Professor Steve Peers, University of Essex
Turning 18 is a big moment in any young person’s life. Although it rarely entails, by itself, an immediate change in their social and economic links with their parents, it is widely recognised as a significant rite of legal passage, marking as it does the official date of becoming an adult.
But what if the main legal impact of turning 18 is not the enhancement of a young person’s legal rights, but rather their deterioration? That is often the scenario in immigration or asylum law, in particular for those who need protection the most: unaccompanied minors. Since immigration and asylum procedures often take some time, the question then arises what happens if applicants are underage when a process began, but become an adult before it finishes. Do they retain throughout that process the special legal protection accorded to children? At what point exactly does that special legal status end?
That was the issue in yesterday’s judgment in A and S, which was the first time the Court of Justice has ruled on the family reunion rights of child refugees. The judgment concerns the EU’s family reunion Directive, which contains special rules for the family reunion of refugees in general, and unaccompanied minor refugees in particular. However, it is possible that it has an impact on the status of young people in EU immigration and asylum law more generally.
The basic EU rules on family reunion
The EU’s family reunion Directive sets minimum standards, so states can be more generous if they wish. It mainly concerns reunion of spouses and minor children with a non-EU sponsor; admission of further family members is optional in most cases. It does not apply to the UK, Ireland and Denmark. However, it will apply to family reunion of UK citizens in the EU (besides those living in Ireland and Denmark) after the post-Brexit transition period, when the UK is no longer covered by EU free movement law, unless (a) they are covered by the withdrawal agreement (see discussion here), or (b) the EU (or, if legally possible, individual Member States) and the UK agree special rules on post-Brexit family migration.
The standard rules in the Directive require that: the sponsor has a residence permit valid for at least one year, and has “reasonable prospects” of obtaining permanent residence; the family members must reside outside the territory when the application is made (although Member States can derogate from that rule); “public policy, public security or public health” are grounds for rejection; conditions relating to accommodation, sickness insurance and “stable and regular resources” may be imposed; Member States may require “integration measures”; and there can be a waiting period of two years of lawful stay of the sponsor before family reunion takes place.
There are also exclusions from the scope of the Directive. It does not apply at all to: asylum seekers; persons with temporary protection; persons with subsidiary protection on the basis of national or international law; and family members of EU citizens (whether they have moved within the EU or not). Implicitly it does not apply to irregular migrants, since by definition they do not have a residence permit with the prospect of long-term residence, until and unless Member States decide to regularise their status.
Member States can set lower standards than the Directive, where it allows for such derogations, although this is subject to detailed conditions. These derogations exist as regards: children over 12, who arrive separately from the rest of the family; minimum ages for the sponsor or spouse; children over 15; and a waiting period of three years.
The Court of Justice has ruled on the Directive several times, as regards: its validity in light of human rights concerns (EP v Council); its application to dual EU/non-EU citizens (O and S) the sufficient resources condition (Chakroun and Khachab); the minimum age of spouses (Noorzia, discussed here); and the integration conditions (K and A, discussed here). Pending cases concern: the application of the Directive by analogy to family reunion with “home State” EU citizens (C and A) and persons with subsidiary protection (K and B and E); the rejection of a separate residence permit due to failure to comply with integration conditions (K); and loss of a residence permit due to fraud which the family member was unaware of (YZ and others).
As well as the special rules for refugee family reunion set out in the original Directive, subsequent EU legislation contains more favourable rules for the family reunion of other groups of non-EU citizens: holders of an EU Blue Card for highly-skilled workers (discussed here); intra-corporate transferees (discussed here); and researchers (discussed here). The proposal to amend the Blue Card law (discussed here) would enhance these rules further. Yesterday’s judgment is the first time the ECJ has interpreted any of these special rules.
Exceptions for refugees
The special rules apply to a refugee who has been “recognised” by a Member State, meaning that their asylum application for refugee status in that State was successful. A “refugee” is defined not by reference to EU law, but to international law – the UN (Geneva) Convention on the Status of Refugees and its protocol – since the Directive was adopted before the EU adopted its own asylum laws. Member States. Member States may limit the special rules to family relationships which predate entry to the Member State.
These rules waive a number of conditions for family reunion: the optional derogation for those over 12; the conditions relating to accommodation, sickness insurance and “stable and regular resources” (although Member States can apply those conditions if the sponsor or family members have “special links” with a non-EU country, or if the application was submitted more than three months after refugee status was granted); and the waiting period. The rules on evidence of family relationships are also relaxed, in the event that documentary evidence is unavailable. Finally, the optional “integration measures” requirement can only be applied after family reunion, whether the family relationship existed before entry or not.
Conversely, other conditions still apply: the requirement of a residence permit valid for at least one year, with “reasonable prospects” of obtaining permanent residence; residence outside the territory when the application is made; and “public policy, public security or public health”. Satisfying the first of these criteria is made easier by EU law, since the Qualification Directive requires refugees, once their status is recognised, to receive a residence permit valid for at least three years, and refugees can qualify for EU long-term residence status under the relevant Directive.
Most importantly for our case, the refugee rules make the admission of the parents of unaccompanied minor refugees mandatory, rather than optional; and they waive the conditions that otherwise apply to the admission of migrants’ parents (they must be “dependent” on the sponsor and they “do not enjoy proper family support in the country of origin”).
The A and S case concerns a young Eritrean woman who arrived in the Netherlands and made an asylum application just before turning 18. Her application was successful after her birthday, and a NGO shortly afterward applied on her behalf for admission of her parents and siblings on the basis of the special rules in the family reunion Directive. But could she rely on the special rules at all – given that she was over 18 when the application for family reunion was made, and indeed when her refugee status was recognised?
The Dutch government argued that the relevant date when a person must be considered a minor should be determined by national law, while the Commission argued for the date of the application for family reunion, and the Polish government argued for the date of the decision on the family reunion application. The applicants (the young woman’s parents) argued for the date of her initial entry onto the territory. No one argued for another reasonable possibility: the date of the decision on the refugee application (although that would raise the question of what the date would be if that decision was appealed). Ultimately the Court decided that the relevant date was the date of applying for refugee status.
The Court’s starting point was (as it had ruled before) the “right” of family reunion guaranteed by the Directive, which the addition of the intention (in the preamble of the Directive) to ensure “more favourable conditions for refugees for the exercise of” that right, “on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there”. Those more favourable rules include a mandatory admission of the parents of unaccompanied minors, waiving the normal conditions which would usually apply.
Next, the Court noted that the definition of “unaccompanied minor” in the Directive was not absolutely fixed at entry: parents could arrive after the child’s entry, or desert the child after entry. In that context, it was unclear from the text of the Directive when the requirement of being 18 had to apply. But that did not mean Member States had discretion to decide that issue; the Court applied the normal rule that in the absence of an express reference to the laws of the Member States, a provision of EU law “must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question”.
Since other provisions of the Directive refer explicitly to national law, the absence of such a reference in the definition of “unaccompanied minor” had an a contrario effect. The objective of the Directive was to give a right of admission to their parents, in the context of protecting family life with more favourable conditions for refugees. This case had to be distinguished from Noorzia, on the minimum age of spouses for family reunion, which concerned an optional rule that expressly gave Member States discretion to decide on the age. Ultimately, then, the issue could not be left to each Member State to determine.
Rather, the uniform definition of “unaccompanied minor” had to be determined “by reference to the wording, general scheme and objective of that directive, taking into account the regulatory context in which it is found and the general principles of EU law”. As noted already, the wording didn’t settle the issue. The general scheme included the exclusion of asylum-seekers from the scope of the Directive, and the application of the special rules only after the refugee had been “recognised as such by the Member States”. In that context, the Court noted that the EU’s Qualification Directive requires refugee status to be granted if an applicant satisfies the relevant conditions, and states that “recognition of refugee status is a declaratory act”, so that a person who meets the conditions for refugee status “has a subjective right to be recognised as having refugee status…even before the formal decision is adopted in that regard”.
So it followed that the date for assessing the applicant’s age could not be when the decision on refugee status was taken. Such an interpretation would make status as a minor dependent on the functioning of national administrations, and thus undermine the effectiveness of the family reunion rules and the aims of the Directive, along with “the principles of equal treatment and legal certainty”. That’s because two different children of the same age who applied for asylum would be in a different position depending on how quickly their application was processed, an issue which was outside their control – governed rather by Member States’ decisions about organising their administration. In any event, due to “substantial surges” in asylum applications, decision making might be long winded and “time limits laid down in that regard by EU law are often exceeded”, so a “substantial proportion of refugees” who are unaccompanied minors might be denied their family reunion right. (Note that, with respect, the Court is confused here: the rules in the EU’s asylum procedures Directive on time limits to decide on asylum applications don’t apply until July 2018).
Rather than taking up the option in EU law to fast-track such cases, there might be the “opposite effect”, which would frustrate the objectives of EU legislation and the EU Charter rules on rights of the child. Here the Court obliquely recognises the possible cynicism of national interior ministries, which might simply delay deciding on applications until a child turns 18 if that would lead to preventing the admission of parents. Furthermore the Court rules that using the date of the decision on refugee recognition would “undermine legal certainty” for the young applicants as regards their family reunion.
The Court’s preferred interpretation – using the date on which the asylum application was submitted – “enables identical treatment and foreseeability to be guaranteed for all applicants who are in the same situation chronologically”, as the outcome would depend on facts intrinsic to them, not to the efficiency of national administrations. However, the Court did accept the argument of the Dutch government and the Commission that some time limit should apply. In the judges’ view, a “reasonable time” would “in principle” be three months after the decision on refugee status, matching the optional three-month deadline explicitly set out in the Directive for refugees to make an application for family reunion before the conditions of accommodation, sickness insurance and sufficient resources apply.
Finally, the Court rejected other possible dates to determine the young person’s age: the date of entry into the territory of a Member State had to be rejected because of the link of the family reunion right with refugee status, which could only be granted after an asylum application; and the date of applying for family reunion, or the date of the decision on that application, would infringe the basic logic of the Court’s reasoning.
The core motivation of the Court’s judgment – to give broad effect to family reunion rights in general, and to the special family reunion rights of child refugees in particular – reflects a rights-based reasoning, rather than the control-based approach taken by many Member States and the EU institutions during the perceived “refugee crisis” of the last few years. Although the Court ties its interpretation of the family reunion Directive closely to the asylum process – even though there was no EU asylum law when the Directive was adopted – it nevertheless views that process with suspicion, as a potential mechanism for frustrating the applicant’s rights. The Court may have an opportunity to develop this line of reasoning further soon, if it is willing to answer questions in the pending cases (referred to above) where the Member State concerned has extended the special rules for refugees in the family reunion Directive to apply also to sponsors with subsidiary protection status (an alternative form of “international protection” which applies where applicants don’t satisfy the criteria for refugee status).
If the Court had fully followed its own logic on the declaratory effect of granting refugee status, then its final conclusion of using the date when the minor applies for asylum is suspect, for the child concerned must have been a refugee either as soon as they entered the territory, or at some later point (likely before they actually applied for asylum) when the situation in their country of nationality or (if stateless) habitual residence changed for the worse. While the Court is right to say that the Directive links the special family reunion rights with refugee status, that link is built in to the Directive anyway because the special family reunion right can never be triggered in the first place unless a successful asylum application is made. In any event, the Court’s judgment means that it is wise for an unaccompanied child who is nearly 18 to apply for asylum as soon as possible after entering the territory, to avoid any risk that they will not be able to invoke the special family reunion rights in the event that their application for refugee status is successful.
What constraints do Member States still retain on family reunion for refugees just turning 18? They can still try to limit access to their territory for the would-be young refugees. However, if those potential refugees make it to the territory, Member States can’t simply ban minors from applying for refugee status in the first place, since the asylum procedures Directive requires that they must be able to apply for asylum one way or another. If refugee status is granted, Member States can use any of the applicable options to restrict family reunion in general or the special refugee rules in particular that they have not already invoked. (Note that some of those options are off the table, since they are subject to a “standstill” rule and so had to be invoked already if they were going to be validly applied).
The Court even gives Member States a new limitation: a possible three month deadline “in principle” for the young refugees to trigger the special rules for their parents to join them. But if the sponsors are subject anyway to the three month deadline to avoid the conditions of accommodation, sickness insurance and sufficient resources, they will need to move quickly in any event. Although refugees have rights to employment in the qualification Directive, it might be hard for a young refugee to find a good enough job in the time available (access to employment for asylum seekers is limited, by the EU’s reception condition directive); and unlike EU free movement law, the family reunion Directive, as confirmed by the case law (see Khachab) requires the sufficient resources to come from the sponsors, not from their family members. In light of the principle of effectiveness, the three month deadline should not apply to those who were wrongly deprived of their family reunion rights before the Court’s judgment (see the recent King judgment on working time holiday pay, by analogy),
Are there broader implications of the judgment for other EU asylum legislation? (There are also special rules on unaccompanied minors in the EU’s returns Directive, concerning irregular migrants). This would be relevant to the qualification Directive, which includes, among other things, an obligation to trace unaccompanied child refugees’ family members. For its part, the asylum procedures Directive grants unaccompanied minors, among other things, exemptions from some procedural limitations; it also sets out rules on the sometimes controversial issue of assessing the age of children in the event of a dispute. The reception conditions Directive also requires some special treatment of unaccompanied minors, including in the context of detention. Finally, the Dublin rules on responsibility for asylum seekers contain a special rule for responsibility for the asylum applications of unaccompanied minors, which the Court of Justice previously interpreted generously. Like the family reunion Directive, all this legislation has essentially the same definition of “unaccompanied minors” as the family reunion Directive, without addressing the “passage into adulthood” point, so logically ought to be interpreted the same way. (Note that conversely, EU criminal law legislation on child suspects’ rights – discussed here – does explicitly address this issue, setting out rules on this point similar to the Court’s family reunion judgment in its Article 2(3)).
The Court’s judgment might cause political difficulty for Member States, given that the special rules on unaccompanied minors were highly contested when EU refugee legislation was last renegotiated, ending in 2013. (A modest proposal on unaccompanied minors and the Dublin rules, dating from 2014 and discussed here, got nowhere). The issue may well arise again now that the legislation is being revised a further time, in particular as regards the Dublin rules, where (as discussed here), the Commission seeks to overturn the Court’s prior ruling in favour of unaccompanied minors.
Legalese aside, what is the impact of the new judgment for the families of young refugees? It means they can come straight to the Member State where their child lives, without having to go through the Dublin process first. (Although the Dublin rules allocate responsibility to the State where a family member is a refugee, there are sometimes problems applying this in practice; and the Commission proposal to amend the Dublin rules seeks to undercut those family rules indirectly). When they arrive, they will have access in principle to rights of access to employment et al on the same basis as their young refugee family member, as set out in the qualification Directive.
But most fundamentally, the ruling means that family members have safe passage: the obligation to give them authorisation for legal entry means they can travel to the EU without having to pay smugglers and risk mistreatment or drowning en route. So it’s no exaggeration to say that this judgment could literally save the lives of the parents of some vulnerable young refugees.
Barnard & Peers: chapter 26
JHA law: chapter I:5, I:6
Photo credit: care4calais.org