The case concerned the interpretation of Article 5(4) of Directive 2003/86/EC (Family Reunification Directive).

X, an Afghan national, applied for a family reunification visa at the Belgian Embassy in Islamabad, Pakistan, in October 2013 to join F.S.M., her alleged spouse, an Afghan national holding refugee status in Belgium. The Belgian immigration authority rejected the application on the grounds that the matrimonial link between X and F.S.M. had not been established. An appeal against that rejection was dismissed in July 2016. Upon subsequent appeal, the Council of State set aside the first-instance judgment and remitted the case to the Council for Aliens Law Litigation (CALL) proceedings for fresh examination holding that exceeding the time limit provided in Article 12(a)(2) of the Aliens Law entailed without exception the granting of an entry and residence permit to the applicant, even if there were doubts as to the existence of her matrimonial link with F.S.M. The CALL was doubtful whether the Council of State's ruling was in conformity with Directive 2003/86 (the Family Reunification Directive). Against this context, the CALL referred for preliminary ruling the following question

‘Does Directive 2003/86 — having regard to Article 3(5), as well as the objective thereof, in particular, the determination of the conditions for the exercise of the right to family reunification — preclude national legislation which requires that Article 5(4) of Directive 2003/86 be interpreted as meaning that the consequence of no decision having been taken by the expiry of the prescribed period is that national authorities are under an obligation to grant, of their own motion, a residence permit to the person concerned, without first establishing that that person in fact satisfies the conditions for residence in Belgium in conformity with EU law?'

The court noted that while Article 5(4) of the Family Reunification Directive states that a decision on the application for family reunification must be taken in any event no later than nine months from the date of lodging, it does not fix any consequence upon the end of such a period in the absence of a decision. In such a case, the court recalled that it is for national legislation to determine and that, while EU law does not preclude the establishment of implicit acceptance or authorisation schemes, such schemes must not impair the effectiveness of EU law. Then, the court evaluated the objectives of the Family Reunification Directive. Looking at Recital 6, Article 1, Article 5(2), and Article 11(2) of the Family Reunification Directive, the court concluded that the competent national authorities are required, before authorising family reunification under the directive, to establish the existence of the relevant family links between the sponsor and the third-country national. In those circumstances, the court ruled that national authorities may not issue a residence permit under Directive 2003/86 to a third-country national who does not meet the requirements laid down in that directive for its issuance. The court noted that Belgian legislation provided for the issuance of a residence permit without exception upon the expiry of the six-month period. This, the court ruled, insofar as it allowed the issuance of a residence permit to a person who does not meet the requirements for obtaining it, impaired the effectiveness of that directive and ran contrary to its objectives.