Court of Justice of the European Communities (including Court of First Instance Decisions)

Case C‑519/18

TB

v

Bevándorlási és Menekültügyi Hivatal

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság)

 Judgment of the Court (Fifth Chamber), 12 December 2019

(Reference for a preliminary ruling — Immigration policy — Right to family reunification — Directive 2003/86/EC — Article 10(2) — Optional provision — Prerequisites for exercising the right to family reunification — Member of a refugee’s family not referred to in Article 4 — Concept of a ‘dependant’)

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law made directly and unconditionally applicable by national legislation to situations falling outside their scope — Included — Condition — Need for the national court to indicate that such a reference exists — No such indication

(Art. 267 TFEU; Council Directive 2003/86, Arts 4(2) and (3), and 10)

(see paragraphs 29-32)

2.        Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Family reunification of refugees — Extension of the personal scope of that directive to certain family members dependent on the refugee — Significant latitude of the Member States in giving effect to that option — Scope — National legislation laying down additional requirements relating to the nature of the relationship of dependence between the refugee and his or her family member — Whether permissible — Conditions

(Council Directive 2003/86, Art. 10(2))

(see paragraphs 36-40, 55, 56, 61, 62, 67, 72-75, 77 and operative part)

3.        Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Family reunification of refugees — Extension of the personal scope of that directive to certain family members dependent on the refugee — Significant latitude of the Member States in giving effect to that option — Limit — Whether the condition of dependence between the refugee and his or her family member is fulfilled

(Council Directive 2003/86, Art. 10(2))

(see paragraphs 41, 42)

4.        EU law — Interpretation — Provision containing no express reference to the law of Member States — Independent and uniform interpretation — Whether applicable to the concept of ‘family member dependent on the refugee’ within the meaning of Directive 2003/86

(Council Directive 2003/86, Art. 10(2))

(see paragraphs 44, 45)

5.        Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Family reunification of refugees — Concept of ‘family member dependent on the refugee’

(Council Directive 2003/86, Art. 10(2))

(see paragraphs 46, 49-52)

Résumé

The Court has clarified the possibility for Member States to confer a right of family reunification on certain members of a refugee’s family, and also the conditions to which such a right is or may be made subject

In the judgment Bevándorlási és Menekültügyi Hivatal (Family reunification — Sister of a refugee) (C‑519/18), delivered on 12 December 2019, the Court held that a Member State may, in order to authorise the family reunification of a refugee’s sister, require her to be unable to provide for her own needs on account of her state of health. However, that inability must be assessed having regard to the special situation of refugees and at the end of a case-by-case examination. In addition, such family reunification may be authorised only if it is ascertained, in the same way, that the material support of the person concerned is actually provided by the refugee, or that the refugee appears as the most able to provide that support.

In the case in the main proceedings, the sister of an Iranian national, that national having obtained refugee status in Hungary, had applied for a residence permit for the purposes of family reunification. Although the refugee’s sister suffered from depression which required regular medical supervision, her application had been refused on the ground, in particular, that she had not demonstrated that she was unable to provide for her own needs on account of her state of health, a prerequisite under the Hungarian legislation.

Asked whether that legislation was compatible with Directive 2003/86, (1) the Court found, first of all, that as regards refugees, more favourable conditions are provided for in order to exercise the right to family reunification. In particular, Member States may choose to confer that right on members of a refugee’s family, such as siblings, who are not expressly listed in Directive 2003/86 as having to be, or being capable of being, granted such a right. The Court then emphasised the Member States’ significant latitude both to decide to give effect to that extension of the personal scope of the directive and to determine the family members concerned.

That latitude is, however, limited by the obligation to ensure that the family member concerned is ‘dependent’ on the refugee. The Court stated that the meaning to be given to that condition, expressly laid down by Directive 2003/86, must ensure an independent and uniform interpretation throughout the European Union. In that respect, regard must be had to the clarification already provided by the Court regarding a comparable condition in the context of Directive 2004/38, (2) while taking into account the special nature of the situation of refugees. In that regard, the Court found that a refugee cannot be automatically required to provide, as at the date of the application for family reunification, material support for the member of his or her family. The refugee may indeed have been faced with the physical impossibility of supplying the necessary funds or the fear of endangering his or her family if he or she contacted them. Consequently, the Court finds that, in order for a refugee’s family member to be considered dependent on the refugee, two criteria must be met. First, the family member must not be in a position to support himself or herself, having regard to his or her financial and social conditions, and that must be the case as at the date on which he or she seeks to rejoin the refugee. Secondly, it must be ascertained that the family member’s material support is actually provided by the refugee, or that, having regard to all the relevant circumstances, such as the degree of relationship of the family member with the refugee, the nature and solidity of the family member’s other family relationships and the age and financial situation of his or her other relatives, the refugee appears as the most able to provide that material support.

The Court also stated that, having regard to their latitude in the matter, Member States may lay down additional requirements relating to the nature of the relationship of dependence between the refugee and his or her family members concerned. Member States may, in particular, require those family members to be dependent on the refugee on certain precise grounds, such as their state of health. That possibility is, however, qualified in two respects. First, such national legislation must observe both the fundamental rights, enshrined in the Charter of Fundamental Rights of the European Union, and the principle of proportionality. Secondly, the competent national authorities are required to carry out an examination on a case-by-case basis of the application for family reunification and of the condition that the family member must be dependent on the refugee, taking into account all the relevant factors. In addition, the national authorities must take account of the fact that the extent of needs can vary greatly depending on the individual, and also of the special situation of refugees, in particular in the light of the difficulty in obtaining evidence in their countries of origin.

1      Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

2      Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

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