Delays in issuing a residence card to a family member of an EEA national exercising their treaty rights in the UK is a frequent problem. Immigration practitioners often face a situation when the Home Office takes more than six months to make a decision.
Despite there is a directive (2004/38) requiring the decision within the six month period, this is not always the case.
Such delays can negatively affect job and education opportunities, as well as family life.
But what is the sanction against the Home Office for the delay? The CJEU takes a reference from a Belgian Court and states that the sanction for the delay is according to the national law.
The Judgement and Facts
Article 10 (1) of Directive 2004/38/ states that a decision to grant a residence card to a family member of EEA national has to be made within the six month period.
The case concerned a third county national – Mr Diallo, a Belgium resident. He applied for a residence card on the basis of being a family member of his EU national child.
The Belgian authorities took negative decision 5 months and 28 days after the application, and Mr Diallo appealed. The authorities adopted the new decision a month and a half later, after Mr Diallo appealed.
The Belgian court then adopted a new decision a month and a half later rejecting Mr Diallo’s application. The court stated that he had failed to provide sufficient evidence. For example, his resources and that the child was dependent on him. Mr Diallo appealed again.
The Court of Justice of the European Union confirmed the following:
The state authorities must reach a decision within 6 months. This is irrespective of whether it is positive or negative.
Under the Belgian law, a failure of state authority to make a decision within the six months entitles the applicant for an automatic issue of the residence card. The court found that, it would be contrary to the requirements of the Directive 2004/38 to issue a residence card to a person who does not fulfill the necessary requirements.
CJEU stated that in order to derive a right of entry and residence from a family member who is a EU national, Mr Diallo should show that he is dependent on his child who is a Dutch resident.
The court also noted that if a decision is annulled (as what happened in Mr Diallo’s case) the state cannot restart the six months time process again from the start.
The Directive remains silent on sanctions for failure to determine the relevant time period. CJEU held that the principle of effectiveness applies.
The court stated that the new six month period would
‘render excessively difficult the exercise of the right of the family member of Union citizen’
and therefore is not acceptable.
Source: ILPA European Update
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