Art. 78 of the Law of 29 August 2008 on the free movement of persons and immigration sets forth that (1) the competent minister may deliver a residence permit for private reasons to the following persons provided their presence do not threat public order, public health or public security, they benefit from sickness insurance and have appropriate accomodation :
the citizen of a third country who may evidence that he is financially independent ;
members of the family referred to in Article 76 ;
the citizen of a third country who does not meet the requirement for family reunification but whose personal or family links considered from the point of view of their intensity, length and stability are such that refusal to grant the residence permit would infringe in a disproportionate manner his right to respect for his private and family with regard to the grounds for refusal ;
the citizen of a third country who refer to humanitarian grounds of an exceptional seriousness
(2) Persons referred to in points b), c) et d) of preceding paragraph (1) must have sufficient resources as defined by grand-ducal decree.
Mrs A citizen of the Democratic Republic of Congo filed with the competent minister a request for a residence permit based on the above mentioned Article 78 as she had met Mr. G., Luxembourg national, in August 2007 who was then posted in the Democratic Republic of Congo in a mission of advice and assistance to the European Union. Since 2007, she claims to have had personal and stable links with Mr. G. and was twice granted tourist visa (March 3, 2008-May 3, 2008 and December 3, 2008-March 18, 2009). Despite the fact that Mr. G. is still married but effectively separated from his wife, Mrs A. considers that the intensity, length ans stability of her relationship with Mr. G. entitles her to a residence permit based on the above mentioned Article 78. It is to ne noted that Mr. G. had agreed to give financial support to Mrs A. who did not have sufficient resources as she intended to pursue her studies in Luxembourg.
The competent minister refused to grant a residence permit to Mrs A citizen of the Democratic Republic of Congo on the grounds that she did not fall within any of the four categories set forth under Article 78 of the Law of 29 August 2008 on the free movement of persons and immigration.
Mrs A. appealed against that decision claiming that the the competent minister made an incorrect application of Article 78 (1) c) which is to be interpretated in the light of Article 8 ECHR. In any instance, Mrs A. claims that she falls within the scope of Article 78 (1) d) as she would be subject to blackmail upon her return to her home country because of her relationship with Mr. G.