Case summary

Deciding Body
Sofia City Administrative Court
Административен съд, София град
Bulgaria
National case details
Registration ID: Decision n. 1165/2015
Instance: Appellate on fact and law
Case status: Final
Area of law
Migration and asylum


Identification of the case

Fundamental rights involved
  • Freedom of movement and of residence (art. 45 CFREU)
National law sources
  • Act of the Republic of Bulgaria on the entry, stay and departure of the UE citizens and their family members
EU law sources
  • Article 10 Directive 2004/38/EC

Summary of the case

Facts of the case

The case started with the complaint of Hassan Jafari, an Iranian citizen, against the refusal of the Director of GDBP to issuing a long-term residence card as a family member of a European Union citizen. 

Hassan Jafari has applied for issuing of a long-term residence card as a family member of a European Union citizen according to the Act on the entry, stay and departure of the Republic of Bulgaria of the citizens of the European Union and their family members. With the application were produced: a copy of the passport issued by the competent Iranian authorities to Hassan Djashid Jafari, a citizen of the Republic of Iran, a copy of a long-stay issued to Jafari Roala, a British national, a declaration by Jaffari Roala, that he will provide support and housing for his parents Shaharbau Cherafat and Hasan Jaffari and the birth certificate of Jaffari Roala, which stated that his father was Hassan Jafari.

The Director of GDBP refused to issue the applied card, because Hassan Jafari has applied at the same time also for international protection. 

Type of enforcement
  • Administrative judicial enforcement
Measures, actions, remedies claimed/applied

The Court has annulled the contested refusal and returned the case for a new ruling on the application with an indication of issuing of the applied card.

Reasoning (legal principles applied)

Pursuant Article 10 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, the right of residence of family members of a Union citizen who are not nationals of a Member State is proved by the issuing of a document known as the 'Residence Card of a family member of a citizen of the European Union', no later than six months from the date of filing of the application. A certificate that the person is applying for a residence card must be issued immediately. The Directive does not lay down any additional requirements as the fact that the applicant has exercised his right to free movement or that he is accompanying or joining a citizen of the European Union. The only relevant element is that the applicant is a family member of a EU citizen.

In the considered case is undoubted that Hassan Jafari is a member of the family of a EU citizen.   

One of the fundamental principles of  the EU law is its primacy over the national laws that contradict it. In relation to the above mentioned findings, the Court  founded that in this case the rule of Art. 10 of Directive 2004/38 EC is directly applicable. The administrative authority  had the duty to issue a provisonal certificate and to verify the documents producted according to Article 10 , Point 2 of Directive 2004/38 in order to issue the requested card and not a residence permit. The certificate attesting that the person has applied for a residence card (provisional certificate) should have been issued immediately. The issuing of  both of the documents is not regarded with any  protection procedure opened by the individual.

 

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

The judgment of the Court ricognises the right of the citizens of the Union and their family members to move and reside freely within the territory of the Member States, as provided by Aricle 10 Directive 2004/38/CE and by Article 45 CFREU. Pursuant the foundamental principle of primacy of EU law over national legislations, the Court expressly finds that in this case the rule of Art. 10 is directly applicable.