Revocation of innocent family member’s residence permit allowed but subject to proportionality test

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In Case C‑557/17 Staatssecretaris van Veiligheid en Justitie v Y.Z. and Others, the Court of Justice of the European Union has ruled that EU law permits the revocation of falsely obtained family reunion residence permits, even when the individual did not know about the deception, but that such decisions must be proportionate.

The case concerned a family from China. The father was living in the Netherlands and his partner and son applied for a permit to join him relying on the Family Reunification Directive. They were successful, but later the Dutch government revoked the father’s residence permit because the documents he had provided about his employment in the Netherlands were false. The authorities then revoked the mother’s and son’s residence permits as well. The Dutch courts accepted that the mother and son were unaware of the deception and asked the Court of Justice whether it was still possible for the Dutch government to withdraw their residence permits.

The court held that it is open to the Dutch government to withdraw the permits on the grounds of deception, even when the family members concerned had no idea about the deception, but the decision must be proportionate:

Article 16(2)(a) of Directive 2003/86 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.

This decision contrasts with UK law, which would have allowed the Home Office to revoke the mother and child’s leave to remain without any proportionality assessment. Sadly, the UK has opted out of the Family Reunification Directive so this case will not be of benefit to anyone in the UK.