Hope is like the sun: Court of Justice ruling extends right to family reunification for refugee minors

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.