Immigrants Banned From Belgium Score at Top EU Court

(CN) – Even after Belgium imposed bans against individuals who had applied for residency, the European Court of Justice ruled Tuesday that the immigrants are entitled to reasoned decisions when they applied later for family reunification.

The immigrants behind Tuesday’s case immigrated to Belgium from seven nonmember states: Armenia, Russia, Uganda, Kenya, Nigeria, Albania and Guinea.

After they were ordered to leave Belgium, and subject to an entry ban, they each brought new applications for residence permits based of their statuses of their relatives.

K.A. and M.Z. are dependent relatives in the descending line of a Belgian citizen; M.J., N.N.N., O.I.O. and R.I. are the parents of minor Belgian children; and B.A. is the lawfully cohabiting partner in a stable relationship with a Belgian citizen. (Their names are abbreviated in the court record.)

Still Belgian authorities argued that they need not examine the applications at all in light of the entry bans against each of the immigrants.

On Thursday, the grand chamber of the European Court of Justice found otherwise.

“The fact remains that, when the competent national authority receives, from a third-country national, an application for a right of residence for the purposes of family reunification with a union citizen who is a national of the member state concerned, that authority cannot refuse to examine that application solely on the ground that the third-country national is the subject of a ban on entering that member state,” the ruling states. “It is the duty of that authority, on the contrary, to examine that application and to assess whether there exists, between the third-country national and Union citizen concerned, a relationship of dependency of such a nature that a derived right of residence must, as a general rule, be accorded to that third-country national, under Article 20 TFEU, since otherwise the union citizen would be compelled, in practice, to leave the territory of the European Union as a whole and, therefore, would be deprived of the genuine enjoyment of the substance of the rights conferred on him by that status. In such circumstances, the member state concerned must withdraw or, at the least, suspend the return decision and the entry ban to which that third-country national is subject.”

The ruling also highlights the examination that a member state must undertake to resolve the immigrant’s claim as the parent of an EU citizen.

“The fact that the other parent, where that parent is a union citizen, is actually able — and willing — to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national,” the opinion states. “In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.”

Another factor that the authorities must consider, according to the ruling, is whether the entry ban should be re-evaluated.

“Where such a ban is justified on public policy grounds, such grounds may permit a refusal to grant that third-country national a derived right of residence under Article 20 TFEU only if it is apparent from a specific assessment of all the circumstances of the individual case, in the light of the principle of proportionality, the best interests of any child or children concerned and fundamental rights, that the person concerned represents a genuine, present, and sufficiently serious threat to public policy,” the ruling states.

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