Unfortunate is the news that leaves us with the judgment issued on June 27, 2018 by the Court of Justice of the European Union, on the preliminary question raised by the Belgian question referred by the Belgian Council of State on the obligation to the obligation to issue a favorable decision after the expiration of the time limit for resolving the application submitted by the foreign citizen in accordance with Article 10.1 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
In the past, we could state that in the case of applications for a community family member card, in the event that the maximum resolution period of 3 months was not complied with, counting from the day following the day on which the file was received at the Aliens Office, on the 91st day, we used to request the application of the positive administrative silence and immediately required the Aliens Office to issue the corresponding favorable resolution granting the residence authorization.
Now, with the criteria of application of the referred sentence, we can say goodbye to the positive administrative silence for community citizens, taking into account that the residence card - community family member has a declarative character that recognizes a pre-existing right, so that although there is a duty to issue it within 3 months (legally established), as long as the applicant meets the requirements to benefit from the right of residence, it cannot be issued to nationals of a third State who do not meet the requirements established for obtaining it, even if the deadline has passed, it cannot be issued to nationals of a third country who do not meet the requirements for obtaining it, even if the deadline for issuance has been exceeded.
That is to say, the preliminary question addressed by the judgment referred to a case in which the applicant - a foreign citizen - a relative of a European Union citizen had not met the requirements of the regulations to be granted such temporary residence, and the decision had not been notified within the time limit established in that European Union member country.
What can we interpret from the EU Court of Justice? This brings us to state the following:
- The obligation of the EU Member States to issue a residence card to the family members of the EU citizen within the established period, i.e., they must request reports, adopt a resolution and notify the interested party.
- However, when the competent authority, namely the Foreign Office, exceeds the deadline to resolve, it will not be obliged to resolve FAVORABLE, if the applicant does not meet the requirements of the law for obtaining it.
That said, on many occasions the Administration may take time to respond to an application for a Community family member card, it will depend on many factors such as: place of filing, time of year, filing office (for example in Madrid in summer usually take a little longer in the resolution of the files due to lack of staff in the different offices of foreigners), with which, it will be of no use if we request the positive administrative silence, taking into account the preliminary question resolved by the Court of Justice (First Chamber) on June 27, 2018.
From Molinares Abogados we recommend from the first minute to put your case in the hands of experts, and more dealing with immigration matters that is very changeable and with the application of new internal guidelines and at EU level each application presents new features or requirements that often we do not have first hand with the information we find.
If you wish to contact us you can send us your inquiry through our website, or request an appointment. Remember that we can attend you in person in our office, by skype - facetime, or telephone call.
We are here to help you with everything you need.
