Komentarz (w j. angielskim) autorstwa Anastasiy Zharkovej w sprawie wyroku Europejskiego Trybunału Sprawiedliwości Rhimou Chakroun v. Minister van Buitenlandse Zaken dotyczącego kwestii łączenia rodzin i osób z krajów spoza UE. W wyroku ETS odniósł się do tego zagadnienia umieszczając je w paradygmacie poszanowania życia prywatnego i rodzinnego.  

Right to family reunification
in the judgment of the European Court of Justice in the case Rhimou Chakroun v. Minister van Buitenlandse Zaken (C-578/08). The case Rhimou Chakroun v. Minister van Buitenlandse Zaken was decided on by the European Court of Justice on 4 March 2010 and concerns the fundamental right to family reunification of third-country nationals, which stems from the right to respect for private and family life enshrined in Article 7 of the Charter of Fundamental Rights. The case was brought before the ECJ through the reference for a preliminary ruling procedure by Raad van State (Netherlands) in the course of proceedings pending before that court, involving a citizen of Morocco, Rhimou Chakroun, who wished to obtain a residence permit to join her husband, a long-term resident of Netherlands.

Mohammed Chakroun, a Moroccan national born in 1944, emigrated to Netherlands in 1970 and has obtained a residence permit there for an indefinite period. Since 2005 he has been receiving unemployment benefit. Rhimou Chakroun, who was born in 1948 and is also of Moroccan nationality, has been married to Mr Chakroun since 1972. In 2006, wishing to live with her husband, she applied to the Netherlands Embassy in Rabat (Morocco) for a provisional residence permit. However, her application was rejected by the Minister van Buitenlandse Zaken (Netherlands Minister for Foreign Affairs) on the ground that Mohamed Chakroun’s monthly income was below the level required in the cases of family formation under Dutch law. In accordance with the Dutch legislation, in particular the Royal Decree of 29 September 2004 (Staatsblad 2004), which transposed the Council’s Directive 2003/86/EC of 22 September 2003 on the right to family reunification, in case of family formation a third-country national residing in the Netherelands should have a net monthly income corresponding to 120% of the minimum statutory wage of a person of 23 years of age   the level above which a person no longer qualifies for special assistance, provided by the state to cover essential living expenses arising from exceptional circumstances 1). After Mrs Chakroun’s objection to the decision was declared to be unfounded, she lodged an appeal at the Rechtbank’s-Gravenhage (District Court, The Hague), which was also declared unfounded. She then appealed to the Raad van State, which decided to refer two questions to the ECJ for a preliminary ruling.

The first of the national court’s questions concerned the interpretation of the phrase “recourse to the social assistance system” used in Article 7(1)(c) of the Directive:
Article 7
1. When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor2)  has:
(c) stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members.

The court asked the ECJ whether these provisions enabled a Member State to adopt legislation which would prevent family reunification when a sponsor has stable and regular resources to cover general costs, but may still be eligible for special social assistance to meet “exceptional, individually determined, essential living costs, income-related remission of charges by municipal authorities, or income-support measures in the context of municipal minimum income policies” 3).

The Court held that the phrase must be interpreted as precluding member States from adopting such rules. The ECJ stated that the Directive grants individuals the right to family reunification, subject to certain conditions laid down in that document, without leaving Member States a margin of appreciation. The provisions must therefore be interpreted strictly, so that the purpose of the Directive, which is to promote family reunification, would not be defeated. The Directive should also be interpreted in the light of fundamental rights, in particular the right to respect for family life enshrined in the Charter of Fundamental Rights and the ECHR. As regards the sponsor’s resources, the Court pointed out that the lower amount required by the Dutch authorities in cases of family reunification when the family relationship arose before the resident’s entry into the Member State was considered sufficient. Furthermore, the amount required of the sponsor in cases of family formation was only an average sum, and some local authorities in the Netherlands set it at lower levels.
Moreover, the Court found that by rejecting Mrs Chakroun’s application on the sole ground of insufficient resources, the Dutch authorities failed to comply with Article 17 of the Directive, which obligated the Member States to take into account the nature and solidity of the person's family relationships when considering the application.

In the second question Raad van State asked the ECJ whether Article 2(d) of the Family Reunification Directive:
Article 2
For the purposes of this Directive:
(d) "family reunification" means the entry into and residence in a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry;
should be construed as prohibiting national legislation, in applying the resource requirement, to distinguish between cases when a family relationship arose before the resident has entered into the Member State and when it arose after such an entry.

The Court’s answer to this question was in line with the first, and struck down the distinction introduced by the Dutch legislation between family preservation (reunification proper) and family formation. No indication was found that such a distinction was intended by the Council; in fact, the documents submitted during the procedures showed that during the works on the Directive, there was a broad agreement that family reunification should cover both preservation and formation of the family. Moreover, the Court pointed out that the time when the family relation was created cannot possibly have any effect on a sponsor’s capacity to provide for himself/herself and the members of his/her family.

In the Chakroun case the ECJ addressed the rights of third-country nationals for the first time. It must be noted that by upholding the rights of aliens and limiting the discretion of Member States in setting rules for family reunification, the Court approximated the rights of third-country nationals to the rights of EU citizens – an objective set by the European Council at its special meeting in Tampere (15-16 October 1999), where it has been stated that the EU should ensure fair treatment of the third-country nationals residing lawfully on its territory and “should aim at granting them rights and obligations comparable to those of citizens of the European Union” 4).

More favorably to the third-country nationals, the court also strikes down distinctions drawn on the basis of the time and place of the family relationship’s coming into existence. As Wiesbrock notes, such broad approach to family reunification is in contrast with the previous judgments of the ECJ and a restrictive approach established in the case-law of ECtHR, according to which Article 8 of the ECHR does not grant a right to family reunification and which has found violation of Article 8 only in exceptional circumstances. In Abdulaziz and Sen cases the EctHR has drawn the distinction between circumstances when the family bonds have been created prior to sponsor’s entry into the host state and when they were established after that entry.

Another significant aspect of the Court’s decision in the Chakroun case is the restrictive interpretation of derogations from the right to family reunification, namely the statement that the provisions concerning a sponsor’s resources must be construed uniformly in all Member States.

Furthermore, by stressing the provision of Article 17 of the Directive, which provides for “individual examination of applications for family reunification”, the Court limits national authorities possibility to rely solely on “a number of blanket requirements”  in considering such applications, and imposes on them an obligation to take into account first of all the human factors and the fundamental rights of the applicants.