Case C-701/26, Korsfalk – a right of residence for someone the State cannot name
A derived right of residence under Article 20 TFEU is not a favour to the parent. It exists because without it a Union citizen child would have to leave the Union. Sweden asks what happens when the parent cannot prove who they are.
Facts
FT is in proceedings against the Migrationsverket, the Swedish Migration Agency, before the Kammarrätten i Stockholm sitting as the Migrationsöverdomstolen (Migration Court of Appeal). Swedish law requires a third-country national’s identity to be established before a derived right of residence under Article 20 TFEU can be recognised, and separately requires foreign nationals residing in Sweden to hold a passport, a requirement the referring court explains is imposed for reasons of upholding public policy. The court has referred three questions, moving from whether the identity requirement is permissible at all, through how unestablished identity bears on the public-policy assessment, to whether it may enter a proportionality balance. (Korsfalk is a fictitious case name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
According to the Official Journal notice, the Kammarrätten i Stockholm – Migrationsöverdomstolen asks:
1. Does Article 20 TFEU preclude a national requirement that a third-country national’s identity must be established in order for that third-country national to be recognised as having a derived right of residence under that article?
2. If the answer to the first question is that Article 20 TFEU precludes a national requirement that a third-country national’s identity must be established, how should the fact that a third-country national’s identity has not been established be taken into account when assessing whether the foreign national poses a threat to public policy and security? This is relevant because, under Swedish national law, foreign nationals residing in Sweden are required to hold a passport for reasons of upholding public policy.
3. In any event, may the fact that a third-country national’s identity has not been established be taken into account in a proportionality assessment between the individual’s interest in being granted a derived right of residence under Article 20 TFEU and a Member State’s interest in ensuring that immigration remains regulated?
Sources
OJ notice C/2026/4400 (EUR‑Lex) · Case file on CURIA · Treaty on the Functioning of the European Union, Article 20
Comment
The three questions form a retreat in good order. If the identity requirement cannot stand as a condition, may unestablished identity nonetheless count as a public-policy concern? And if not that, may it at least weigh in the balance? A national court that structures a reference this way has usually concluded the front door is shut and is testing the windows.
It is shut for a reason that has nothing to do with the parent. A derived right under Article 20 TFEU is not granted because the third-country national deserves it but because refusing it would force a Union citizen — usually a child — to leave the territory of the Union and lose the substance of the rights attaching to that status. The Court set out the required analysis in Case C‑82/16, K.A. (ECLI:EU:C:2018:308), holding that a Member State may not refuse to examine an application for family reunification solely on a formal ground, without examining whether there exists a relationship of dependency between the Union citizen and the third-country national of such a nature that, in the event of refusal, the Union citizen would in practice be compelled to leave the territory of the Union as a whole. Dependency is a factual condition between two people. It does not become weaker because one of them lacks a passport.
That is the difficulty with question 2, and the referring court has flagged it with unusual candour by explaining why the passport rule exists — because Swedish law classifies it as a matter of public policy. Stated plainly, that is a conversion: an administrative shortfall is relabelled as a threat, and the threat then triggers an exception the Treaty allows. The Court has consistently required the public-policy exception to rest on a genuine and sufficiently serious threat to a fundamental interest of society, assessed on the individual’s own conduct. Not knowing someone’s name is not conduct. If unestablished identity could satisfy the exception, every case in which the parent lacks documents would resolve itself without anyone ever reaching the dependency question.
Question 3 is the most likely survivor, and also the most delicate. There is nothing objectionable in a Member State weighing an interest in regulated immigration; the Court has never said otherwise. But a proportionality balance is only lawful if both sides are correctly stated, and on the individual’s side of the scale sits not the parent’s interest in remaining but the Union citizen child’s interest in not being expelled from the Union. Those are not the same weight, and the referring court’s own formulation — “the individual’s interest in being granted a derived right of residence” — states the lighter of the two. How the Court corrects that framing, if it does, will matter more than the answer to the first question.
The companion reference lodged the same day by the same court, C‑700/26, Aspebrink, takes the other route around the same obstacle: not missing information, but information deliberately withheld.