertaken by public or private social welfare, institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

If you read the opinion of the AG and the directives concerned, you might discover that the degree of protection is different, lower for the asylum applicants and immigrants. Nothing unexpected, I would say, but concerning the right of the minor children, the existence of a difference in treatment in relation to the protection of the right to family life can be a bit controversial, isn't it?

The fact that the balance might be done between the right to family life of a minor child, under 12 years old, and some economic considerations such as the recourse to the social assistance system of the Member State concerned, should not be just admitted with no further reflection.

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