CJEU: Case C-558/14 Khachab v Subdelegación del Gobierno en Álava

Thursday, April 21, 2016

The CJEU has given a preliminary ruling in Case C-558 Khachab v Subdelegación del Gobierno en Álava, relating to the interpretation of Article 7(1) c) of the Family Reunification Directive(FRD). The applicant is a third country national with a long-term residence permit in Spain, whose application for family reunification with his spouse was refused on the basis that he had not provided evidence of sufficient resources to maintain his family once reunited.

The Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco submitted a question to the CJEU for preliminary ruling on the compatibility of Spanish legislation with Article 7(1) c) FRD. This permitted a refusal of family reunification where a prospective assessment by the national authorities indicated that the sponsor would fail to retain stable and regular resources sufficient to maintain the family in the year following the application, taking into account the sponsor’s income pattern in the 6 months preceding the application.
The CJEU reiterated principles set out Joint Cases O & S that as authorisation of family reunification is the general rule, the margin of appreciation for Member States in Article 7(1) c) must be interpreted strictly, and cannot be used in a manner undermining the objective of the FRD and the effectiveness of this. It had to be interpreted and applied in light of fundamental rights set out in inter alia, Article 7 of the Charter and with a view to promoting family life (preamble 2 FRD; Parliament v Council).

It considered that the words ‘stable and regular’ in Article 7(1)c) required a certain degree of permanence and continuity, which meant that Member States were not precluded from analysing the pattern of such resources, or a prospective assessment of whether they would be retained. The use of the present tense ‘has’ did not alter this interpretation, as it required the sponsor to have sufficient resources at the time of application, but which must also remain stable and regular. Reference to ‘prospects’ of obtaining permanent residence (Article 3(1) FRD) and the ability to withdraw or refuse applications where conditions are ‘no longer satisfied’ (Article 16(1)a) FRD) also supported such an interpretation. Furthermore, the objective of Article 7(1) FRD was to assess whether the family were likely to become a burden on the social assistance system during their period of residence. This necessarily implies that the Member State is able to prospectively assess whether a sponsor will retain stable and regular resources beyond the date of submitting the application.

The national legislation allowed Spanish authorities to assess this for a period of one year after application, which the CJEU considered a proportionate, balanced, and reasonable time period in light of other provisions in the FRD and in line with its case law. Similarly the 6 month period prior to application for assessing the pattern of resources was not considered capable of undermining the objective of the FRD. In addition, a family reunification application could only be refused under Spanish law if it is determined ‘beyond doubt’ that the sponsor would be unable to retain sufficient resources, which was deemed proportionate.
The CJEU concluded that the Spanish legislation was compatible with Article 7(1)c) FRD.

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Family reunification
Family unity (right to)