The withdrawal of the residence permits of family members on the basis of fraud committed by the sponsor

This project concerns preliminary questions which were referred to the Court of Justice by the Administrative Jurisdiction Division of the Council of State (AJD) on 20 September 2017. The case concerned a family, of which the father had obtained a residence permit in order to work in the Netherlands. The mother and son had obtained a residence permit for family reunification and, afterwards, as long term residents. When the State Secretary found out that the father had committed fraud in order to receive a residence permit, he withdrew the residence permits of the whole family. The AJD asks the Court of Justice whether the Family Reunification Directive and the Long Term Residents Directive allow the State Secretary to withdraw the residence permits of the mother and son, taking into account that they were not aware that the father had committed fraud. The expert opinion addresses amongst others the acquirement of stronger rights after a lapse of time and the meaning of the terms ‘fraud’ and ‘withdrawal’.

You can find the expert opinion here: Expert opinion withdrawal fraud def.final

On 5 July 2018 the CJEU held a hearing in this case (Case C-557/17). On 4 October 2018, AG Mengozzi issued his opinion. The CJEU decided in a judgment of 14 March 2019. The CJEU held that:

“1.      Article 16(2)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, where falsified documents were produced for the issuing of residence permits to family members of a third-country national, the fact that those family members did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing those permits. In accordance with Article 17 of that directive, it is however for the competent national authorities to carry out, beforehand, a case-by-case assessment of the situation of those family members, by making a balanced and reasonable assessment of all the interests in play.

2.      Article 9(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, must be interpreted as meaning that, where long-term resident status has been granted to third-country nationals on the basis of falsified documents, the fact that those nationals did not know of the fraudulent nature of those documents does not preclude the Member State concerned, in application of that provision, from withdrawing that status.”