The curiosity of T.C.E. v Germany lies in the eye of the beholder. The case can be viewed as the latest instance in the ECtHR’s case law on residence and the right to family life (Article 8 ECHR), an intriguing invitation to comparative legal analysis, or a missed opportunity leading to an unfortunate conclusion of the legal proceedings. Given Mark Klaassen’s elaborate analysis of the first facet, this Blog will focus on the latter two. Carrying on where Klaassen finished, it will juxtapose the European Court of Human Rights’ (ECtHR) reasoning in T.C.E. v Germany against the European Court of Justice’s (CJEU) ruling in K.A. v Belgium, which was handed down only two month later and involved similar facts. Furthermore, it will highlight the legal opportunity missed in the proceedings leading up to the ECtHR’s judgment.

Initially, it is important to recall the facts in T.C.E. In light of Klaassen’s analysis, a brief outline will suffice. T.C.E. was a Nigerian national who had entered Germany on a temporary residence permit. During his stay, he had a child with a German national. The child acquired German nationality at birth. After being convicted for a serious drug offence, T.C.E.'s residence permit was not extended, and after being released from prison, his expulsion from Germany was only suspended because he lacked a valid passport. Subsequently, he applied for a residence permit to protect his family life with his daughter, whom he continued to see on a regular basis despite having separated from the child’s mother. The German authorities rejected his application ex lege, referring to the pending expulsion order and entry ban. Before the ECtHR, T.C.E. invoked his right to family life (Article 8 ECHR), claiming a right to residence to avoid being separated from his daughter. Applying the criteria that it had previously established in Jeunesse v The Netherlands, the ECtHR rejected the claim. It emphasised the fact that T.C.E.'s residence had been precarious at the time family life was founded and further referred to his conviction for a drug offence. The ECtHR also pointed to the fact that the daughter had almost attained the age of majority by the time the case was concluded and enjoyed contact with her father whilst growing up.

From a comparative legal perspective, it is interesting that shortly after the T.C.E. judgment, the CJEU adjudicated the case of K.A. v Belgium, which involved similar facts but was decided more favourably for the applicants. In understanding the different approaches taken by the ECtHR and CJEU, it is necessary to understand that K.A. is the latest brick in the wall that the CJEU has been constructing since Zambrano to protect EU Citizens. Under EU law, a third country national (TCN), on whom an EU Citizen is dependent (e.g. a child on its parent), enjoys a derived right of residence. This right protects the effectiveness of EU Citizenship, because expelling the TCN would force the EU Citizen to leave the EU as a whole as well, rendering their rights under EU law ineffective. It is the rationale of protecting EU Citizenship that led the CJEU to find that the TCN’s immigration status, at the time the relationship of dependency was established, was immaterial for establishing the derived residence right. The same applied to expulsion orders or entry bans.

This is in stark contrast with the ECtHR’s approach, in which a precarious immigration status at the time the family life is founded will bar a right to residence, unless exceptional circumstances apply. The difference between the two approaches results from what the residence right sought to protect. Under ECHR law, it is the applicant’s right to family life, whereas under EU law, it is the EU Citizenship of another. Hence, under the latter, the applicant’s own status does not affect the existence of a derived residence right. Yet, this does not mean that expulsion orders or entry bans are excluded entirely from the CJEU’s analysis. In line with its earlier decision in Rendón Marín, the CJEU confirmed in K.A. that Member States could take the reasons underlying such measures into account when restricting the TCN’s derived residence right in the interests of public policy or security. However, this is a stringent separate test, as states must show that the individual poses a ‘genuine, present and sufficiently serious threat’ and weigh these against the best interests of any children involved. As an illustration, Klaassen convincingly argues that the EU law test would probably have applied in T.C.E.’s favour.

Why then did EU law not play a role in the domestic proceedings prior to the ECtHR’s judgment in T.C.E.? Klaassen suggests that T.C.E.’s ‘exceptional leave to remain’, called ‘Duldung’ in German immigration law, precluded the application of EU law, because there was no actual threat of deportation. This explanation appears to be at odds with the CJEU’s emphasis on regularised residence in Zambrano. Under §60a(1) and (3) of the German Residence Act, Duldung only suspends the deportation of a foreigner temporarily. Duldung does not constitute a right to residence, nor does it usually include a work permit. In Zambrano, however, the CJEU emphasised the importance of granting the TCN parent a right to residence and a work permit, because the lack of either could still jeopardise their ability to remain in the EU. It seems unlikely that the Duldung precluded the application of EU law in T.C.E.’s case.

A survey of the domestic German proceedings suggests a simpler reason: The appeal court heard the case on the 21^st of March 2011, only thirteen days after the CJEU adjudicated Zambrano. It seems likely that EU law was simply not invoked by the applicant, neither on appeal nor eleven months later in cassation, even though German administrative procedure would have allowed for the consideration of subsequent changes to the law in this case. Keeping in mind the benefits of hindsight, the outcome in T.C.E. is unfortunate, as K.A. suggests that EU law could have been invoked in the applicant’s favour.