E-16/20 Q and others v The Norwegian Government, represented by the Immigration Appeals Board
EFTA-case
Klik hier voor het dossier van het EVA-hof (voor zover beschikbaar). Deadlines: Motivation ministry: 21 December 2020 Written observations: 8 February 2021
Keywords : free movement; third country national; immigration
Subject :
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC;
Facts of the case:
Q is a Peruvian national (plaintiff 1), she is divorced and has two children (A and B, plaintiffs 2 and 3). C is a Greek national and he got engaged to Q in 2013. C had to file for divorce from his previous spouse first; on 24-02-2014 C’s previous marriage was dissolved. In March 2015 the four of them travelled to Norway where the children began attending school. Q’s application for a residence permit in Norway under national rules governing work permits for skilled work got rejected by the Immigration Appeals Board. Q’s appeal against that decision got rejected as well. In December 2015 Q and C were married in Greece. Two weeks later, Q and her children applied for residence cards as family members of C. These applications were granted. On 18-05-2017, C contacted the police in Norway and stated that Q had asked if they could get married after the rejection of the first application for a residence permit, so that she and the children could live in Norway on the basis of family reunification. C had applied for a separation in Greece in February 2017. On 19-06-2017, Q filed an application for separation with the County Governor in Norway. C moved back to Greece. C and Q are still formally married, as the scheduled divorce hearing in Greece was postponed due to the Covid-19 pandemic. Q’s application for a residence card as a family member of an EEA national (her son A) was rejected. Q states not to have been informed that the immigration authorities viewed the marriage as a marriage of convenience until the Immigration Appeals Board’s decision. The plaintiffs have further submitted that A retains his right of residence under Article 12(3) irrespective of his mother’s purpose in entering into the marriage, that is to say, even if there is found to be an abuse of rights under Article 35. The Government understands that the summons relates to Q and both sons, although no application for a residence card has been made for B, who is over the age of 18. The Immigration Appeals Board’s decision accordingly does not apply to him. The case raises complicated questions of EEA law and the parties are in disagreement. The District Court accordingly considers it appropriate to request an Advisory Opinion from the EFTA Court
Request for an advisory opinion:
1. The EU Court of Justice has held that Article 21 TFEU and Directive 2004/38/EC grant a right to reside in a host State to a minor child who is a national of another EU State and who satisfies the conditions laid down in Article 7(1)(b), and that “the same provisions” allow a parent who is that child’s primary carer to reside with the child in the host Member State, see, for example Case C-86/12 paragraph 29. At the same time, the EU Court of Justice has also held that such a parent does not come within the personal scope of the Directive as provided for in Article 3(1), see paragraphs 24-26. In a situation as described above, may the parent’s right of residence be based on the Directive alone or in the light of the EEA Agreement, or does such a right presuppose that the Directive is to be applied together with Article 21 TFEU, or possibly that the Directive is to be given a broad interpretation in the light of Article 21 TFEU?
2. Article 12(3) of Directive 2004/38/EC confers a right to continued residence on a child of an EEA national who is enrolled at an approved educational establishment and the person who has parental responsibility (custody) of the child should the EEA national depart from the country. May a child who is the descendant of the EEA national’s spouse only, who was granted a right of residence using the EEA national as a reference person, also derive such a right under the Directive alone or in the light of the EEA Agreement? Does this also hold true if the EEA national has applied for divorce from the parent of that child before departing from the country?
3. If question 2 is answered in the affirmative, does this also hold true if the marriage of the child’s mother or father was an abuse of rights under Article 35 of Directive 2004/38/EC, but was perceived as being genuine by the EEA national and the child?
Cited (recent) case-law: C-86/12; C-200/02; C-93/18; C-165/14; C-40/11; C-413/99
Policy Area: JenV-dmb; JenV
