Chiara De Capitani (PhD) is a linguist agent at the European Commission and member of Amnesty International Belgique francophone’s Sexual Orientation and Gender Identity (OSIG) coordination. The views, thoughts and opinions expressed in this paper are solely that of the author and do not necessarily reflect the views, policy or opinion of the European Commission or of Amnesty International.
Photo credit: Enno Lenze, via Wikimedia Commons
At the time of writing, the
European Parliament recently voted in favour of the EU’s New Pact on Migration
and Asylum, amidst
warnings from over 50 Civil Society Organisations. According
to Amnesty International, the agreement is “a continuation of a decade of
policy that has led to the proliferation of rights violations in Europe [and]
will have devastating implications for the right to international protection in
the bloc and greenlight abuses across Europe including racial profiling,
default de facto detention and pushbacks”. These
agreements for new legislation have been analysed in this blog in several
posts (1,2,3)
with the post on the new
Eurodac Regulation aptly titled “resistance is futile”.
However, “hope is like the sun”
and a ruling from the 30th of January reminds us of the judicial lawmaking role
the Court of Justice of the European Union can play setting higher human rights
standards than the ones negotiated at political level – in this case, on the
right to family reunification.
Introduction
Directive 2003/86/CE on the right to family
reunification (the “Family reunification directive”) can be seen both as the
expression of an “individual right or as a mechanism of migration management” (*).
Adopted over twenty years ago after three years of complex negotiations within
the Council of the European Union the directive is permeated with discretionary
clauses, thereby failing to harmonize the national rules of the member states.
Neither the definition of family members beyond the nuclear family nor the
conditions for family reunification have been harmonized. However, despite the
fact that its transposition into national law has given rise to significant
variations between member states, family reunification is one of the main
reasons for migration to the Union (representing between 25% and 33% of the
total number of first residence permits issued to third-country nationals in
the EU since 2008)(*) .
It is against this complex backdrop
that the Court of Justice of the European Union (hereinafter “the Court”), sitting
as a Grand Chamber, examined various crucial aspects of the right to family
reunification for unaccompanied refugee minors in the Landeshauptmann
von Wien judgment ruling under review (the present case).
The judgment highlights the need
to guarantee the effectiveness of the right to family reunification, by
ensuring more favourable conditions for unaccompanied minor refugees. This
concerns both the time limits and conditions for benefiting from certain
advantages provided for in the directive and the protection of the
unconditional nature of the right to family reunification for unaccompanied
minors. In the particular circumstances of this case, by requiring the granting
of a residence permit to the sponsor's adult sister, who is totally and
permanently dependent on the assistance of their parents.
The dispute in the main
proceedings
RI (hereinafter “the applicant”)
is an unaccompanied Syrian minor who arrived in Austria in 2015 and was granted
refugee status in 2017. Three months and one day after this recognition, his
parents and his adult sister (CR, GF and TY, hereinafter “the applicants”)
submitted applications to the Embassy of the Republic of Austria established in
Syria for entry and residence in Austria for the purpose of family
reunification with the applicant. At the time of application submission, the
applicant was a minor, but reached adulthood during the procedure, leading to
the rejection of the applications.
In 2018, the applicants submitted
again applications for residence permits for family reunification to the Governor
of the Province of Vienna who rejected them on the grounds that they had not
been lodged within three months of the date on which the applicant's refugee
status had been recognized.
The applicants challenged these
decisions before the Vienna Administrative Court (hereinafter “the referring
court”). In substance, according to the Court, the questions raised by the
referring court concern three aspects of the application of Article 10(3)(a) of
the Family reunification directive, which we will examine below.
Deadline for unaccompanied
minors and their family to apply for family reunification
Under Article 10(3)(a) of the
Family reunification directive, if the refugee is an unaccompanied minor,
Member States must authorize the entry and residence for the purposes of family
reunification of his or her first-degree relatives in the direct ascending
line, without them being dependent on him or her and for as long as they do not
enjoy proper family support in the country of origin (conditions laid down in
Article 4(2)(a)).
The Court previously clarified in
the A
and S ruling (para 64) that a third-country national must be considered
a “minor” if he or she is under 18 years of age at the time of entering the
territory of a Member State and lodging an application for asylum in that
State. This is the case even if they reach the age of majority during the
asylum procedure and are subsequently granted refugee status. However, the
Court also ruled that the benefit of this provision could not be invoked without
any time limit and, consequently, the application for family reunification
should have been made within a reasonable period of time, such as, in principle,
three months from the day on which the minor concerned was recognized as a
refugee (para 61 of A and S ruling) .
In the present case, the
referring court's doubts essentially concern the application of these time
limits during the family reunification procedure instead of the asylum
procedure (paras 30 and 31). In other words, the referring court asks, firstly,
whether an application for family reunification by an unaccompanied minor
refugee can be classified as late if it was lodged during the time period when
the refugee concerned was still a minor but reached adulthood during the family
reunification procedure. Secondly, whether the time limit of three months from
the day on which the minor concerned was recognized as a refugee also applies
to cases where he or she was still a minor at the date of the application for
family reunification.
As a preliminary point, referring
to its previous case law, the Court recalls that linking the right to family
reunification of an unaccompanied minor (as provided for in Article 10(3)(a))
to the moment when the national authority officially recognizes the refugee
status of the person concerned would compromise the effectiveness of that
provision, since its application would depend on the speed with which the
application for international protection was processed. This would run counter
to the aim of the directive, which is to facilitate family reunification and
grant special protection to refugees, in particular unaccompanied minors. It
would also violate the principles of equal treatment and legal certainty (paras
32 to 35 and case law cited).
In the light of these
considerations, the Court states that, as long as the refugee is a minor, his
or her parents may submit applications for entry and residence for the purposes
of family reunification with the refugee without being required to comply with
a time limit in order to benefit from the more favourable conditions laid down
in Article 10(3)(a) (paras 40 to 43).
Conditions required from a
minor refugee to exercise the right to family reunification
Under the third subparagraph of
Article 12(1) of the Family reunification directive, if an application for
family reunification is not lodged within three months of obtaining refugee
status, Member States may require the refugee to meet the conditions set out in
Article 7, paragraph 1, ie that they have at their disposal “accommodation
regarded as normal for a comparable family, sickness insurance for [themselves]
and the members of [their] family, and stable and regular resources which are
sufficient to maintain [themselves] and the members of [their] family” (paras
63 and 66).
As the applicants' application
for family reunification was lodged three months and one day after the
sponsor's refugee status was granted, the referring court asks whether Article
10(3)(a) of the Family reunification directive allows a Member State to require
an unaccompanied minor refugee or their parent(s) to meet the conditions laid
down in Article 12(1) in order to benefit from the right to family
reunification (para 62).
In this respect, the Court notes
that the scheme of the directive and the Union legislature have provided for
two distinct regimes. The first concerns the family reunification of any
refugee with the members of his or her nuclear family, pursuant to Article
12(1). In such cases, Member States have the option of requiring the applicant
to meet the conditions laid down in Article 7(1) if the application for family
reunification is not submitted within three months of the granting of refugee
status. Conversely, there is no such requirement where family reunification
concerns unaccompanied refugee minors with their parents (para 75).
In the Court's view, this
approach by the European Union legislature was prompted by the requirements
deriving from the Charter of Fundamental
Rights of the European Union (hereinafter "the Charter"), in
particular Article 7 concerning respect for family life, and Article 24(2) and
(3). These stipulate that in all decisions relating to children, the child's
best interests must be a primary consideration, and that it is imperative to
take into account the need for a child to maintain a personal relationship with
both parents on a regular basis (paras 76 and 77).
As noted by the Court and the
Commission, “it is practically impossible for an unaccompanied minor refugee to
have [access], for [themselves] and the members of [their] family, [to]
accommodation, sickness insurance and sufficient resources […] Likewise, it is
extremely difficult for the parents of such a minor to meet those conditions
before even having joined their child in the Member State concerned” (para 77).
In the Court's view, imposing
compliance with the conditions laid down in Article 7(1) as a precondition for
family reunification of unaccompanied refugee minors with their parents would
effectively be tantamount to depriving those minors of their right to such
reunification, in breach of the provisions of Article 7 and paragraphs 2 and 3
of Article 24 of the Charter (para 77).
Finally, in view of the
exceptional circumstances of the case in the main proceedings, “the Member
State concerned also cannot require RI or his parents to meet the conditions
laid down in Article 7(1) of that directive with regard to the minor refugee’s
sister” (para 79).
Granting a residence permit to
the adult sister of an unaccompanied minor refugee
What really distinguishes the present
case is the Court's recognition of an obligation to grant a residence permit to
the adult sister of an unaccompanied minor refugee.
The circumstances of the case are
undeniably exceptional: TY, currently residing in Syria with her parents,
suffers from cerebral palsy, requiring the use of a wheelchair as well as daily
personal care administered by her mother, including assistance with feeding. As
TY would not be able to receive this essential care from another family member,
her parents cannot leave her alone in Syria (paras 23 and 55).
Therefore, the referring court
asks the Court whether it is necessary to grant a residence permit to the adult
sister of an unaccompanied minor refugee under Article 10(3)(a) of the Family
reunification directive, given that a refusal could result in the deprivation
of the right to family reunification between the refugee and his or her parents
provided for in that article (para 46). Alternatively, the referring court
notes that a residence permit could possibly be granted to the sponsor's adult
sister "for compelling reasons relating to private and family life, within
the meaning of Article 8 of the [Convention for
the Protection of Human Rights and Fundamental Freedoms - hereinafter the
"ECHR"]" under Austrian law. Nevertheless, insofar as the right
to a residence permit deriving directly from Union law might offer more
extensive protection than that conferred by Article 8 of the ECHR, it must be
determined whether the applicant's sister is entitled to rely on it (para 25).
As a preliminary point, in line
with its previous case law (**)(***), the Court recalls that, in accordance
with Article 51(1) of the Charter, Member States must respect the rights and
observe the principles laid down therein when implementing Union law, while at
the same time encouraging its application. Consequently, Member States have a
positive obligation “must not only interpret their national law in a manner
consistent with EU law but also make sure they do not rely on an interpretation
of an instrument of secondary legislation which would be in conflict with the
fundamental rights protected by the legal order of the European Union” (para
48). Consequently, the provisions of the Family reunification directive must be
interpreted and applied in conjunction with the aforementioned Article 7 and
paragraphs 2 and 3 of Article 24 of the Charter (paras 49-50).
It follows from the foregoing
that Article 10(3)(a) confers increased protection on unaccompanied minor
refugees on account of their particular vulnerability. Consequently, referring
to its previous case law, the Court stresses that this article requires Member
States to authorize family reunification of the applicant's first-degree
relatives in the direct ascending line, without any margin of discretion being
available (paras 51-52).
Therefore, in view of the
exceptional circumstances of the present case, the effectiveness of the right
to family reunification of a refugee minor with their parents requires that a
residence permit also be granted to his adult sister who is totally and
permanently dependent on the assistance of their parents (paras 57-58).
Conclusion
The political climate and the
complexity of the negotiations that led to the adoption of the Family
reunification directive remain the main reasons why the legislator did not
review its content, freezing the protection of family reunification to
conditions negotiated over twenty years ago (****). On the other hand, as the
Charter is a living instrument to be interpreted in the light of current living
conditions, the Court's approach of placing its articles at the heart of its
examination of the implementation of Union law is of fundamental importance. In
this judgment, the Court's interpretation of the principle of effet utile
is rooted in the protection of human rights and places the rights of refugee
minors at the heart of its thinking.
Ultimately, this judgment helps
to give full effect to the right to family reunification for unaccompanied
minors, both in terms of procedural rules and conditions, and in terms of its
application - to guarantee reunification with parents - to a family member not
explicitly covered by Article 10(3)(a) of the Family reunification directive.
In view of the exceptional
circumstances of this case, the Court's ruling has no immediate impact on the
definition of family members eligible for family reunification with an
unaccompanied minor. However, this judgment is part of the Court's search for a
fair balance between the need to meet the conditions for family reunification
and respect for the unconditional nature of the rights of individuals
guaranteed by the above-mentioned directive and might have important
repercussions to future rulings.
For example. by analogy, it would
be conceivable to apply the Court's reasoning to the recognition of an
obligation to grant a residence permit to other family members where this would
be the only means of enabling an unaccompanied minor sponsor to exercise their
right to family reunification with his or her parents.
Going even further, a similar
approach could be considered for two other articles of the Family reunification
directive that impose a positive obligation on Member States:
Article 4 (1)
which “imposes precise positive obligations, with corresponding clearly defined
individual rights, on the Member States, since it requires them, in the cases
determined by the Directive, to authorise family reunification of certain
members [of the nuclear family] of the sponsor's family, without being left a
margin of appreciation” (*****) and
Article 17 on
the obligation for member States to “make a balanced and reasonable assessment
of all the interests in play, both when implementing the [Family reunification
directive] and when examining applications for family reunification” (*****).
In situations where the sponsor’s
reunification with their nuclear family would be impossible due to the
particular hardship this separation would cause to other members of the family
remaining in the country of origin, and in particular where the sponsor’s
specific vulnerabilities (including being a refugee and/or unaccompanied minor)
warrant the right to family reunification under Article 4 (1), I believe and
hope for the Court’s reasoning in the present case might apply in the same way.
Paradoxically, unfortunately, exceptional situations of great gravity such as
the one in the present case are not so exceptional for refugees.
Given the current political
paralysis in this area, it is likely that future developments concerning the
right to family reunification will be based on the Court's case law, which will
- as in this judgment - pave the way for the legislator.
In the meantime, since the “proliferation
of cases” dealt with by the Court since the 2014
Commission guidance for application of the directive, a second guidance note
would be warranted: “it would probably be useful for the Commission to produce
a communication on Directive 2003/86 restating the Court’s case law. After 20
years, a simple and clear résumé of how the Court interprets the Directive
could lead to greater legal certainty and uniform application of the Directive at
the national level and, more importantly, it could also help many individuals
better secure their rights under the Charter” (******).
(*) On the history, application
and previous case law of the Court concerning Directive 2003/86/EC, see: E.
Tsourdi, and P. De Bruycker, eds. Research Handbook on EU Migration and Asylum
Law, Edward Elgar Publishing, 2022, especially chapters:
E. Tsourdi, and P. De Bruycker, The
evolving EU asylum and migration law, Research handbook on EU migration and
asylum law, Edward Elgar Publishing, 2022, pp. 1-55 and
G. Kees and T. Strik, Directive
2003/86 on the Right to Family Reunification: a surprising anchor in a
sensitive field, Research Handbook on EU Migration and Asylum Law, Edward Elgar
Publishing, 2022, pp. 306-326.
(**) See ruling of July 16, 2020,
État belge (Regroupement familial - Enfant mineur), Joined Cases C-133/19,
C-136/19 and C-137/19, ECLI:EU:C:2020:577, paragraph 33 and previous case law.
(***) It is worth noting that the
commented ruling as well as several previous rulings from the Court of Justice
that have had a decisive impact on the right to family reunification and, more
specifically, the rights of unaccompanied minors, share the same rapporteur: L.
S. Rossi. e.g:
État belge (Family
reunification – Minor child), C‑133/19, C‑136/19 and C‑137/19,
EU:C:2020:577
Bundesrepublik Deutschland
(Family reunification with a minor refugee), C‑273/20 and C‑355/20,
EU:C:2022:617
Bundesrepublik Deutschland
(Family reunification of a child who has reached the age of majority) (C‑279/20,
EU:C:2022:618)
(****) This is not insignificant,
given that the other instruments relating to migration and protection have been
revised, sometimes several times, since they were first adopted. In particular,
as noted by . E. Tsourdi and P. De Bruycker, the "New Pact on Migration
and Asylum" presented in 2020 does not propose to amend the Family
Reunification Directive. E. Tsourdi, and P. De Bruycker, The evolving EU asylum
and migration law, Research handbook on EU migration and asylum law, Edward
Elgar Publishing, 2022, p. 50.
(*****) See com(2014)210 final,
Communication from the Commission to the European Parliament and the Council on
guidance for application of Directive 2003/86/ec on the right to family reunification,
pp. 5 and 28.
(******) See: L. S. Rossi, The interaction between the directive 2003/86 and the Charter of fundamental rights of the European Union in the family reunification of a third country national, Freedom, security & justice: European legal studies: 1, 2024, p. 37.
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