1.

The requests for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice, Castilla-La Mancha, Spain) in these joined cases concern the interpretation of Article 20 TFEU in so far as regards recognition of the right of residence of third-country nationals who are family members (the wife’s son and the husband respectively) of a Spanish citizen who has not exercised the right of free movement, and the potential obligation to examine specifically and individually whether there is a relationship of dependency between the members of the family unit.

2.

These requests have been made in proceedings between the Subdelegación del Gobierno en Toledo (Provincial Office of the Government in Toledo, Spain) (‘the Provincial Office’) and third-country nationals concerning the Provincial Office’s refusal of their applications for residence permits as family members of Union citizens. In support of their claims, those third-country nationals rely on a derived right of residence under Article 20 TFEU, and the case-law of the Court of Justice on Union citizenship. These cases provide the Court with an opportunity to clarify its case-law on the derived right of residence which, in exceptional circumstances, must be granted to a third-country national under that article.

3.

Article 1 of Directive 2004/38 ( 2 ) provides:

‘This Directive lays down:

…’

4.

Article 3 of Directive 2004/38, entitled ‘Beneficiaries’, provides in paragraph 1:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

5.

Article 7(1) and(2) of that directive is worded as follows:

‘1.   All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

…

…

2.   The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’

6.

Article 2 of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, ( 3 ) states:

‘For the purposes of this Directive:

…

…’

7.

Article 3 of that directive provides:

‘1.   This Directive shall apply where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third country nationals of whatever status.

…

3.   This Directive shall not apply to members of the family of a Union citizen.’

8.

Under Article 4 of that Directive:

‘1.   The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:

…

…

6.   By way of derogation, Member States may request that the applications concerning family reunification of minor children have to be submitted before the age of 15, as provided for by its existing legislation on the date of the implementation of this Directive. If the application is submitted after the age of 15, the Member States which decide to apply this derogation shall authorise the entry and residence of such children on grounds other than family reunification.’

9.

According to Article 5(3) of Directive 2003/86:

‘The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides.

By way of derogation, a Member State may, in appropriate circumstances, accept an application submitted when the family members are already in its territory.’

10.

Article 32 of the Constitution provides as follows:

‘1.   Men and women have the right to marry with full legal equality.

2.   The law shall regulate the forms of marriage, the age at which it may be entered into and the required capacity therefor, the rights and duties of the spouses, the grounds for separation and dissolution, and the consequences thereof.’

11.

According to Article 68 of the Código Civil (Civil Code):

‘Spouses are obliged to live together, to be faithful to each other and to come to each other’s assistance. They must, furthermore, share domestic responsibilities and the care and attendance of ascendants and descendants and other dependants under their charge.’

12.

Article 70 of that code provides as follows:

‘Spouses shall establish the marital domicile by common consent and any disagreement shall be resolved by a court which must take into account the interests of the family.’

13.

Under Article 110 of that code:

‘The father and mother, even if they do not hold parental authority, are obliged to care for their minor children and must maintain them.’

14.

According to Article 154 of the Civil Code:

‘Non-emancipated minors shall be under the parents’ parental authority.

…’

15.

Article 1 of Real Decreto 240/2007, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo (Royal Decree 240/2007 on the right of citizens of Member States of the European Union and other States which are parties to the Agreement on the European Economic Area to enter, move freely and reside in Spain) ( 4 ) of 16 February 2007, in the version applicable to the main proceedings, provides:

‘1.   This Royal Decree shall govern the conditions for the exercise of the right of nationals of other Member States of the European Union and other States which are parties to the Agreement on the European Economic Area to enter, leave, move freely, stay, have permanent residence, and work in Spain, as well as the limits imposed on those rights for reasons of public policy, public safety or public health.

2.   The provisions of this Royal Decree shall be without prejudice to those (of)special laws and international treaties to which Spain is party.’

16.

Article 2 of the royal decree provides:

‘This Royal Decree shall also apply, in accordance with its provisions, to the following family members of a national of another Member State of the European Union or another State party to the Agreement on the European Economic Area, regardless of their nationality, where they are accompanying or joining that national:

…

…’

17.

Under Article 7 of that royal decree:

‘1.   All Union citizens and nationals of another State party to the Agreement on the European Economic Area have the right to reside within Spanish national territory for a period of more than three months:

…

(b) if they have sufficient resources for themselves and for their family members so as not to become a burden on the Spanish social assistance system during their period of residence and have comprehensive sickness insurance cover in Spain; or

…

(d) if they are a family member accompanying or joining a Union citizen or a citizen of another State party to the Agreement on the European Economic Area who himself or herself satisfies the conditions set out in points (a), (b) or (c).

2.   The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State when they accompany or join in Spain the Union citizen or citizen of another State party to the Agreement on the European Economic Area, provided that that citizen satisfies the conditions set out in paragraph 1(a), (b) or (c).

…

7.   As to sufficient means of subsistence, no fixed amount can be established; regard shall be had to the personal situation of the nationals of a Member State of the European Union or of another State party to the Agreement on the European Economic Area. In any event, that amount shall not exceed the level of financial resources below which Spanish nationals receive social assistance or the amount of the minimum social security pension.’

18.

Article 8(1) of the royal decree provides:

‘The family members of a national of a Member State of the European Union or of another State party to the Agreement on the European Economic Area specified in Article 2 of this Royal Decree, who are not nationals of one of those States may, when they accompany or join that person, reside in Spain for a period of more than three months and shall be required to apply for and obtain a “residence card of a family member of a Union citizen”.’

19.

XU, a Venezuelan national, was born on 19 September 2001 in Venezuela. XU’s mother, a Venezuelan national, holds a Tarjeta de Residencia Comunitaria (Community residence card) and has lived with her child in Spain since 2004.

20.

On 20 January 2011, a Venezuelan family court held that custody of XU would be granted to his mother, who could reside in Spain with her child without any limitation.

21.

XU’s mother and his stepfather, a Spanish national who has never exercised his right of free movement within the European Union, married in El Viso de San Juan (Spain) on 6 September 2014. The validity of that marriage has not been called into question.

22.

The spouses have lived together in El Viso de San Juan (Spain) since 12 December 2008. On 24 July 2009, their child, a Spanish national, was born.

23.

On 28 September 2015, XU’s stepfather made an application for XU to receive a temporary residence card as a family member of a Union citizen, in accordance with Article 2(c) of Royal Decree 240/2007.

24.

That application was refused on the grounds that XU’s stepfather had not established that he had sufficient resources for himself and for the members of his family, as required by Article 7 of Royal Decree 240/2007.

25.

On 28 January 2016, the Provincial Office confirmed the refusal of the application made by XU’s stepfather. That stepfather brought an action against that refusal decision before the Juzgado de lo Contencioso-Administrativo No 1 de Toledo (Administrative Court No 1, Toledo, Spain).

26.

That court upheld that action, finding that Article 7 of Royal Decree 240/2007 was not applicable in the present case, since XU’s stepfather had never exercised his right of free movement within the European Union.

27.

The Spanish Government brought an appeal against that judgment before the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice, Castilla-La Mancha), which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

28.

On 25 September 2015, QP, a Peruvian national, married a Spanish national who has never exercised her freedom of movement within the European Union. The legality of that marriage has never been called into question. QP and his wife are the parents of a girl, a Spanish national, born on 11 August 2012.

29.

On 2 October 2015, QP submitted an application for a residence permit as a family member of a European Union citizen, attaching, inter alia, his wife’s employment contract of indefinite duration and various payslips.

30.

During the consideration of the file, the Provincial Office informed QP that he had three criminal convictions – dated 7 September 2010, 25 October 2010 and 16 November 2016, the first and third for driving a vehicle without a driving licence and the second for drink-driving – so that he could submit his observations, which he did.

31.

On 14 December 2015, the Provincial Office refused QP’s application on the ground that he had not satisfied the conditions laid down by Royal Decree 240/2007, since he had a criminal record in Spain and did not have sufficient financial resources for himself and his family members.

32.

On 1 February 2016, the Provincial Office confirmed the refusal of QP’s application. QP brought administrative proceedings against that decision before the Juzgado de lo Contencioso Administrativo No 2 de Toledo (Administrative Court No 2, Toledo, Spain), which upheld his action.

33.

The Spanish Government brought an appeal against that judgment before the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice, Castilla-La Mancha), which decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

34.

The decision to refer in Case C‑451/19, of 29 April 2019, was received by the Registry of the Court on 12 June 2019.

35.

The decision to refer in Case C‑532/19, of 17 June 2019, was received by the Registry of the Court on 11 July 2019.

36.

By decision of the Court of 16 April 2020, the cases were joined for the purposes of the written and oral procedure and the judgment.

37.

The Spanish Government and the European Commission submitted written observations within the time limit laid down in Article 23 of the Statute of the Court of Justice of the European Union.

38.

In accordance with Article 76(2) of the Rules of Procedure, the Court decided not to hold a hearing.

39.

As stated in the introduction, these cases concern, in essence, the interpretation of Article 20 TFEU as regards recognition of the right of residence of third-country nationals who are family members (the wife’s son and the husband, respectively) of a Union citizen who has not exercised the right of free movement, and the potential obligation on the competent authorities to examine specifically and individually whether there is a relationship of dependency between the members of the family unit.

40.

In the interests of clarity and rationality, those two topics, which correspond, respectively, to the first and second questions referred, will be examined in that order. I will therefore establish, first of all, whether a third-country national has a derived right under Article 20 TFEU in circumstances such as those of the present cases. ( 5 ) I will then focus on the requirements that the case-law of the Court of Justice lays down for the examination of a relation of dependency. ( 6 ) As part of my analysis, I will adopt a position on several of the legal issues raised by the referring court in its requests for a preliminary ruling. The conclusions to be drawn from that analysis, summarised in an overview of my examination of each topic, ( 7 ) will ultimately provide the answers to the questions referred.

41.

The first topic, concerning whether a right of residence exists in the circumstances of these cases, calls for a thorough analysis because it is not inconceivable that Article 20 TFEU precludes the practice of the Spanish authorities consisting in refusing to grant a residence permit to a third-country national who is a family member of a Union citizen solely on the ground that the Union citizen does not have sufficient resources for himself or herself and that foreign national (or any sickness insurance).

42.

It should be borne in mind that the Court reached precisely that conclusion in its judgment of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen) (C‑836/18, EU:C:2020:119; ‘the judgment in Subdelegación del Gobierno en Ciudad Real’). Specifically, in that judgment, the Court criticised the decision of the Spanish authorities to reject an application for family reunification submitted by the third-country national spouse of a Union citizen solely on the ground that that Union citizen did not have, for herself and her spouse, sufficient resources so as not to become a burden on the national social assistance system, without examining whether there was a relationship of dependency between that Union citizen and her spouse of such a kind that, if the latter were refused a derived right of residence, that Union citizen would be obliged to leave the territory of the European Union in order to remain with her spouse and thereby effectively support the person dependent on her. The Court then held that Article 20 TFEU precluded the administrative practice of the Spanish authorities, which merely gave effect to the national legislation in force. ( 8 )

43.

The circumstances of the cases in the main proceedings are similar in several respects to those of the case that gave rise to that judgment, since, first, the Union citizens in question have not exercised their freedom of movement and, second, the present cases concern exactly the same national legislation transposing Article 7 of Directive 2004/38, which also provides that that article applies in a similar manner to the specific situation in the main proceedings, ( 9 ) thereby going beyond what is required by EU law. Nevertheless, it should be noted that there are also appreciable factual differences which warrant specific appraisal in the light of the principles developed in the case-law on Union citizenship. Whereas the cited case concerned an examination of the possible dependency between married spouses with no dependent children, in the cases in the main proceedings the family unit includes dependent children who are Union citizens. I would emphasise in that respect that, because they are vulnerable, minors require enhanced protection by the national authorities and that, in my view, this should be reflected in how Article 20 TFEU is applied to the situation at hand. With that in mind and in the light of the differences mentioned, it is plain that the Court needs to clarify a number of significant aspects as regards the scope of Article 20 TFEU.

44.

Nevertheless, before examining whether third-country nationals, in circumstances such as those in the present cases, can effectively rely on a derived right under Article 20 TFEU by virtue of their status as family members of a Union citizen, I believe it is necessary briefly to summarise the principles applicable to Union citizenship as developed in the Court’s case-law. ( 10 ) Only after that overview of the case-law as it currently stands in that field of EU law will it be possible to determine whether those principles apply in the present cases. ( 11 )

45.

According to settled case-law, reiterated in the judgment in Subdelegación del Gobierno en Ciudad Real, Article 20 TFEU confers on every individual who is a national of a Member State citizenship of the Union, which is intended to be the fundamental status of nationals of the Member States. Citizenship of the Union confers on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaty and the measures adopted for their implementation. ( 12 )

46.

In that context, the Court has held that Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. However, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with freedom of movement of a Union citizen. ( 13 )

47.

In that regard, the Court has previously held that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined if, as a consequence of refusal of such a right, that citizen would be obliged to leave the territory of the European Union as a whole, thus depriving him or her of the genuine enjoyment of the substance of the rights conferred by that status. ( 14 )

48.

However, a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third-country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole. It follows that a third-country national may claim a derived right of residence under Article 20 TFEU only if, in the absence of the grant of such a right of residence, both the third-country national and the Union citizen, as a family member, would be obliged to leave the territory of the European Union. Accordingly, the grant of such a derived right of residence may be possible only where a third-country national who is a family member of a Union citizen does not satisfy the requirements for obtaining, on the basis of other provisions and, in particular, under the national legislation applicable to family reunification, a right of residence in the Member State of which that citizen is a national. ( 15 )

49.

However, once it has been established that no right of residence, under national law or secondary EU law, may be granted to a third-country national who is a family member of a Union citizen, the consequence of the fact that there is, between that third-country national and that Union citizen, a relationship of dependency such as would result in that Union citizen being obliged to leave the territory of the European Union as a whole, in the event of removal of his or her family member, who is a third-country national, from that territory, is that, in principle, Article 20 TFEU requires the Member State concerned to recognise that that third-country national has a derived right of residence. ( 16 )

50.

It should be kept in mind at this stage of the analysis that in order to rely on Article 20 TFEU there must be a relationship of dependency between the third-country national and the Union citizen which is as strong as that described in the preceding paragraph of this Opinion. However, it should be noted that the Court tends to draw a sharp distinction between two categories of family relationships: relationships between adult spouses, on the one hand, and relationships between parents and their minor children, on the other.

51.

In its judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium) (C‑82/16, EU:C:2018:308; ‘the judgment in K.A. and Others’), the Court of Justice clarified that an adult is, as a general rule, capable of living an independent existence apart from the members of his or her family. According to the Court, it follows that the identification of a relationship between two adult members of the same family as a relationship of dependency, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, having regard to all the relevant circumstances, there could be no form of separation of the individual concerned from the member of his or her family on whom he or she is dependent. ( 17 )

52.

The situation concerning minors, especially those who are young children, ( 18 ) is different, since minors depend to a large extent on the support and protection of the parents. The Court seems to be fully aware of the specific protection needed by minors in the particularly sensitive context of an administrative decision within the competence of the national immigration authorities which may have the effect of bringing the family unit to an end. ( 19 ) It should be noted that, according to the Court, a refusal to grant a right of residence to a third-country national parent of a Union citizen is capable, in principle, of leaving that Union citizen with no option but to leave the territory of the European Union in order to accompany the parent upon whom he or she is dependent. ( 20 )

53.

However, it is worth clarifying that the Court does not give the same weight to the role of each parent when determining the decisive factor of the degree to which children are dependent. The family situation must be assessed on a case-by-case basis, having regard in particular to the responsibility that each parent assumes in supporting the family. In its case-law, the Court has held that factors of relevance, for the purposes of determining whether a refusal to grant a derived right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him or her by that status, by compelling that child, in practice, to accompany the parent and therefore leave the territory of the European Union as a whole, include the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national. ( 21 )

54.

More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union if the child’s third-country national parent were to be refused a right of residence in the Member State concerned, it is for the national authorities to determine which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. The Court has held that, as part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter. ( 22 )

55.

According to the Court, the fact that the other parent, where that parent is a Union citizen, is actually able – and willing – to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. ( 23 )

56.

Furthermore, according to the Court, the fact that the third-country national parent lives with the minor child who is a Union citizen is one of the relevant factors to be taken into consideration in order to determine whether there is a relationship of dependency between them, but is not a prerequisite. On the other hand, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the European Union, is not sufficient in itself to support the view that the Union citizen will be compelled to leave the territory of the European Union if such a right was not granted. Accordingly, the existence of a family link, whether natural or legal, between the minor Union citizen and his third-country national parent cannot be a sufficient ground to justify the grant, under Article 20 TFEU, of a derived right of residence to that parent in the territory of the Member State of which the minor child is a national. ( 24 )

57.

Following that brief presentation of the Court’s case-law on the derived right of residence of third-country nationals based on their status as family members of a Union citizen and on the specific relationship of dependency between a third-country national and a Union citizen where one of the persons concerned is a minor, it is necessary to determine whether the principles laid down by that case-law and set out in the preceding points of the present Opinion apply to the joined cases under analysis. As I will explain in detail below, for several reasons, I am led to answer that question in the affirmative.

58.

First of all, parallels can be drawn with the Subdelegación del Gobierno en Ciudad Real case, which have already been referred to in this Opinion. ( 25 ) As in that case, the Court is once again invited to rule, albeit indirectly, on the compatibility with EU law of the Spanish legislation in force, where, under that legislation, the family reunification of a third-country national with a member of his or her family who is a national of a Member State and has never exercised his or her freedom of movement is subject to a requirement that the Member State national has sufficient resources so as not to become a burden on the national social assistance system.

59.

In that regard, the Court has held that EU law does not, in principle, apply to an application for family reunification in those circumstances and that, accordingly, it does not, in principle, preclude national legislation such as that described in the preceding point. ( 26 ) The Court nevertheless stated that the systematic imposition, without any exception, of such a condition is liable to fail to have regard to the derived right of residence which must be recognised, in very specific situations, under Article 20 TFEU, as being held by a third-country national who is a family member of a Union citizen. ( 27 ) That clarification by the Court seems to me to be particularly significant, since it delimits the scope of Article 20 and, thereby, the powers of the Member States in relation to immigration.

60.

The Court explained which national measures it considered to be incompatible with the status of Union citizen established by Article 20 TFEU, that is to say, measures which deprive Union citizens of the effective enjoyment of the substance of the rights conferred by virtue of that status. As I indicated in my presentation of the relevant case-law, that circumstance arises in particular where a Union citizen would be compelled to leave the territory of the European Union because a member of his or her family, a third-country national, was not recognised as having a right of residence. That situation, which must be assessed rigorously, can only occur if there is a relationship involving a high degree of dependency between the third-country national who is a family member of a Union citizen, and that Union citizen. Accordingly, in order to determine whether, in the present cases, the persons concerned can rely on Article 20 TFEU as grounds for a right of residence, it is necessary to examine the family circumstances of each of those individuals.

61.

It should therefore be found that, notwithstanding the factual differences between the Subdelegación del Gobierno en Ciudad Real case and the cases in the main proceedings, one of the key aspects of the analysis is the need to establish whether, in the present cases, there is a relationship of sufficiently pronounced dependency capable of satisfying the requirements that the case-law lays down for the application of Article 20. For the purposes of the analysis, particular attention should be paid to the fact that the family relationships concerned involve minor children. That is why the case-law principles set out in the judgment in K.A. and Others and referred to in this Opinion ( 28 ) may be relevant and applicable. Aiming at a methodical approach that takes due account of the specific circumstances of each case, I propose to examine each case individually in the light of the guidance offered by the case-law.

62.

It should be borne in mind in that context that the Court of Justice is not called upon either to make its own assessment of the situation of the families in question in the cases in the main proceedings nor to decide itself whether the persons concerned should be granted a right of residence. That is especially so as regards assessment of their financial situation, even though the interpretation of Article 20 TFEU is liable to affect application of the national provision transposing Article 7 of Directive 2004/38, which encompasses the situation of Spanish nationals who have not exercised their freedom of movement. Those tasks are exclusively the competence of the national authorities. ( 29 ) The Court of Justice does, conversely, have jurisdiction to provide the referring court with all such factors relating to the interpretation of EU law as may enable it to carry out its own thorough examination of the facts.

63.

In this case, QP, a third-country national who married a Spanish national who had never exercised her freedom of movement within the European Union, has applied for a residence permit in Spain. A daughter has been born of their marriage, who has Spanish nationality. That daughter, who is currently still a minor, likewise has not exercised her freedom of movement.

64.

I would note at the outset that, according to the referring court, if QP were refused a residence permit in Spain, he and his wife would allegedly be unable to comply with their duty under Spanish law to live together. However, the referring court does not mention any circumstance demonstrating the existence of a relationship of dependency between those two adults other than the mere legal obligation to live together.

65.

It is nevertheless clear from the Court’s case-law, referred to in this Opinion, that the identification of a relationship between two adult members of the same family as a relationship of dependency, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases. ( 30 ) In the judgment in Subdelegación del Gobierno en Ciudad Real the Court held that a relationship of dependency of that nature does not exist on the sole ground that the national of a Member State, who is of full age and has never exercised his or her freedom of movement, and his or her spouse, who is of full age and a third-country national, are required to live together, by virtue of the obligations arising out of the marriage under the law of the Member State of which the Union citizen is a national. The answer to the first question referred therefore seems, on a first analysis, to be clear from that judgment.

66.

Nevertheless, in order to give a response of use to the referring court, I believe that the Court should also examine what might be the consequences, in the light of Article 20 TFEU, of the fact that QP is the father of a minor child, who is a Union citizen, and cares for her jointly with his wife, who is a Spanish national and the mother of that child. More particularly, it is necessary to determine whether, if QP were compelled to leave the territory of the European Union, his daughter would in practice be obliged to accompany him, even though both that child and her mother can lawfully remain in Spain.

67.

As emerges from my presentation of the relevant case-law, ( 31 ) the matters of the custody of the child and of whether that child is legally, financially or emotionally dependent on the parent who is a third-country national are relevant factors in determining whether there is a relationship of dependency between that parent and his or her minor child, who is a Union citizen. A finding that there is a relationship of dependency for the purposes of Article 20 TFEU, of such a kind that the minor child would be compelled to leave the territory of the European Union if the parent were refused a right of residence, must take into account, in the best interests of the child concerned, all the specific circumstances of the case, including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. ( 32 )

68.

It seems to me that, according to that case-law, in order to assess whether there is a relationship of dependency, for the purposes of Article 20 TFEU, in the present case, it is necessary to take into account not only whether the child concerned is materially dependent on her parent who is a third-country national, but also the extent of the emotional relationship with that parent and the consequences that the parent’s departure could have for the child’s psychological equilibrium.

69.

Admittedly, it also follows from the Court’s case-law ( 33 ) that the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his or her family together in the territory of the Union, for the members of that family who do not have the nationality of a Member State to be able to reside with the Member State national in the territory of the European Union, is not sufficient in itself to support the view that the Union citizen would be compelled to leave the territory of the European Union if such a right were not granted.

70.

However, it should not be overlooked in this analysis that the Court has several times noted the paramount importance in EU law of respect for family life, as set out in Article 7 of the Charter. The same applies to the protection of the child, whose best interests must be taken into account by the competent authorities, in accordance with Article 24(2) of the Charter. The foregoing requires in particular taking into account the need for a child to ‘maintain on a regular basis a personal relationship and direct contact with both his or her parents’, set out in Article 24(3). I believe that last consideration to be crucial for the purposes of this analysis.

71.

In my view, there was a reason why the Court drew attention to the constitutional ranking of the aforementioned rights in the EU legal order when it included in its reasoning not only Article 20 TFEU, but the provisions of the Charter. ( 34 ) I believe it is clear that the Court intended to ensure that the family link is maintained between the minor child, a Union citizen, and his or her parent, a third-country national, in the territory of the European Union where doing so is in the best interests of that child. ( 35 ) It follows that general considerations relied upon by national authorities, such as those relating to a purported need to protect national social assistance systems, must give way when it is established, on the basis of an assessment of the family situation, that there is a genuine relationship of material or emotional dependency between the persons concerned, such that it is necessary to maintain the family unit in the territory of the European Union. In other words, respect for all the fundamental rights guaranteed by the Treaties for all Union citizens by reason of their status must take precedence over the purely economic interests of the Member States. ( 36 )

72.

In the light of the foregoing case-law, it seems to me that QP should not be refused a residence permit under Article 20 TFEU solely on the ground that his daughter could be fully cared for by her mother, who is a Union citizen, in Spanish territory. An approach focusing exclusively on the mother’s financial capacity in accordance with national family law and disregarding any role played by the father in bringing up, caring for and supporting the child would not take sufficient account of the best interests of that child in maintaining a lasting beneficial relationship with her father. That approach would therefore fail to satisfy the requirements laid down in the case-law in respect of the individual examination that must be carried out.

73.

In the same vein, it should be found that the requirements of the case-law are not met where the father has not been able to submit evidence so that it can be determined whether the requirements for the application of Article 20 TFEU – such as the fact that he genuinely takes day-to-day care of the minor child – have been satisfied. The Court’s express reference to that requirement in the judgment in Chavez-Vilchez and Others shows that the fact that the parent diligently performs his or her legal obligations towards the child is evidence, among other relevant indications, that there is a relationship of dependency for the purposes of Article 20.

74.

As regards the present case, it should be noted that the order for reference does not mention any evidence from which precise conclusions can be drawn as regards the father’s role in relation to his daughter. Nevertheless, that lack of information seems to stem from two factors that need to be clarified in order to gain a better understanding of the factual context in which the questions have been referred for a preliminary ruling. First, the referring court’s findings are based on information obtained from the Spanish authorities which, as that court states, do not examine the circumstances that might be relevant to establishing that there is a relationship of dependency such as to compel the Union citizen to leave the territory of the European Union. Second, the referring court focused its attention solely on the relationship between the spouses, and did not explore the details of the relationship between the child and her parents.

75.

For those reasons, I do not believe that the absence of information in question can be found to indicate a lack of involvement by one or the other parent. It is therefore essential for the referring court to turn its attention to the role performed by each parent within the family unit according to his or her capabilities and to apply the interpretative guidance that the Court of Justice will provide in the judgment to be handed down in these cases.

76.

The referring court must also establish whether the family members live together and, where applicable, under what circumstances. The Court of Justice has found in its case-law that the fact that the third-country national parent lives with the minor child who is a Union citizen is one of the relevant factors to be taken into consideration in determining whether there is a relationship of dependency. Although the referring court has confined itself to referring, rather generally, to the obligation on spouses under Spanish law to live together and mutually to agree the place of the matrimonial home, it is nevertheless possible to assume that there is a family home. On that assumption, one of the questions to be clarified by the referring court is whether the parents live together on a continuous and stable basis that reveals emotional ties and attachment and demonstrates that there is mutual assistance between the persons concerned.

77.

In the light of the foregoing, and subject to assessment of the facts, which is a matter for the referring court, it seems to me that a ‘relationship of dependency’ for the purposes of Article 20 TFEU should be found to exist between a minor Union citizen and his or her parent, who is a third-country national, where that third-country national lives with the child’s mother, and the primary care and the legal, emotional and financial care of their child are therefore shared on a day-to-day basis by both parents, even though the other parent is a Union citizen and therefore has an unconditional right to remain on the territory of the Member State of which he or she is a national. I believe that finding is all the more imperative since that relationship of dependency must be interpreted in the light of, inter alia, the obligation to take account of the best interests of the child.

78.

The existence of a relationship of dependency for the purposes of Article 20 TFEU certainly does not mean that a right of residence must be granted in every case. That assertion is especially true where grounds relating to maintaining public policy and safeguarding public security preclude a decision granting that right. A refusal by the competent authorities to recognise that right on the ground that the third-country national has committed serious criminal offences could constitute an obstacle.

79.

That appears to be the situation in the present case, in which it is common ground that the authorities refused to recognise the third-country national parent as having a right of residence on the ground that he had been convicted of road traffic offences in his Member State of residence. According to the information provided by the referring court, QP’s criminal record shows two convictions for driving without a licence and one for driving under the influence of alcohol.

80.

It should be noted in that respect that the Court has previously held that Article 20 TFEU does not affect the ability of Member States to rely on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. The Court has nevertheless specified that, in so far as the situation of a third-country national claiming a right of residence under that article falls within the scope of EU law, assessment of his or her situation must take account of the right to respect for private and family life, as stated in Article 7 of the Charter, that article requiring to be read in the light of the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter. ( 37 )

81.

In other words, the competent authorities have a duty to carry out a specific assessment of all the relevant circumstances of the case before determining whether it is necessary to refuse to grant a right of residence to a third-country national on the grounds mentioned. When carrying out that individual assessment, the competent authorities must have regard to certain criteria that I will mention below.

82.

First of all, it should be noted that, as a justification for derogating from the right of residence of Union citizens or members of their families, the concepts of ‘public policy’ and ‘public security’ must be interpreted strictly. Accordingly, the concept of ‘public policy’ presupposes, in any event, the existence, in addition to the disturbance of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. As regards the concept of ‘public security’, it is clear from the case-law that the concept covers both the internal security of a Member State and its external security, and, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a threat to military interests, may affect public security. ( 38 )

83.

The Court has categorically stated that, where the refusal of a right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of, inter alia, criminal offences committed by a third-country national, such a refusal is compatible with EU law even if its effect is that the Union citizen who is a family member of that third-country national is compelled to leave the territory of the European Union. ( 39 ) However, that conclusion cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can be reached, where appropriate, only after a specific assessment of all the current and relevant circumstances of the case, in the light of the principle of proportionality, of the child’s best interests and of the fundamental rights whose observance the Court ensures. ( 40 )

84.

The criteria that must be taken into account in that assessment include the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of any children at issue and their state of health, as well as their economic and family situation. ( 41 )

85.

The question that arises at this stage of the analysis is therefore whether, in circumstances such as those in the present case, recognition of a right of residence based on Article 20 TFEU can be refused on the ground that the third-country national parent of a minor child, who is a Union citizen, has been convicted of road traffic offences.

86.

Road safety is a significant concern for the Union and its Member States each in its sphere of competence, especially since it is intrinsically linked to the protection of the health and life of humans. ( 42 ) It is impossible to overemphasise the importance of having an effective coherent policy aimed at putting measures in place throughout the territory of the Union to prevent road users from being killed or seriously injured in road accidents, or to reduce the consequences of road accidents.

87.

However, in view of the particularly strict requirements laid down by the case-law to which I have just referred in the preceding points of this Opinion, I have serious doubts that the measure at issue, that is to say, the refusal to recognise the right of residence, is justified. In any event, such a measure is to my mind manifestly disproportionate to the objective of ensuring road safety, especially if one considers the interests at stake.

88.

First, it is clear that the offences committed by QP are not capable of endangering the functioning of institutions or essential public services or the survival of the population. Accordingly, QP does not pose so serious a risk to road safety in general that it can reasonably be assumed that the criteria associated with the concept of ‘public security’ as defined by the Court, are satisfied. ( 43 )

89.

As regards whether the offences at issue could be classified as a threat to public policy, it seems to me that they do not go beyond the disturbance of the social order which any infringement of the law involves. Although the three convictions for road traffic offences, given their number and frequency, could admittedly reveal a degree of reluctance on the part of the person concerned to abide by the law, it should nevertheless be noted that the convictions date back to 2010 and that a considerable period of time has since elapsed. Accordingly, in the absence of indications to the contrary and subject to assessment of the facts, which is a matter for the referring court, that circumstance could be interpreted instead as a sign of successful social reintegration.

90.

Indeed, the fact that QP has not committed any offence since that time shows that he does not represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Therefore, in the absence of specific indications and given the need to interpret the exceptions to Article 20 TFEU strictly, I am inclined to think, on the basis of the available information, that QP does not represent an obvious risk to public policy. Accordingly, the right to respect for private and family life, as interpreted in the light of the best interests of the child, must take precedence in the present case.

91.

In the second place, it should be noted that, even assuming that the competent authorities had grounds to find, when assessing the facts, that it was not inconceivable that QP still represents an obvious risk to road safety, there are effective and definitely less drastic means of preventing such risks than refusing a right of residence, potentially followed by expulsion and deportation measures. That option should be envisaged only as a last resort, mindful of the serious consequences it could have for maintenance of the family unit and the best interests of the child. In addition, it must not be overlooked in that context that, should a relationship of dependency between the father and his daughter be confirmed in this case, a forced return would very probably mean that she would have to follow her father out of the territory of the Union, which would deprive her of effective enjoyment of her rights as a Union citizen. The measures at issue therefore have repercussions that extend well beyond QP’s individual situation.

92.

Lastly, the forced separation of the family in the circumstances of the present case could, to a certain extent, be equated with a penalty, whereas it is common ground that QP has already been penalised for the offences committed. I therefore do not see why QP should be subjected to an additional penalty, especially since the facts at issue happened a long time ago. Given that the principle of proportionality applies in the present case, I believe that the competent authorities should have given preference to measures which do not jeopardise the family unit, whilst preventing risks and ensuring the social reintegration of the individual.

93.

Since the competent authorities were incorrect to rely on the exception relating to maintaining public policy or safeguarding public security, I do not believe that they can validly object to recognition of a right of residence under Article 20 TFEU.

94.

In the light of the foregoing, it must be found that in the present case it cannot a priori be ruled out that QP has a derived right of residence under Article 20 TFEU. That finding is subject to assessment, which is a matter for the referring court, of whether there is a relationship of dependency between QP and his minor child, who is a Union citizen, of such a kind that, if QP were refused a right of residence, the dependent Union citizen would be compelled to leave the territory of the European Union and would thereby be deprived of effective enjoyment of the substance of the rights conferred by that status.

95.

As with Case C‑532/19, Case C‑451/19 concerns a family comprising, among other members, a third-country national, her husband, a Spanish national who has never exercised his freedom of circulation within the European Union, and their minor son, who also has Spanish nationality and has never exercised his freedom of movement. However, in Case C‑451/19, unlike Case C‑532/19, the residence permit was not applied for in respect of the third-country national parent of a minor child who is a Union citizen.

96.

According to the information provided by the referring court, the third-country national, who is the wife and mother of Union citizens, already has a right of residence in Spanish territory. ( 44 ) The refusal by the Spanish authorities to grant a right of residence in fact concerns her first son, XU, who, having been born from an earlier relationship of that foreign national, is not a Union citizen and was still a minor when that refusal decision was made. ( 45 ) XU is therefore, on the one hand, the son of a third-country national who has a right of residence in Spain and, on the other hand, the stepson of one Union citizen and the half-brother of another.

97.

In those circumstances, bearing in mind the subsidiary application of the derived right of residence under Article 20 TFEU, ( 46 ) I believe it is appropriate to examine, first of all, whether XU is entitled to a right of residence under Directive 2003/86 before, thereafter, assessing whether he is able to obtain a right of residence on the basis of Article 20 TFEU. Even though the referring court has limited its request for a preliminary ruling to the interpretation of Article 20 TFEU, it should be noted that, according to settled case-law, in order to provide an answer which will be of use to the referring court, the Court of Justice may find it necessary to consider rules of EU law to which the national court had not made reference in the formulation of its question. ( 47 )

98.

According to Article 1, the purpose of Directive 2003/86 is to determine the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States. Recital 4 of that directive states that family reunification is a necessary way of making family life possible. In addition, it helps to create sociocultural stability facilitating the integration of third-country nationals in the Member States, which also serves to promote economic and social cohesion, a fundamental objective of the Union. Recital 9 of that directive is to my mind relevant in the present context, since it makes clear that family reunification should apply in any event to members of the nuclear family, that is to say, the spouse and the minor children. In the light of the foregoing, I believe that there are a number of indications suggesting that the circumstances of this case may indeed fall within the scope of application of Directive 2003/86.

99.

Since XU’s mother resides lawfully in Spanish territory, she could be regarded as a ‘sponsor’ within the meaning of Article 2(c) of Directive 2003/86. It therefore cannot be ruled out that her lawful residence has been such that it may confer entitlement to family reunification under Article 3(1) of that directive.

100.

In its written observations, the Spanish Government objects to such an interpretation, claiming that Article 3(3) of Directive 2003/86 does not apply to members of the family of a Union citizen. To that effect, the Spanish Government relies on the judgment in Case C‑256/11, Dereci and Others, ( 48 ) in which the Court, relying, inter alia, on an interpretation based on the drafting history of that directive, held that the directive does not apply to third-country national family members of a Union citizen who resides in a Member State, who wish to enter and to reside in that Member State for the purposes of living as a family. ( 49 )

101.

I do not find that argument convincing since it relates to a very different situation from that in the present case. Admittedly, it is common ground that, under Article 3(3), Directive 2003/86 does not apply to members of the family of a Union citizen. Nevertheless, I would observe that the Court referred to that provision in a particular context in which the applicants were nationals of third countries who wished to live with members of their family, Union citizens, residing in a Member State of which those Union citizens had nationality. In view of the unambiguous wording of Article 3(3) of Directive 2003/86, it is clear that, in those circumstances, an application for reunification could not be based on that directive. However, the situation in the present case is different, since the family reunification concerns only two third-country nationals, namely XU and his mother.

102.

One might counter that the situation is slightly more complex in the present case, since XU is, after all, the stepson and half-brother of two Union citizens. However, I am not persuaded that that circumstance, of itself, precludes Directive 2003/86 from applying to this case. On the contrary, it seems to me that an overly broad interpretation of Article 3(3) would in fact deprive that directive of its effectiveness in any situation where an application for reunification is made by a third-country national who has any form of family link with a Union citizen. In extremis, such an interpretation could produce unforeseeable outcomes depending on the composition of the family in question. The resulting administrative practice could therefore appear arbitrary. A consistent approach is required in order to avoid such a scenario. It should also be noted that the Spanish Government has not provided any argument in support of its position other than the reference to the judgment of 15 November 2011, Dereci and Others (C‑256/11, EU:C:2011:734), which, as already stated in the preceding point of this Opinion, does not however concern the situation under analysis.

103.

In line with the argument that Directive 2003/86 does apply to the circumstances of the present case, I would cite the judgment in Cases C‑356/11 and C‑357/11, O and Others, ( 50 ) which can in my view provide a number of helpful pointers. Each of the two cases giving rise to that judgment concerned a refusal to grant a residence permit to a third-country national, married to a third-country national and residing lawfully on the territory of the Member State concerned, the marriage having led to the birth of a child, who was also a third-country national and lived with the mother in that Member State. In addition, in a previous marriage with a Union citizen, that third-country national had also given birth to a child, a Union citizen, of whom she had obtained sole custody.

104.

The Court noted that the third-country national whose current husband was applying for family reunification, resided lawfully on the territory of the Member State concerned and that their child was also a third-country national and therefore did not have Union citizenship. Under those circumstances, the Court held that ‘in view of the purpose of Directive 2003/86, which is to promote family reunification …, and the protection it aims to give to third-country nationals, in particular minors, the application of that directive cannot be excluded solely because one of the parents of [the] minor third-country national is also the parent of a Union citizen, born of a previous marriage.’ ( 51 )

105.

On the one hand, the family structure at issue in Case C‑451/19 is admittedly not completely identical to those which gave rise to the judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776). Indeed, the child, who is a Union citizen, of the third-country national is not the child of a marriage with a Union citizen that has been dissolved. Moreover, the refusal in the present case is to grant a residence permit to XU, that is to say, the child of the third-country national residing lawfully on Spanish territory, not to her spouse.

106.

On the other hand, I am not persuaded that those differences are such as to prevent XU from successfully relying on the right to family reunification under Directive 2003/86. First, it needs to be borne in mind that, when the Spanish authorities refused him a right of residence, XU was a minor and could therefore be regarded as the ‘beneficiary’ of a right to family reunification, under Article 4(1)(c) of that directive. Second, it has already been set out in this Opinion that XU’s mother, in her own right, satisfies the criteria to have the status of ‘sponsor’ within the meaning of Article 2(c) of Directive 2003/86. ( 52 ) Third, it is beyond comprehension that a fortuitous circumstance such as the fact of being married to a Union citizen should prevent XU’s mother from relying on that directive in order to be granted family reunification with her son.

107.

As I have already set out in my analysis, ( 53 ) an administrative practice the effect of which is to prevent recourse to that directive where a sponsor who is a third-country national has any form of family link with a Union citizen, despite the fact that the sponsor, in her own right, satisfies the criteria to be granted family reunification, is likely to undermine legal certainty. Lastly, it seems to me nonsensical that it should be precisely the fact that the spouse is a Union citizen that gives rise to serious disadvantages for a third-country national desiring family reunification with her child, born of a previous relationship. One means of avoiding such an outcome would be to interpret Article 3(3) of Directive 2003/86 rather strictly.

108.

The arguments set out in the preceding points of the present Opinion therefore lead me to believe that, as the Court held in the judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776), application of Directive 2003/86 cannot be ruled out merely because the sponsor is a third-country national and the parent of a Union citizen. The case-law should recognise that being the spouse of a Union citizen does not preclude the possibility of applying for family reunification on the basis of the provisions of that directive.

109.

Bearing in mind that the application for family reunification was not made by XU or by his mother, but in fact by his mother’s spouse, who is a Union citizen, it seems to me that the Court should draw the referring court’s attention to the possible right to family reunification between XU and his mother, under Directive 2003/86.

110.

It should be noted in that respect that, in order to process that application, it will be necessary to determine whether all the other legal requirements are satisfied in the present case, including the sufficient resources requirement laid down in Article 7 of Directive 2003/86. ( 54 ) As I have already stated in this Opinion, ( 55 ) such an assessment is a matter within the competence of the national authorities. Moreover, in the absence of more detailed information, no further indications can be given as to how that directive should be interpreted.

111.

Should the referring court find that, on the date on which the application for a residence permit was rejected, XU was not entitled to family reunification under Directive 2003/86, it will be for that court to examine whether that third-country national was nevertheless entitled, on that date, to a derived right of residence under Article 20 TFEU.

112.

According to the Court’s case-law, already referred to in this Opinion, that could only be so if there was a relationship of dependency between XU and his family member who is a Union citizen, such that XU’s forced departure from the territory of the Union would mean that the Union citizen in question would in practice also be compelled to leave that territory. ( 56 ) In order to provide a response of use to the referring court, I propose to examine the family structure at issue from the perspective of any effect that a refusal to recognise XU as having a right of residence could have on his half-brother and his stepfather, both Union citizens.

113.

It should be noted that such an effect would be primarily indirect, given the mother’s preponderant role in the family unit. As the referring court does in fact state, XU’s forced departure would very probably result in his mother having to accompany him in their country of origin. The referring court bases that assessment on certain specific circumstantial evidence, namely the fact that the mother has sole custody and the fact that XU was still a minor at that time. Indeed, it is not difficult to imagine that if XU’s mother in practice had to leave the territory of the European Union so that she could continue to meet her parental obligations to her minor child, there would undoubtedly be serious repercussions on the lives of all the persons concerned.

114.

That aspect calls for a number of comments which will enable me to give a clearer picture of what is at stake in this case. In my analysis, I have highlighted the particularly sensitive context of an administrative decision by the national immigration authorities, which may have the effect of bringing the family unit to an end. ( 57 ) In that context it must be borne in mind that such an administrative decision generally results in the members of the family facing an extremely difficult choice, that is to say, whether to accept being physically separated or to go abroad together. Whatever the family decides in that situation, its future will be uncertain in many ways. The family will have to address existential questions since, depending on its economic circumstances and its members’ place of origin, that separation may be merely temporary, but may equally well be permanent. In the light of the foregoing, I believe that an interpretation of EU law that would tolerate the members of a family being separated in the circumstances described is difficult to reconcile with the obligation to respect family life, as set out in Article 7 of the Charter.

115.

Should XU’s half-brother and stepfather be compelled to follow his mother (and her son) in order to maintain the family unit outside the territory of the European Union, they would clearly be deprived of effective enjoyment of their rights as Union citizens. Moreover, it should be noted in that context that the forced departure of XU and his mother would have an impact, on the effective enjoyment of the rights which XU’s half-brother, namely the mother’s other son, and XU’s stepfather, namely the mother’s husband, derive from their status as Union citizens, that is probably identical to that observed in Case C‑532/19, to the extent that the referring court, after assessing the facts, finds there to be a relationship of dependency for the purposes of Article 20 TFEU. ( 58 )

116.

The fact that the referring court states explicitly that XU’s half-brother and stepfather might be compelled to follow his mother (and her son) is, to my mind, an indication that this is not a purely hypothetical scenario. Nevertheless, the national court will indeed have to carry out an assessment of the facts to establish whether the relationships between the various members of the family, because they display a high degree of dependency, are capable of giving rise to a right of residence for XU under Article 20 TFEU.

117.

In relation more specifically to identification of a relationship of dependency in the circumstances of the present case, the foregoing observations highlight the fact that this case is much more complex than most of the other cases already considered by the Court which typically – as in Case C‑34/09, Ruiz Zambrano, ( 59 ) which gave rise to the case-law on the right of residence under Article 20 TFEU – involve a relationship of dependency between only two people, that is to say, a third-country national and a Union citizen. As I have already stated above, ( 60 ) in the present case, the risk to effective enjoyment of the rights conferred on Union citizens does not stem directly from XU’s forced departure. The risk is instead indirect, because, in practice, his mother would be compelled to leave the territory of the European Union in order to follow her child XU, even though she has a right of residence. Accordingly, the relationship between the mother (and not necessarily XU) and the minor child who is a Union citizen is key to examining the case, given the preponderant role played by the mother in the family unit, particularly the fact that she is the carer of both her children (having sole custody of one and caring jointly for the other).

118.

I therefore believe that a more analytical and flexible approach should be preferred in order to have due regard to the indirect effects within the family unit. The Court’s case-law should accordingly be clarified to extend the scope of Article 20 TFEU so that it includes such cases as well. As regards the present case, I suggest that the referring court should be invited to focus its assessment of the facts on the relationship of dependency between the mother and her Union citizen son (XU’s half-brother), even though it is clearly XU who is directly affected by the national authorities’ refusal to recognise him as having a right of residence. As a result of that approach, it is likely that XU will be able successfully to derive a right of residence under Article 20.

119.

For the sake of completeness, I would emphasise that such an approach does not in the slightest involve a disproportionate expansion of the scope of Article 20 TFEU to situations which undoubtedly do not deserve the protection of EU law. To demonstrate the consistency of the proposed approach, I believe it is necessary to call to mind once again O and Others, which bears a number of similarities to the present case, such as the fact that both cases concern children being cared for within reconstituted families.

120.

It should be borne in mind that, in the judgment given in that case, the Court was at pains to clarify that it was open to the referring court to find that there was no relationship of dependency, for the purposes of Article 20 TFEU, between the third-country national, who had applied for a right of residence under that article, and the son, who was a Union citizen, of his spouse, a third-country national residing lawfully on the territory of the Member State concerned. The Court referred, first, to the fact that the Union citizen’s mother had a permanent right of residence in the territory of the Member State concerned, and, second, to the fact that her husband did not have legal, financial or emotional care of the Union citizen, who was not his child, and that that legal, financial and emotional responsibility lay exclusively with his wife, who was the Union citizen’s mother. In its judgment, the Court appears also to have relied on the premiss that the child, a third-country national born of the relationship between the applicant for a residence permit and his spouse, was able to remain on the territory of the Member State concerned with the mother. The mother was therefore able to live with both her children in the territory of the European Union. ( 61 )

121.

In the present case, in contrast, it is the child of the third-country national, residing lawfully in Spain, who was refused a residence permit. That third-country national therefore cannot continue to live in the territory of that Member State with her two children. In addition, if she decided to accompany XU out of the territory of the European Union, her second child, a Union citizen, would not be able to remain within the European Union without being deprived of care by both of his parents. In practice, the only means of preserving that joint care would, in contrast, be for both that child and his father, also a Union citizen, to leave the territory of the European Union.

122.

Since there are decisive differences between those two cases, it seems reasonable to conclude that in O and Others there was no ‘relationship of dependency’ for the purposes of Article 20 TFEU, as the Court found, and that there is such a relationship in the present case. It is legitimate to find there to be such a relationship of dependency only where the criteria established in the case-law are satisfied which, as I have just demonstrated, they manifestly were not in O and Others. Even though both cases are complex, there is no doubt that the family members in the present case deserve effective protection, in particular so that the two Union citizens are not deprived of effective enjoyment of the substance of the rights conferred by that status. The proposed approach is therefore fully compatible with the Court’s case-law.

123.

In the light of the foregoing, it must be found that, in the present case, it cannot a priori be ruled out that XU has a derived right of residence under Article 20 TFEU. That finding is subject to the assessment, which it is for the referring court to carry out, of whether there is a relationship of dependency between XU’s mother, a third-country national, and her minor child, a Union citizen, of such a nature that, if XU were refused a right of residence, the dependent Union citizen would be compelled to leave the territory of the European Union and would thereby be deprived of effective enjoyment of the substance of the rights conferred by that status.

124.

It can be seen from the analysis of the first topic that, in the circumstances of these cases, it cannot a priori be ruled out that the third-country national has a derived right of residence under Article 20 TFEU. ( 62 ) Subject to the assessment which it is for the referring court to carry out in the light of the right to respect for private and family life and of the obligation to take account of the best interests of the child, it should be found that, in each of the cases in the main proceedings, the Union citizen appears to be in a relationship of dependency of such a kind that, should the third-country national be refused a right of residence, the dependent Union citizen would be compelled to leave the territory of the European Union and would thereby be deprived of effective enjoyment of the substance of the rights conferred by that status.

125.

The second topic concerns, in essence, whether the Spanish administrative practice is in conformity with the requirements, laid down in the case-law, that are applicable for an examination of a relationship of dependency for the purposes of Article 20 TFEU.

126.

According to the information provided by the referring court, that practice typically consists of refusing to grant a residence permit to a third-country national who is a family member of a Union citizen, solely on the ground that the Union citizen does not have sufficient resources for himself or herself and that family member (or sickness insurance), without examining whether there is a relationship of dependency between them, for the purposes of Article 20 TFEU, that is to say, a relationship as a result of which, in practice, the Union citizen would be compelled to leave the territory of the European Union as a whole if that family member were deprived of a permit to reside on Spanish territory.

127.

As I indicated in my analysis of the first topic, ( 63 ) the Court has already had an opportunity to clarify, in paragraphs 34 to 54 of the judgment in Subdelegación del Gobierno en Ciudad Real, that such a practice is incompatible with Article 20 TFEU.

128.

The relevant criteria by which it can be established whether a third-country national is entitled to a derived right of residence under Article 20 TFEU have also been set out as part of that analysis. I explained in detail that one of the key aspects of the assessment to be carried out by the competent authorities is the need to establish whether there is a relationship involving a high degree of dependency between the third-country national who is a family member of a Union citizen, and that Union citizen. ( 64 ) While emphasising the importance of protecting young children and, in so far as possible, preserving family unity, I noted that it is not sufficient for the national authorities to take into account any material dependency between a child, who is a Union citizen, and his or her third-country national parent. It is also necessary to determine the extent of the emotional relationship with that third-country national and the consequences that his or her departure could have on the psychological equilibrium of that child. ( 65 )

129.

Notwithstanding the foregoing, it should be noted that, even where such a relationship of dependency exists, a third-country national who is a family member of a Union citizen may be refused a residence permit where that third-country national represents a genuine, present and sufficiently serious threat to public policy or public security, having regard, inter alia, to criminal offences committed by him or her. ( 66 ) As part of my analysis of the first topic and, particularly, of Case C‑532/19, in respect of QP’s criminal record, I provided some useful guidance for interpreting the terms ‘public policy’ and public security’. ( 67 ) Lastly, I noted that a person cannot automatically be classified as a threat to those public interests, but that such a classification can be established only after a specific assessment of all the current and relevant circumstances of the case, in the light of the principle of proportionality, the child’s best interests and the fundamental rights. ( 68 )

130.

It should be noted that, since the Spanish administrative practice does not require any such analysis in order to establish whether there is a derived right of residence under Article 20 TFEU, that practice does not satisfy the requirements laid down by the Court’s case-law. Accordingly, that administrative practice cannot be found to be in conformity with EU law.

131.

Having regard to the foregoing, my analysis of the second topic must be concluded by finding that Article 20 TFEU, as interpreted by the case-law of the Court, precludes the administrative practice described above.

132.

In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain) as follows: