One in ten foreigners entering the EU does so on a study permit. Immigration authorities are required to prevent irregular migration, but they can only reject study-related residence applications if there is specific evidence of potential abuse. This rule is set out in directly applicable Article 20(2)(f) of Directive 2016/801. A striking example is the recent ReLex case, in which a Malagasy prodigy was denied entry for graduating at age 11.
Her residence permit was refused based on reflections that the information provided regarding her completion of secondary education in 2017 (12th grade) at the age of 11 defies logic. The decision thus states the reasonable doubts regarding the purpose and conditions of the person’s arrival in Lithuania, as well as her intention to study at an educational institution; that is, the information submitted with the application for a temporary residence permit did not correspond to reality. Consequently, it was held that the individual provided inaccurate, incomplete, or illogical answers to the questions asked during the interview, and hence, there were serious grounds to believe that there was a risk of illegal migration by this person. The Supreme Administrative Court has annulled the decision, stating that the contested decision of the Migration Department does not provide any arguments to support the aforementioned conclusion. The decision does not analyze the individual circumstances related to the applicant’s intention to come to the Republic of Lithuania and reside there in order to study, the decision does not specify which of the applicant’s statements during the interview provided grounds for concluding that the applicant’s true intentions regarding the acquisition of a temporary residence permit on the basis of studies are unrelated to her studies. As notes the Court, the Decision essentially limits itself to general statements regarding the submission of information that does not correspond to reality and serious grounds to believe that there may be a risk of the applicant’s illegal migration, as well as a reference to the provisions of relevant legislation; but no individual assessment based on the specific circumstances has been provided. Thus, the Decision does not contain an assessment of the totality of circumstances related to a person seeking to obtain a temporary residence permit in the Republic of Lithuania based on studies. A gut feeling is not enough to kill a student’s dream.
Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) underlines that the study related residence permit can only be refused if the authorities has evidence or serious and objective grounds establishing that the residence of the third-country national in the national territory would have neither the object nor the essential purpose of pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that Member State.
Article 20, which concerns the ‘grounds for rejection of an application’ establishes that Member States shall reject an application where (a) the general conditions laid down in Article 7 or the relevant specific conditions laid down in Articles 8, 11, 12, 13, 14, or 16 are not met. Even if the formal conditions are not met, any decision to reject an application shall take account of the specific circumstances of the case and respect the principle of proportionality (Para 4). Article 34 of that Directive also provides that (4) reasons for a decision declaring inadmissible or rejecting an application or refusing renewal shall be given in writing to the applicant. Reasons for a decision withdrawing an authorisation shall be given in writing to the third-country national. Reasons for a decision withdrawing an authorisation may be given in writing also to the host entity. Any decision declaring inadmissible or rejecting an application, refusing renewal, or withdrawing an authorisation shall be open to legal challenge in the Member State concerned, in accordance with national law.
EU member states are required to exercise their power in compliance with the general principles of EU law, which include the principle of legal certainty (C‑519/21, 105). The CJEU thus recently recalled that the transposition into national law of provisions of EU law requires that they be implemented by provisions with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (C‑829/21 and C‑129/22, 77). That principle seeks to ensure that the legal situations and relationships arising from EU law are foreseeable and requires that any act by an authority which produces legal effects is clear and precise so that the persons concerned may ascertain unequivocally what their rights and obligations are and may take steps accordingly. That requirement applies, in particular, where the act at issue may have negative consequences for those persons.
In most cases the refusal to grant access to the territory is detrimental to the student pursuing his education taken into consideration the time of the court process. This was particularly true in our case. In this respect it has been held by the CJEU in case C-14/23 that right to an effective remedy, enshrined in Article 47 of the Charter, would be illusory if the legal order of a Member State allowed a final, binding judicial decision to remain ineffective to the detriment of one party (see, to that effect, C‑752/18, 35 and 36). That is particularly true where obtaining the actual benefit of the rights deriving from EU law, as recognised by a judicial decision, requires compliance with time constraints. Thus, where a national administrative decision is at issue, which, in order to ensure observance of the actual benefit of the rights of the person concerned under EU law, must be adopted quickly, it is apparent from the need, arising from Article 47 of the Charter, to ensure that the action brought against the initial administrative decision rejecting that application is effective that each Member State must order its national law in such a way that, in the event of its annulment, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling that decision (see C‑556/17, 59 and the case-law cited).
The Court held therefore that the national courts must have the power to substitute, where appropriate, the assessment for that of the competent authorities or to adopt a new decision within a short period of time in such a way that a sufficiently diligent third-country national is able to benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801.
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