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. 

The effectiveness of the right to family reunion of refugees: An analysis of the K. & B. ruling of the CJEU

Mark Klaassen, Assistant professor at the Institute of Immigration Law at Leiden University

Introduction

For most EU Member States (the UK, Ireland and Denmark have opted out), family reunion between non-EU citizens residing on their territory and their non-EU citizen family members living abroad is governed by Directive 2003/86. This Directive includes a more favourable regime for refugees seeking family reunion, which Member States may limit to family relationships which predate entry to the Member State. These exceptions include the waiver of 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”; 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. 

However, Member States may limit the application of this more favourable regime as regards the waiver of the conditions relating to accommodation, sickness insurance and stable and regular resources if the sponsor or family members have “special links” with a non-EU country where family reunion is possible, or if the application for family reunification was lodged within a period of three months after refugee status has been granted. This latter competence is laid down in the last sub-paragraph of Article 12(1) of the Directive.

But how must the Member States deal with applications for family reunification by beneficiaries of international protection which are lodged after this three months period? This is essentially the question in Case C-380/17 K. & B., that was submitted to the Court of Justice of the EU (the Court) for a preliminary ruling by the Council of State – the Dutch court of highest instance in immigration matters.

In this blog I will first sketch the implementation of Article 12(1) of the Directive in the Netherlands. Then I will discuss the cases that have led to the preliminary reference. After that I will summarise the ruling of the Court. Finally I will discuss the implications of the ruling for the family reunification of refugees. Note that the judgment also confirmed the Court’s jurisdiction to interpret the Directive for the family reunion of persons with subsidiary protection in the Netherlands, even though they are excluded from the scope of the Directive, because the Netherlands has chosen to apply the Directive to them in the same way as refugees. I will not elaborate on the jurisdiction issue further.

Family reunification of refugees in the Netherlands

In the Netherlands there is a one-status system, meaning that no distinction is made between refugee status and subsidiary protection status. This has implications for the implementation of the Directive. Beneficiaries of subsidiary protection are excluded from the Directive. However, as no distinction between refugees and beneficiaries of subsidiary protection is made in Dutch asylum law, all beneficiaries of international protection are eligible for family reunification pursuant to the implementation of the Directive. From the moment that international protection is granted, the sponsor has three months to make the application for family reunification of family members that were left behind in the country of origin. In case the application is made within this three month period, no substantive requirements for family reunification are imposed, as is required by Article 12(1) Directive. Also, no administrative fee is charged for making the application.

When the application is made after the three months period has passed, the application is rejected. Only in very exceptional circumstances is an application lodged outside of the three months period accepted – even though there is no legal basis for that in Dutch law. In making the determination whether such special circumstances apply, the Dutch authorities neither take the best interests of the child (Article 5(5) Directive) nor the specific individual circumstances of the case (Article 17 Directive) into account. A sponsor with international protection status is eligible to submit a “regular” application for family reunification outside the three month period. In regular applications, the substantive requirements – which are based on Article 7(1) of the Directive – are fully applicable.

The applicants in K. and B.

Applicant K. is the Afghan mother of an unaccompanied minor in the Netherlands. The minor sponsor has been granted international protection in the Netherlands on 14 February 2012. As an unaccompanied minor, the legal guardian was assigned to the sponsor. The sponsor applied to be reunited with his mother on 27 November 2013. From the order of reference, it appears that his legal guardian did not inform the applicant of the possibility to apply for family reunion. The application was rejected because it was not made within the three month period after being granted international protection.

An appeal was lodged with the District Court of Zwolle, which ruled in favour of the applicant. Referring to the best interests of the child as laid down in Article 3(1) of the UN Convention on the Rights of the Child and the case law of the European Court of Human Rights on Article 8 ECHR (the right to private and family life), the District Court held that the Secretary was bound to make an individual assessment of the competing interests involved in the case. The Secretary appealed the decision of the District Court to the Council of State, which is the referring court in this case. In the order of reference to the Court, the Council of State blames the sponsor – who was fifteen years old on the moment the application was lodged – for not informing himself of the three months’ period in which the application for family reunification must be made. The Council of State deems that it was reasonable to attribute the lack of information provided by the legal guardian to the minor sponsor.

Applicant B. is the baby daughter of an Eritrean national who was granted international protection in the Netherlands on 23 September 2014. The sponsor applied to be reunited with his wife and baby daughter on 22 January 2015. The application was lodged one month after the three month period had elapsed. The applicant appealed the rejection of his application to the District Court of Amsterdam. His appeal was rejected on 24 June 2016, upon which he lodged a subsequent appeal to the Council of State. The reason for the late submission of the application was a misunderstanding between the sponsor and the Dutch Refugee Council, which has a formalised role in assisting beneficiaries of international protection in making an application for family reunification. He misinterpreted a conversation with the Dutch Refugee Council. In the order for reference to the Court, the Council of State attributes the misunderstanding to the applicant.

These two cases are no exceptions. In 2014 the Advisory Committee on Migrations Affairs – an independent Committee that advises the Dutch Government and Parliament on immigration law and policy – expressed the view that the absolute character of the three months’ period is problematic. The Committee held that it is important that beneficiaries of international protection are swiftly reunited with their family members, also in view of the integration in Dutch society. The Committee advised the Dutch government to proactively ask each beneficiary of international protection whether they want to apply for family reunion and to introduce a hardship clause for situations in which an application is made outside the three months’ period.

The ruling of the Court

The Court rules that the EU legislature has explicitly allowed the Member States to apply the conditions from Article 7(1) Directive to refugees who apply for family reunification after the time limit from Article 12(1) has elapsed (para 46). Based on that, the Member States are allowed not to process applications made after the three months’ period has elapsed under the more favourable rules for refugees but under the general rules instead (para. 47).

According to the Court, the EU legislature did not regulate on the procedure to be followed regarding out of time applications (para. 55). Therefore, the principle of procedural autonomy applies, which is limited by the general principles of equivalence and effectiveness (para. 56). The latter principle requires that the national procedure may not render the rights conferred by the Directive impossible in practice or excessively difficult. Concerning the application of the three month period, the Court finds that rejecting an application for not being made within the three month period does not per se render the exercise of the right to family reunification impossible in practice or excessively difficult when a fresh application can be lodged in which the conditions of Article 7(1) are applicable (para. 59). In this manner, the right to family reunification can still be safeguarded (para. 60). The Court notes that this is not the case in situations in which the late submission of the application is objectively excusable (para. 62).

In this regard, the Member States must fully inform the applicant of the consequences of rejecting the application for non-compliance with the three month period. Besides that, the Member State must inform the applicant how the right to family reunification can nevertheless be effectively realised (para. 63). The Court concludes by remarking that even though the Member States are allowed to impose the requirements of Article 7(1) Directive in case an application is lodged after the three months’ period has elapsed, the other provisions of the Chapter on family reunification of refugees still apply (para. 64-65).

Analysis: A pyrrhic victory for the Dutch government?

The ruling of the Court means that the distinction that is made in Dutch immigration law between the family reunification of beneficiaries of international protection and “regular” family reunification can be maintained. However, in the application of the “regular” family reunification regime, the fact that a sponsor has been granted international protection must be taken into account (para. 53). In the refugee family reunification procedure, there must be a codification of the requirement to not apply the three months’ period in cases in which it was objectively excusable that the application was lodged out of time.

This is the second ruling of the Court on family reunification of refugees in the Netherlands. In the A. & S. judgment (discussed here), the Court held that an unaccompanied minor who is considered a minor on the moment that he lodged the application for international protection has the right to family reunification with family members that were left behind in the country of origin. Essentially that case also considered the procedural autonomy of the Member States to regulate where the Directive does not provide for procedural rules. The Court held that to make the right to family reunification dependent on the moment on which the domestic authorities grant international protection would call the effectiveness of the protection provided for by the Directive into question (A. & S., para 55).

It is also in line with the interpretation of the Court with other provisions of the Directive. In Chakroun, the Court held that the competence of the Member State to require the sponsor to demonstrate stable, regular and sufficient resources may not be used in a manner which would undermine the effectiveness of the right to family reunification (Chakroun, para. 43). The Court confirmed this position in O., S. & L., in which the Court strongly emphasised the role of fundamental rights in determining the competence of the member states in imposing the requirement of stable, regular and sufficient resources (O., S. & L., para. 80). In that case, the Court held that “[i]t is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned. (para. 81)”  

The K. & B. judgment has demonstrated that even when an application was made outside the three month period laid down in Article 12(1) Directive, the effectiveness of the right to family reunification of a person with international protection may not be undermined by the application of the conditions of Article 7(1) Directive. This conclusion might sound obvious, but nevertheless has far-reaching implications.

To what extent can it be expected from the applicants in this case to comply with the stable and regular sufficient resources requirement? In order to answer this question, it is interesting to take a look at the drafting history of the Directive. In the initial proposal of the European Commission, refugees were always exempted from the substantive conditions, as “[r]efugees and persons enjoying subsidiary protection, given the overriding reasons why they have had to flee their country of origin and cannot lead a normal family life, cannot be subjected to the same additional conditions without their right lead a family life being imperilled” COM/1999/638 final. Even though the EU’s qualification Directive gives them a right to seek employment, beneficiaries of international protection start with an enormous backlog on the labour market, so requiring them to comply with the requirement of stable and regular sufficient resources could undermine the effectiveness of the right to family reunification. In this context, the reasoning of the Court in O., S. & L. that “a balanced and reasonable assessment of all the interests in play” must be conducted, is of utmost importance.

It must be noted that this assessment is different from the balancing of interests under the ECtHR case law on Article 8 ECHR, as the Directive grants a subjective right to family reunification. The question which must be assessed it whether imposing the stable and regular sufficient resources requirement would undermine the effectiveness of the Directive. The question is not (as under the ECtHR case law) whether a fair balance has been struck between the individual interest and the interests of the state to control immigration.

Lastly, as noted above, Article 12(1) allows the Member States to impose the conditions of Article 7(1) in case an application is lodged after the three month period has elapsed. This does not include the requirement to comply with integration measures from Article 7(2) Directive. This means that refugees can never be subjected to the requirement to pass a pre-entry integration exam in the country of origin, also in cases in which the application is lodged outside the three month period.

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo credit: AP/Boris Grdanoski

Childhood’s End? The Court of Justice upholds unaccompanied child refugees’ right to family reunion

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 judgment

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.

Comments

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

The UK implements EU free movement law – in the style of Franz Kafka

 

Steve Peers

Most laws are complicated enough to start with, but with EU Directives there is an extra complication – the obligation to transpose them into national law. A case study in poor transposition is the UK’s implementation of the EU’s citizens’ Directive, which regulates many aspects of the movement of EU citizens and their family members between EU Member States. Unfortunately, that defective implementation is exacerbated by a further gap between the wording of this national law and its apparent application in practice, and by the unwillingness of the EU Commission to sue the UK (or other Member States) even for the most obvious breaches of the law.

It’s left to private individuals, who usually have limited means, to spend considerable time and money challenging the UK government in the national courts. One such case was the recent victory in McCarthy (discussed here), concerning short-term visits to the UK by EU citizens (including UK citizens living elsewhere in the EU) with third-country (ie, non-EU) family members.  The UK government has just amended the national rules implementing the EU citizens’ Directive (the ‘EEA Regulations’) to give effect to that judgment – but it has neglected to amend the rules relating to another important free movement issue.

Implementing the McCarthy judgment

The citizens’ Directive provides that if EU citizens want to visit another Member State for a period of up to three months, they can do so with very few formalities. However, if those EU citizens are joined by a third-country family member, it’s possible that this family member will have to obtain a short-term visa for the purposes of the visit. The issue of who needs a short-term visa and who doesn’t is mostly left to national law in the case of people visiting the UK and Ireland, but it’s mostly fully harmonised as regards people visiting all the other Member States.

Although the EU’s citizens’ Directive does simplify the process of those family members obtaining a visa, it’s still a complication, and so the Directive goes further to facilitate free movement, by abolishing the visa requirement entirely in some cases. It provides that no visa can be demanded where the third-country family members have a ‘residence card’ issued by another EU Member State. According to the Directive, those residence cards have to be issued whenever an EU citizen with a third-country family member goes to live in another Member State – for instance, where a British man moves to Germany with his Indian wife. Conversely, though, they are not issued where an EU citizen has not left her own Member State – for instance, a British woman still living in the UK with her American wife.

How did the UK implement these rules? The main source of implementation is the EEA Regulations, which were first adopted in 2006, in order to give effect to the citizens’ Directive by the deadline of 30 April that year. Regulation 11 of these Regulation states that non-EU family members of EU citizens must be admitted to the UK if they have a passport, as well as an ‘EEA family permit, a residence card or a permanent residence card’. A residence card and permanent residence card are creations of the EU Directive, but an ‘EEA family permit’ is a creature of UK law.

While the wording of the Regulation appears to say that non-EU family members of EU citizens have a right of admission if they hold any of these three documents, the UK practice is more restrictive than the wording suggests. In practice, having a residence card was usually not enough to exempt those family members from a visa requirement to visit the UK, unless they also held an EEA family permit. Regulation 12 (in its current form) says that the family member is entitled to an EEA family permit if they are either travelling to the UK or will be joining or accompanying an EU citizen there. In practice, the family permit is issued by UK consulates upon application, for renewable periods of six months. In many ways, it works in the same way as a visa requirement.

An amendment to the Regulations in 2013 provided that a person with a ‘qualifying EEA State residence card’ did not need a visa to visit the UK. But only residence cards issued by Germany and Estonia met this definition. This distinction was made because the UK was worried that some residence cards were issued without sufficient checks or safeguards for forgery, but Germany and Estonia had developed biometric cards that were less likely to be forged.

In the McCarthy judgment, the CJEU ruled that the UK rules breached the EU Directive, which provides for no such thing as an EEA family permit as a condition for admission of non-EU family members of EU citizens with residence cards to the territory of a Member State. The UK waited nearly three months after the judgment to amend the EEA Regulations to give effect to it.

The new amendments cover many issues, but to implement McCarthy they simply redefine a ‘qualifying EEA State residence card’ to include a residence card issued by any EU Member State, as well as any residence card issued by the broader group of countries applying the EEA treaty; this extends the rule to cards issued by Norway, Iceland and Liechtenstein. Presumably this brings the rules into compliance with EU law on this point (the new rules apply from April 6th). That means that non-EU family members of EU citizens will not need a visa to visit the UK from this point, provided that they hold a residence card issued in accordance with EU law, because they are the non-EU family member of an EU citizen who has moved to another Member State. However, this depends also on the practice of interpretation of the rules, including the guidance given to airline staff.

‘Surinder Singh’ cases

On the other hand, the new Regulations do not implement other recent CJEU case law (discussed here) on what is known in the UK as the ‘Surinder Singh’ route. This is based on CJEU rulings which state that an EU citizen who moves to another Member State with non-EU family members can then return to his or her home Member State and invoke EU free movement law to ensure that this State admits his or her family members. The purpose of doing this is to avoid very restrictive rules on the admission of family members of British citizens into the UK, which are much more stringent than the EU free movement rules (Danish and Dutch citizens also use these rules).

The 2013 amendments to the Regulations state that this route can only be used where the ‘centre of life’ of the family concerned has shifted to another Member State. This is inconsistent with last year’s CJEU ruling, which requires only a three-month move to another Member State to trigger the rules. In practice, this test is then applied before an ‘EEA family permit’ is issued to the family member concerned, which allows that family member to reside in the UK with the UK citizen.

Since these parts of the Regulations have not been amended, and there is still provision for an ‘EEA family permit’ in the Regulations, presumably the intention is to continue to apply these rules to regulate the longer-term stay of UK citizens’ family members using the Surinder Singh route.

Conclusion

The better course from the outset for the UK would have been to avoid the creation of the ‘EEA family permit’, which is not provided for in any EU legislation or hinted at in any CJEU case law. Furthermore, not only do the UK rules not implement EU law correctly, they also are not applied in practice exactly as they are written, but on the basis of a general unwritten understanding about what they actually mean. This doesn’t even deserve to be called a ‘policy’. Instead, the best description comes from Yes, Minister: it’s the ‘policy of the administration of policy’.  

 

Barnard & Peers: chapter 13