On April 18, 2024, the Court of Justice of the European Union (CJEU) delivered a key judgment in Case C-607/21, clarifying the conditions under which a third-country national who is the parent of an EU citizen may enjoy a derived right of residence (family reunification) in an EU Member State. The ruling provides essential guidance on the timing of evidence proving dependency and addresses whether unlawful residence under national law affects the right to reside.

Factual Background

A Moroccan national entered Belgium in 2011 and applied for family reunification with her son, a Belgian citizen. After the initial application was rejected, she filed new applications for residence in 2015 and 2017, this time claiming a right of residence as a dependent direct relative in the ascending line of her son’s partner—a Dutch national who had registered a declaration of cohabitation with her son in 2005.

To prove her dependency, the applicant submitted documents from 2010 and 2011 (prior to her arrival in Belgium) showing that she had been materially dependent on the household she wished to join. Belgian authorities rejected the application, arguing that the documents were too old to prove her dependency in the country of origin at the time of her departure.

Referral to the CJEU on family reunification

The Belgian Council of State referred questions to the CJEU, asking which date is legally relevant under EU law to assess whether the parent of an EU citizen is “dependent”—particularly when several years have passed between the person’s arrival in the host Member State and the submission of a residence card application. The Council also asked whether it is permissible to rely on documents issued prior to departure from the country of origin and whether the fact that the person is residing illegally under national law is relevant.

CJEU Ruling on family reunification

The Court held that a third-country national who is the parent of an EU citizen can obtain a derived right of residence for more than three months in the host Member State if two conditions are met:

1. Dependency at the time of departure from the country of origin – The applicant must prove they were materially dependent on the EU citizen at the time they left their country of origin.
2. Dependency at the time of application – The applicant must also prove they were still dependent on the EU citizen at the time they submitted their residence card application, even if several years had passed between the two events.

Importantly, such dependency may be demonstrated through documents issued in the past—these cannot be disregarded solely because they are “old.”

Effect of Unlawful Residence Under National Law

The Court further ruled that a derived right of residence under EU law cannot be denied solely on the basis that the applicant is residing unlawfully under national law at the time of their application. This derived right arises directly from EU law and is not dependent on being granted a residence card or complying with national residence laws.

Significance for National Practice

This judgment has major implications for national authorities and courts in Member States:

• It reinforces the protection of EU citizens’ family life.
• It prevents the arbitrary dismissal of evidence of past dependency.
• It limits the role of national immigration rules when assessing rights conferred by EU law.

Conclusion

The CJEU’s decision in Case C-607/21 confirms that the purpose of the derived right of residence is to ensure the effectiveness of EU citizens’ rights, particularly in relation to family unity. National authorities must respect EU law when assessing such cases and may not apply overly formalistic or restrictive interpretations of evidence requirements.

If you or a family member is in a similar situation, we recommend consulting an EU law and immigration specialist. Proper documentation and accurate legal arguments based on recent CJEU case law can be crucial for a successful outcome.

* Finding yourself in need of legal services in Slovenia and looking for a law firm in Ljubljana, consider contacting us using our contact details as published on our web page. A qualified law firm can provide you with legal advice and representation – helping you navigate the complexities of Slovenian law and ensuring that your rights are protected. You can find more information on legal acts in Slovenia on the official pages of the Slovenian government. More legal topics can be found on our law firm publications page.