According to the Luxembourg Law on Immigration of 2008 (the “Law of 2008”) a third country national with sufficient resources may apply for a private reasons residence permit in Luxembourg (Article 78 (1) a) of the Law of 2008). The criteria of “sufficient resources” is appreciated with reference to the Luxembourg unqualified minimum salary.

In addition to having sufficient resources, the applicant must also prove that he/she has adequate housing, health insurance coverage and not be a threat to public order.

Over the past years, the Immigration Authority has refused such applications, among others on the following grounds:

• The applicant must have a bank account in Luxembourg
• The applicant must have a close link to Luxembourg
• The income of the applicant must be derived from ou „available in“ Luxembourg
• The Immigration Authority has a discretionary power to accept private reason residence permit application

The Administrative Court of Appeal had already ruled that the applicant was allowed to rely on income outside of Luxembourg (Administrative Court of Appeal 16 December 2021 n°46467C).

In two recent decisions, the Administrative Court (Tribunal Administratif) has confirmed the position of the Court of Appeal of 16 December 2021.

The Immigration Authority had refused applications for private reasons, largely on the same grounds as those mentioned before. In addition, the Immigration Authority was of the opinion that a shared property (logement partagé) would not fulfill the condition of “adequate housing”.

Close link with Luxembourg and discretionary power of the Luxembourg Authority

Regarding the “close link” with Luxembourg and the “discretionary power of the administration”, the Court reminded that this condition is not foreseen by law, nor by the decision of the Administrative Court of Appeal of 16 December 2021:

Thus, confronted with a decision that falls within a broad discretionary power, the administrative judge, seized of an action for annulment, is called upon to verify, according to the documents and elements of the administrative file, whether the facts on which the administration has based itself are materially established to the exclusion of any doubt and whether they are of such a nature as to justify the decision, in the same way as it can examine the proportional character of the measure taken in relation to the established facts, in the event that a disproportion should be retained by the administrative court, which would then suggest an excessive use of power by the authority that took the decision.

 The State party explains, in this context, that the Minister could have taken a discretionary decision to refuse the applicant a residence permit for private reasons, even if the latter fulfilled all the legal conditions for obtaining one, justifying this decision by the fact that Mr. […] had not demonstrated any link or attachment with Luxembourg. Therefore, in the absence of justification of the reasons for his application, the Minister could decide, in view of the general interest, to refuse to issue him a residence permit.

 In the above developments, the Court was led to conclude that the minister could not require the applicant to prove a condition not provided for by the law, namely that relating to the reasons for his arrival, as well as the existence of a link or attachment with Luxembourg.

 The fact that the Minister did not explain why he considered that the refusal to grant a residence permit for private reasons to Mr. […] would be preferable to the satisfaction of the public interests for which he is responsible, and the lack of motivation in this respect made it impossible for the Court to verify the proportionality of such a refusal.

 Consequently, the Court is led to conclude that the Minister could not, without exceeding his margin of appreciation, refuse to grant the applicant a residence permit for private reasons.

Appropriate housing

The Administrative Court rejected the argument of the Immigration Authority by which a shared property would not meet the condition for adequate housing.

Financial resources

Regarding the financial resources, in the first case (Administrative Court 20 February 2023 n°46482), the applicant produced evidence of a bank account with a deposit of the equivalent of approx. EUR 44.850 EUR as well as rental income in his country of origin for approximately EUR 2,800 per month. The Court came to the conclusion that the rental income was above the unqualified Luxembourg minimum salary (EUR 2,141.99 at the time of application) and must be considered, together with the savings of the applicant held on the bank account.

In the second case, the applicant produced evidence of a bank account deposit in a bank in Chine with the equivalent of approx.. 101,000 EUR and a second bank account in Canada with a deposit of an equivalent of approx. CAD 31,200. On top of these deposits, the applicant showed evidence of monthly rental income of approximately 3,400 EUR. The Court came to same conclusion as for the first case, in the sense that the rental income was above the unqualified Luxembourg minimum salary and must be considered, together with the savings of the applicant held on the bank account.

Disclosing note:

The author of this article has acted as legal counsel for all above mentioned cases.

As of the date of this publication, the decisions of the Administrative Court of 20 February 2023 are not final and still subject to an appeal.