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

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 16 December 2021(1)

Case C‑279/20

Bundesrepublik Deutschland (Family reunification of a child who has reached the age of majority)

v

XC,

joined parties:

Landkreis Cloppenburg

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

(Reference for a preliminary ruling – Right to family reunification – Directive 2003/86/EC – Point (c) of the first subparagraph of Article 4(1) – Right of a refugee to family reunification with his or her minor children – Child below the age of 18 at the time of parent’s application for asylum, but over 18 at the time parent granted asylum and a temporary resident permit as a refugee – Relevant date for assessing ‘minor’ status of person concerned – Article 16(1)(b) – Penalties and redress – Concept of real ‘family relationship’)

I.      Introduction

1.        At what point in time is the status of a minor child of a refugee to be determined for the purposes of exercising the right to family reunification afforded by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification? (2) Where a minor child who seeks to join his or her sponsor was living in a third state and has attained his or her majority, what requirements may be imposed to ascertain the existence of a real family relationship for the purposes of Article 16(1)(b) of that directive? By its request for a preliminary ruling of 23 April 2020, lodged at the Registry of the Court of Justice on 26 June 2020, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) seeks answers to those questions.

II.    Legal framework

A.      EU law

Directive 2003/86

2.        Article 3(2) of Directive 2003/86 provides:

‘This Directive shall not apply where the sponsor is:

(a)      applying for recognition of refugee status whose application has not yet given rise to a final decision;

…’

3.        Article 4 of Directive 2003/86 provides:

‘1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:

…

(c)      the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement;

…’

4.        Article 16 of Directive 2003/86 provides:

‘1. Member States may reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a family member’s residence permit, in the following circumstances:

…

(b)      where the sponsor and his/her family member(s) do not or no longer live in a real marital or family relationship;

…’

B.      German law

5.        According to the referring court, under German law, the preconditions to the right to family reunification are determined when an application for a national visa for the purposes of family reunification is submitted by a relative to the diplomatic mission in the third country in which he or she resides.

6.        Paragraph 6 of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory) of 25 February 2008, (3) most recently amended by Article 4b of the Act of 17 February 2020 (4) (‘the AufenthG’), entitled ‘Visas’, provides that:

‘…

(3) For long-term stays a visa for Federal German territory is required (national visa), which must be granted before entry. The issue of a visa is governed by the provisions applicable to residence permits, EU Blue Cards, ICT cards, authorisations for establishment and permits for permanent residence in the European Union. …’

7.        Paragraph 32 of the AufenthG entitled ‘Subsequent immigration of children’ provides:

‘(1) The minor, unmarried child of a foreigner is to be granted a temporary residence permit if the parents or the parent having the sole right of care and custody hold(s) one of the following residence titles:

…

2. a temporary residence permit in accordance with Paragraph 25(1) or (2), first sentence, first alternative

…’

8.        Paragraph 25 of the AufenthG entitled ‘Residence on humanitarian grounds’ provides:

‘…

(2) A foreigner is to be granted a temporary residence permit if the Federal Office for Migration and Refugees has granted him or her refugee status within the meaning of Paragraph 3(1) of the Asylgesetz [(German Asylum Law)] or subsidiary protection status within the meaning of Paragraph 4(1) of the German Asylum Law. …’

III. The facts of the main proceedings and the questions referred for a preliminary ruling

9.        XC (also referred to as ‘the applicant’) is a Syrian national, born on 1 January 1999. She has lived in Turkey for several years.

10.      Her mother is deceased. Her father entered Germany in 2015 and formally applied for asylum in April 2016. The Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany) granted him refugee status in July 2017. In September of that year, the Landkreis Cloppenburg (Rural District of Cloppenburg, Germany) granted the applicant’s father a three-year temporary residence permit pursuant to Paragraph 25(2) of the AufenthG.

11.      On 10 August 2017, the applicant applied to the General Consulate of the Federal Republic of Germany in Istanbul, Turkey (‘the General Consulate’) for a national visa for the purpose of the subsequent immigration of dependants in order to join her father who was living in Germany. By decision of 11 December 2017, the General Consulate rejected her application and her appeal against that refusal. The General Consulate considered that the requirements of Paragraph 32 of the AufenthG had not been met since the applicant was an adult. Moreover, at the time she attained her majority her father had not yet received a temporary residence permit as a refugee. According to the General Consulate, although the subsequent immigration of children who have attained their majority may, in the event of unusual hardship, be facilitated by a discretionary decision in accordance with Paragraph 36(2) of the AufenthG, there was no such unusual hardship in this case since there was nothing to suggest the applicant was unable to live an independent life in Turkey.

12.      By judgment of 12 March 2019, the Verwaltungsgericht (Administrative Court, Germany) ordered the Bundesrepublik Deutschland (Federal Republic of Germany) (‘the defendant’) to grant the applicant a visa for the purpose of the subsequent immigration of dependants.

13.      The Verwaltungsgericht (Administrative Court) considered that the applicant must be regarded as a minor within the meaning of Paragraph 32(1) of the AufenthG as interpreted in the light of EU law. According to that court, the point in time for determining the status of a minor is the date on which the applicant’s father applied for asylum and not the date on which she applied for a visa for the purpose of the subsequent immigration of dependants. It considered that the judgment of the Court of 12 April 2018, A and S (5) applied to the reverse factual situation that arose before it, namely the subsequent immigration of a child to join a parent who is a refugee. In the light of that judgment, the Verwaltungsgericht (Administrative Court) interpreted point (b) of the first subparagraph of Article 4(1) of Directive 2003/86 to mean that a child of the sponsor must be regarded as a minor if he or she was a minor at the time the sponsor had applied for asylum. It further observed that the recognition of refugee status is a declaratory act. The practical effectiveness of the right to family reunification would be undermined and the principles of legal certainty and equal treatment infringed if the relevant point in time for determining the status of a minor, for the purposes of point (b) of the first subparagraph of Article 4(1) of Directive 2003/86, was the date on which the visa application was made. The Verwaltungsgericht (Administrative Court) also observed that the applicant had submitted her visa application within three months of the recognition of the sponsor’s status as a refugee, as the Court had required in the A and S judgment.

14.      In its appeal on a point of law before the referring court, the defendant claims that the Verwaltungsgericht (Administrative Court) misinterpreted the time at which the status of a minor is to be ascertained for the purposes of Paragraph 32(1) of the AufenthG. According to national case-law, the relevant point in time is the date on which the visa application for the purposes of family reunification was made. The defendant considers that the A and S judgment was based on different circumstances and on a different legal basis in Directive 2003/86. The defendant further submits that the analysis of Article 2(f) of Directive 2003/86 in the A and S judgment does not apply to point (b) of the first subparagraph of Article 4(1) of that directive as the latter provision makes express reference to the law of the Member States.

15.      According to the Bundesverwaltungsgericht (Federal Administrative Court) under national law the applicant is not entitled to a visa for the purpose of subsequent immigration of dependants to join her father. (6) In order to obtain such a visa she must show that she can rely directly on point (c) of the first subparagraph of Article 4(1) of Directive 2003/86. The referring court thus asks whether Article 4(1) of Directive 2003/86 is to be interpreted in the light of the A and S judgment, which was based on Article 2(f) of Directive 2003/86, read in combination with Article 10(3)(a) thereof. In particular, it seeks to ascertain whether, in the light of that judgment, for the purposes of family reunification to join a person with refugee status, a child is a minor provided that he or she was such at the time the refugee applied for international protection. The Bundesverwaltungsgericht (Federal Administrative Court) is uncertain as to whether the decisive factor in the A and S judgment was the special protection granted to unaccompanied minors (7) or the preferential treatment of all refugees in accordance with recital 8 of Directive 2003/86 and, therefore, whether the findings in that judgment apply to the subsequent immigration of children to join an adult refugee.

16.      As regards the second question, the referring court seeks certain clarifications as to what constitutes a real family relationship for the purposes of Article 16(1)(b) of Directive 2003/86. Purely formal marital or family ties may, in themselves, not suffice to substantiate a right to family reunification since the purpose of the application for subsequent immigration is to establish a real marital or, in this case, family life in the Member State where the sponsor resides. In particular, clarification is sought as to the degree to which the intention to establish a real family relationship must be verified prior to the initial decision on family reunification and whether the fact that a child has already attained his or her majority has any bearing on that decision. In the event that minor children immigrate to join a sponsoring parent, the referring court notes that it is assumed, without additional information or investigation, that the purpose of that exercise is to (re-)establish a real family life in the Member State. Does such an ‘automated procedure’ also apply to children who have already attained their majority at the time when the decision on the application for family reunification is determined but who, because the relevant time for determining minority has been brought forward, are still covered by points (b) to (d) of the first subparagraph of Article 4(1) of Directive 2003/86?

17.      In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is [point (c) of the first subparagraph of Article 4(1) of Directive 2003/86] to be interpreted as meaning that the child of a sponsor granted refugee status is a minor within the meaning of that provision even if the child was a minor at the time at which the asylum application was made by the sponsor but attained his or her majority before the sponsor was granted refugee status and before an application for family reunification was made?

(2)      If Question 1 is answered in the affirmative:

What requirements are to be imposed in terms of a real family relationship within the meaning of Article 16(1)(b) of [Directive 2003/86] in such a case?

(a)      Does the legal parent/child relationship suffice or is a real family life necessary?

(b)      If a real family life is necessary: How close must it be? For example, do occasional or regular visits suffice, must the family cohabit in a single household or must they also be part of a support unit whose members are reliant upon one another?

(c)      For the purpose of his or her subsequent immigration, must a child still in a third country who has submitted an application for family reunification to join a parent with refugee status and who has since attained his or her majority be expected following entry to (re-)establish a family life in the Member State in the manner described in Question 2(b)?’

IV.    The procedure before the Court

18.      The Italian Government and the European Commission submitted written observations.

19.      Following a decision by the President of the Court of Justice of 3 August 2020, the referring court was asked whether it wished to maintain its request for a preliminary ruling in the light of the judgment of 16 July 2020, État belge (Family reunification – Minor child) (8). By order of 8 September 2020, the referring court confirmed that it wished to maintain its request for a preliminary ruling as it considered that the aforementioned judgment did not sufficiently answer the questions raised in the present case.

20.      According to the referring court, while the État belge judgment indicated, inter alia, that point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 must be interpreted to mean that the date for the purpose of determining whether an unmarried third-country national or refugee is a minor child is that of the submission of the application for entry and residence for the purpose of family reunification for minor children, and not that of the decision on that application by the competent authorities of that Member State, that judgment did not indicate whether the Court considered that an earlier date could apply, namely that of the application for asylum, since that issue was not decisive to the outcome of that case. In its earlier A and S judgment, the Court had indicated that the date of the introduction of an asylum application by an unaccompanied minor was the relevant point in time in order to determine whether that person qualifies as a minor for the purpose of family reunification, and not the date on which the application for entry and residence had been submitted. Moreover, the Bundesverwaltungsgericht (Federal Administrative Court) stated that the État belge  judgment did not answer the second question that it had raised in the present reference for a preliminary ruling.

21.      Pursuant to Article 61(1) of the Rules of Procedure of the Court of Justice of the European Union, by decision of 11 May 2021, the Court requested the German Government to indicate in writing the relevance of the A and S judgment for the purposes of answering the first question referred for a preliminary ruling. The German Government lodged its answer to that question with the Court Registry on 21 June 2021.

22.      According to the German Government, it is the settled case-law of the referring court that the relevant date for assessing whether a child is a minor is that of the submission of a visa application. The solution adopted by the Court in the État belge  judgment is thus the same as that provided for by German law. In addition, such minor status must exist at the time the parent obtains the authorisation to reside giving rise to the right to family reunification. However, the German Government observes that, in the A and S judgment, the Court held that the status of minor was to be determined at the time the application for asylum was submitted. The fact that the children had attained their majority at a later date – even before the visa had been applied for – was, in principle, irrelevant. The German Government thus shares the view of the referring court that, in the light of the A and S and the État belge  judgments, the answer to the first question is uncertain.

V.      Consideration of the questions referred

A.      First question

23.      By its first question, the referring court asks, in essence, whether point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 (9) must be interpreted to mean that the date which determines whether the child of a sponsor granted refugee status is a minor child for the purposes of that provision is the date on which the sponsor (10) made an asylum application, (11) irrespective of whether that child subsequently attained his or her majority prior to the sponsor being granted refugee status and prior to an application for family reunification being made.

1.      Preliminary observations

24.      Article 1 of Directive 2003/86 describes the aim of that directive as being to establish the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States.

25.      It follows from recital 2 of Directive 2003/86 that measures concerning family reunification should be adopted in conformity with the obligation to protect the family and to respect family life enshrined in many instruments of international law. Moreover, it is settled case-law that Directive 2003/86 is to be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union (‘the Charter’). That is also apparent from recital 2 and Article 5(5) of that directive, which require the Member States to examine applications for family reunification in the interests of the children concerned and with a view to promoting family life. The Court has emphasised that Article 24(2) of the Charter requires that, in all actions relating to children, in particular those taken by Member States when applying Directive 2003/86, the child’s best interests are a primary consideration. (12)

26.      It is also settled case-law that Article 4(1) of Directive 2003/86 imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, since it requires them, in the cases determined by that directive, to authorise family reunification of certain members of the sponsor’s family, without being left any margin of appreciation in that regard. (13)

27.      Thus, point (c) of the first subparagraph of Article 4(1) of Directive 2003/86, which is the subject of the present request for a preliminary ruling, provides inter alia that Member States shall authorise the entry and residence of the minor children of the sponsor where the sponsor has custody and the children are dependent on him or her, subject to compliance with Chapter IV of Directive 2003/86, which imposes a number of requirements for the exercise of the right to family reunification, (14) as well as Article 16 thereof. In accordance with the second subparagraph of Article 4(1) of Directive 2003/86, the minor children must be below the age of majority set by the law of the Member State concerned and must not be married.

28.      In the État belge  judgment, the Court held that the second subparagraph of Article 4(1) of Directive 2003/86 neither specifies the point in time at which the condition with regard to the minor status of children is to be assessed, nor does it refer to the law of the Member States. Point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 is thus to be given an autonomous and uniform interpretation throughout the European Union. Member States are not free to determine the point in time at which to assess the age of the applicant for the purposes of that provision. (15)

29.      The request for a preliminary ruling makes it clear that while German law does not require a child to be a minor when the decision on the application for family reunification is made, the child must be a minor at the time when the visa application for family reunification is submitted and at the time when the parent obtains the residence permit that gives rise to the right to family reunification.

30.      Thus, under German law, XC was required to be a minor on 10 August 2017, when she applied for a visa to the General Consulate, and in September 2017, when her father obtained a residence permit pursuant to Paragraph 25(2) of the AufenthG. Given that she was born on 1 January 1999, XC was not a minor on either of those dates. XC was, however, a minor when her father formally applied for asylum in April 2016. It is only if she can rely on point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 to the effect that her status as a minor falls to be determined as of the date on which her father applied for asylum that she can succeed in the proceedings before the referring court.

31.      The said proceedings thus raise the question as to when the status as a minor of the child of an asylum seeker who was subsequently granted refugee status falls to be determined pursuant to point (c) of the first subparagraph of Article 4(1) of Directive 2003/86.

32.      In order to answer that question we must examine the relevant findings of the A and S and État belge  judgments  to which the referring court refers extensively. The written observations and the replies to questions submitted to the Court disclose a perception that those cases are, at best, based on different facts and/or legal provisions, thus giving rise to different legal outcomes, or, at worst, inconsistent.

2.      The A and S  judgment

33.      The daughter of A and S arrived as an unaccompanied minor in the Netherlands, where she applied for asylum. By the time she was granted a residence permit for persons granted asylum she had attained her majority. Within two months of being granted asylum, she submitted an application for temporary residence permits for her parents and her three minor siblings for the purposes of family reunification. The Netherlands authorities rejected her application for family reunification on the basis that she was not a minor on the date she had submitted that application.

34.      The referring court in that case sought an interpretation of Article 2(f) of Directive 2003/86, (16) which defines the concept of ‘unaccompanied minor’ used in Article 10(3)(a) of that directive. Article 10(3)(a) of Directive 2003/86 provides essentially that, if the refugee is an ‘unaccompanied minor’, the Member States shall  authorise the entry and residence for the purposes of family reunification of his or her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a) of that directive. The Court was asked, in essence, whether Article 2(f) of Directive 2003/86 must be interpreted to mean that a third-country national or stateless person who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the submission of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is, thereafter, granted asylum with retroactive effect to the date of his or her application, must be regarded as a minor for the purposes of that provision.

35.      The Court answered that question in the affirmative.

36.      After stating that as neither Article 2(f) nor Article 10(3)(a) of Directive 2003/86 refer to national law and thus fall to be given an autonomous and uniform interpretation throughout the European Union, the Court held that Article 10(3)(a) of Directive 2003/86 imposes on the Member States a precise positive obligation, to which a clearly defined right corresponds. It requires them, on the hypothesis set out in that provision, to authorise the family reunification of first-degree relatives in the ascending line of the sponsor, without any margin of discretion in the matter. (17) In addition, the Court noted that Directive 2003/86 pursues not only, in a general way, the objective of promoting family reunification and granting protection to third-country nationals, in particular minors, but also, by Article 10(3)(a) thereof, seeks specifically to provide additional protection for those refugees who are unaccompanied minors. (18) While Directive 2003/86 does not explicitly determine the point in time at which a refugee must be a minor in order to benefit from the right to family reunification referred to in Article 10(3)(a) thereof, the Court held that it follows from the objective of that provision and the absence of any reference to the national law therein that that matter cannot be left to each Member State to determine. (19)

37.      Having acknowledged that the possibility for an asylum applicant to submit a family reunification application on the basis of Directive 2003/86 is subject, in accordance with Article 3(2)(a) thereof, to the condition that his or her application for asylum has already been the object of a positive final decision, (20) the Court pointed out that the recognition of refugee status is a declaratory act (21) and that any third-country national or stateless person who has applied for international protections and fulfils the material conditions laid down by Chapter III of Directive 2011/95 has a subjective right to the recognition of that status prior to any formal decision being taken. The Court therefore considered, inter alia, that to make the right to family reunification under Article 10(3)(a) of Directive 2003/86 depend upon the moment at which the competent national authority formally adopts the decision recognising the refugee status of the person concerned and, therefore, on how quickly or slowly that authority can process the application for international protection, would call the effectiveness of that provision into question. It would not only go against the aim of that directive, which is to promote family reunification and to grant in that regard a specific protection to refugees, in particular unaccompanied minors, but also against the principles of equal treatment and legal certainty. (22)

38.      Conversely, according to the Court, taking the date on which the application for international protection was submitted by A and S’s daughter as the point of reference to assess the age of a refugee for the purposes of Article 10(3)(a) of Directive 2003/86 enables identical treatment and foreseeability to be guaranteed for all applicants who are in the same situation chronologically, by ensuring that the success of the application for family reunification depends principally upon facts attributable to the applicant and not to the administration, such as the time required to process such applications. (23) The Court thus held that, in such a situation, the application for family reunification made on the basis of Article 10(3)(a) of that directive must, in principle, be submitted within a period of three months of the date on which the minor concerned was declared to have refugee status. (24)

3.      The État belge judgment

39.      In paragraph 47 of the État belge judgment, which concerned the minor status of the children of a refugee, the Court interpreted inter alia point (c) of the first subparagraph of Article 4(1) of Directive 2003/86, the provision to which the referring court’s first question refers.

40.      In that case, the Court held that the date to which reference should be made in order to determine whether an unmarried third-country national or refugee is a minor child is that of the submission of the application for entry and residence for the purpose of family reunification for minor children, rather than the date on which that application is determined. According to the Court, it would be inconsistent with the objectives pursued by Directive 2003/86 and the requirements arising from Article 7 and Article 24(2) of the Charter to take the date on which the competent authority of the Member State decided on the application for entry and residence in the territory of that State for the purposes of family reunification in order to establish the age of the applicant for the purposes of applying point (c) of the first subparagraph of Article 4(1) of Directive 2003/86. Were it otherwise, competent national authorities and courts would not be prompted to treat applications of minors with the urgency necessary to take account of their vulnerability and could thus jeopardise the rights of those minors to family reunification. (25)

41.      It follows that the Court did not accept that the right of family reunification in respect of minor children of third-country nationals or refugees could be negated or eroded due to the lapse of time between making the application for family reunification and the decision of the competent national authorities or courts thereon. (26)

4.      Analysis and application of case-law to the facts in the main proceedings

42.      It is clear from the A and S and the État belge judgments that the Court has, in a consistent manner, ensured that the right to family reunification in relation to minor children cannot be eroded by the passage of time required to determine applications for international protection or family reunification. Moreover, in its A and S judgment, the Court emphasised the declaratory nature of a decision recognising refugee status and, notwithstanding the wording of Article 3(2)(a) of Directive 2003/86, ensured that the right to family reunification of asylum seekers who are subsequently granted refugee status are safeguarded.

43.      The judgments in question indicate, however, two different points in time at which minor status may be determined. In the A and S judgment, minor status falls to be assessed on the date of the application of the sponsor for asylum, whilst in the État belge judgment, the date of the application for family reunification was deemed appropriate.

44.      The Italian Government, in its written observations, seeks to distinguish the facts giving rise to the A and S judgment and those in the main proceedings. It places considerable emphasis on the fact that that case concerned a refugee who was an unaccompanied minor and the favourable treatment granted to such persons under Article 10(3)(a) of Directive 2003/86. That government therefore considers that the A and S judgment does not apply to the facts in the main proceedings and that the État belge judgment  does. The referring court and the German Government adopt a more nuanced approach and seek clarification of the issue from the Court.

45.      By contrast, the Commission considers that the approach adopted by the Court in the A and S judgment applies to the facts in the main proceedings, given that the child of an asylum seeker may not submit an application for family reunification on the basis of point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 until such time as the asylum seeker’s application for refugee status has already been the subject of a final positive decision. (27) In the Commission’s view, in a case such as that in the main proceedings, it would be inappropriate to rely on the date on which the application for family reunification was lodged, as that would be incompatible with the objectives of Directive 2003/86, the requirements of Article 7 and Article 24(2) of the Charter and the principles of equal treatment and legal certainty.

46.      I agree with the Commission.

47.      First, given that recognition of refugee status is a declaratory act and that a refugee has a subjective right to be recognised as such from the date of his or her application for that status, I consider that to make the assessment of minor status and the right to family reunification under point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 dependent on, inter alia, the moment at which the competent national authority grants a sponsor refugee status would undermine the effectiveness of that provision, the objectives of Directive 2003/86, the requirements of Article 7 and Article 24(2) of the Charter and the principles of equal treatment and legal certainty.

48.      Second, while the Italian Government’s observations in respect of the favourable conditions afforded to unaccompanied minors (28) by Article 10(3)(a) of Directive 2003/86 as interpreted by the Court in the A and S judgment are undoubtedly correct, they fail to recognise that that directive grants more favourable conditions to other refugees with respect to the exercise of the right to family reunification in order to take account of the vulnerable position in which those refugees find themselves.

49.      Indeed, an entire chapter of Directive 2003/86, namely its Chapter V, entitled ‘Family reunification of refugees’, is dedicated to that end. (29) Thus, in order to facilitate family reunification of refugees, the provisions of Chapter V of Directive 2003/86 establish a number of important derogations from certain requirements that are otherwise applicable. In that regard, I would add that Article 10(3)(a) of Directive 2003/86 itself is found in Chapter V of that directive.

50.      The favourable conditions afforded under Chapter V of Directive 2003/86 extend, in particular, to the family members referred to in Article 4(1) of Directive 2003/86 and thus inter alia to the minor children of refugees. (30) Article 12(1) of Directive 2003/86, for example, states that Member States may not require the refugee or his or her family members to provide, in respect of applications concerning, inter alia, a refugee’s spouse or minor children referred to in Article 4(1) of that directive, evidence that the refugee fulfils the requirements set out in Article 7(1) thereof as regards accommodation, sickness insurance and stable and regular resources. (31) In addition, Article 12(2) of Directive 2003/86 states that, by way of derogation from Article 8, the Member States shall not require the refugee to have resided in their territory for a certain period of time before having his or her family members join him or her.

51.      There thus appears to be no basis under Directive 2003/86 and, in particular, Chapter V thereof, to limit the application of the reasoning in the A and S judgment to unaccompanied minor refugees.

52.      Third, notwithstanding that in the interpretation and application of Directive 2003/86, the État belge judgment calls for procedural equality and fairness in order to ensure respect for family life under Article 7 of the Charter and the rights of the child under Article 24(2) of the Charter, the solution adopted in that case must be read in the light of the facts before the referring court and the reasoning relied upon in reaching that solution.

53.      In that regard, I would highlight that the État belge judgment simply records that the father of the minor children in question was a refugee. The judgment does not indicate when he applied for refugee status or when he had that status conferred on him. Moreover, the reasoning of the Court and the operative part of the judgment apply equally to the children of third-country nationals and of refugees. The judgment of the Court thus does not interpret or rely on any of the numerous provisions of Directive 2003/86 that afford refugees more favourable conditions. Nor does that judgment address the particular situation or ‘legal limbo’ of refugees who seek to avail themselves of the right to family reunification (32) while awaiting a determination on their asylum applications.

54.      It follows that the relevant point in time, pursuant to point (c) of the first subparagraph of Article 4(1) of Directive 2003/86, to assess whether the child of a refugee is a minor within the meaning of that provision, is the date of the sponsor’s application for asylum. (33) 

55.      Applying that approach to the facts in the main proceedings, XC and her father would have been entitled to family reunification, pursuant to point (c) of the first subparagraph of Article 4(1) of Directive 2003/86, in April 2016 at the time when he applied for asylum, given XC’s age at that time and the declaratory nature of the recognition of his refugee status. In the light of the A and S judgment, it would be unlawful were her status as a minor to be assessed at the point in time when her father’s refugee status was recognised, as distinct from when it came into existence. Were it otherwise, the right to family reunification could be dependent on random and unforeseeable circumstances, entirely attributable to the competent national authorities and courts of the Member State concerned and could lead to significant differences in the processing of applications for family reunification between Member States and within a single Member State. (34) Such an approach would run counter to Article 7 and Article 24(2) of the Charter.

56.      It may also be observed that XC applied for family reunification with her father a month after he had been granted refugee status and thus well within the three-month period indicated by the Court in paragraph 61 of the A and S judgment.

57.      In the light of the foregoing, I consider that the answer to the first question is that point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 should be interpreted as meaning that the child of a sponsor granted refugee status is a minor, within the meaning of that provision, if the child was a minor at the time when the sponsor made the asylum application but attained his or her majority before the sponsor was granted refugee status, provided that an application for family reunification was made within three months of the recognition of the sponsor’s refugee status.

B.      Second question

58.      By its second question, the referring court seeks guidance as to the content of the concept of ‘real … family relationship’ contained in Article 16(1)(b) of Directive 2003/86.

59.      Directive 2003/86 does not define that concept. Nor does Article 16(1)(b) of Directive 2003/86 refer to the law of the Member States in order to determine its meaning and scope. In accordance with the need for a uniform application of EU law and the principle of equality, Article 16(1)(b) of Directive 2003/86 must be given an autonomous and uniform interpretation throughout the European Union. Such interpretation must take into account, inter alia, the context of the provision, and the objective pursued by the legislation in question. (35)

60.      Member States may (36) require more than the existence of the/a relationship between parent and child. Otherwise, Article 16(1)(b) of Directive 2003/86 would be superfluous as the terms of Article 4(1) of that directive which refer to the ‘minor children’ of the sponsor would suffice. Moreover, given that Article 16(1)(b) of Directive 2003/86 refers to real marital or family relationships, the scope of that provision is not limited to dealing with the issue of marriages of convenience specifically addressed in Article 16(2) and (4) of Directive 2003/86. (37)

61.      By analogy with Article 16(2)(b) of Directive 2003/86, it appears that Member States may reject an application for family reunification, pursuant to point (c) of the first subparagraph of Article 4(1) of Directive 2003/86, where its ‘sole purpose’ is to enable the child concerned to enter or reside in a Member State and there is no intention to pursue a real family relationship. (38) Article 16(2)(b) of Directive 2003/86 therefore seeks, in my view, to prevent rights being granted pursuant to that directive in cases of abuse or fraud. (39)

62.      In accordance with Article 17 of Directive 2003/86, where a Member State rejects an application for family reunification, it must examine the situation of the family members concerned on a case-by-case basis, by making a balanced, proportionate and reasonable assessment of all of the elements that may require consideration in that context. As is clear from recital 2 of Directive 2003/86, measures concerning family reunification, including those provided by Article 16 thereof, must conform with fundamental rights, in particular the right to respect for private and family life guaranteed by Article 7 and Article 24(2) and (3) of the Charter. (40) Article 18 of Directive 2003/86 also provides that the sponsor and his or her family have a right to mount a legal challenge to a refusal of an application for family reunification.

63.      Aside from the fact that, in accordance with recital 8 of Directive 2003/86, special attention should be paid to the circumstances of refugees and thus to the fact that XC and her father were prevented for a considerable period of time from leading a ‘normal’ family life, I believe that it would be inappropriate and excessive (41) to require that such persons cohabit in a single household or live under the same roof in order to be eligible for family reunification. Moreover, they may not be required to support each other financially, as they may not have the material means to do so. While family reunification ‘is a necessary way of making family life possible’, (42) Directive 2003/86 does not impose any model or norm as to how that family life should be configured, but merely requires that it be ‘real’. In my view, it is necessary to avoid an overly subjective evaluation of what is a ‘real’ family relationship or a ‘normal’ family life and instead to focus on the objective of Article 16(1)(b) of Directive 2003/86 which is to prevent that directive being used to facilitate abuse or fraud.

64.      In any event, it is perfectly ‘normal’ for young adults to live separately from their parents and other family members. In that regard, I consider that given the separate lives XC and her father have led, occasional visits and regular contacts of any kind (43) may suffice to allow them to (re)construct or (re-)establish their family relationship. Such visits or contacts must be of such an intensity as would ‘help create sociocultural stability facilitating the integration of third country nationals in the Member State’. (44)

65.      In the light of the foregoing, I consider that the answer to the second question is that a legal parent/child relationship alone will not suffice to establish a real family relationship pursuant to Article 16(1)(b) of Directive 2003/86. Where family reunification is sought in respect of a minor child who has subsequently attained his or her majority, the sponsor and his or her child are not required to cohabit in a single household or live under the same roof. Occasional visits and regular contacts of any kind which permit them to (re)construct or (re-)establish their family relationship are sufficient.

VI.    Conclusion

66.      In the light of the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) as follows:

(1)      Point (c) of the first subparagraph of Article 4(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification should be interpreted as meaning that the child of a sponsor granted refugee status is a minor, within the meaning of that provision, if the child was a minor at the time when the asylum application was made by the sponsor but attained his or her majority before the sponsor was granted refugee status, provided that an application for family reunification was made within three months of the sponsor being granted refugee status.

(2)      A legal parent/child relationship alone will not suffice to establish a real family relationship pursuant to Article 16(1)(b) of Directive 2003/86. Where family reunification is sought in respect of a minor child who has subsequently attained his or her majority, the sponsor and his or her child are not required to cohabit in a single household or live under the same roof. Occasional visits and regular contacts of any kind which permit them to (re)construct or (re-)establish their family relationship are sufficient.

1      Original language: English.

2      OJ 2003 L 251, p. 12.

3      BGBl. 2008 I, p. 162.

4      BGBl. 2020 I, p. 166.

5      C‑550/16, EU:C:2018:248; also referred to as ‘the A and S judgment’.

6      According to the referring court, under its settled case-law on Paragraph 32 of the AufenthG, although a child need not be a minor when the visa for the purposes of family reunification is granted, he or she must have been a minor at the time when the application was made. Furthermore, he or she must also be a minor at the time the parentis granted the temporary residence permit establishing the right of subsequent immigration of dependants – in the present case, a temporary residence permit as a person with refugee status: Paragraph 32(1)(2) of the AufenthG, read in combination with Paragraph 25(2), first sentence, first alternative. The referring court indicated that ‘Paragraph 32(1) of the AufenthG governs the subsequent immigration of children not only to join persons with refugee status, but also to join foreigners entitled to reside in Germany other than persons with subsidiary protection status. As the requirement of “minor unmarried child” applies equally to all the variations on the subsequent immigration of children then listed under points 1 to 7, the relevant time for determining minority under national law is to be established uniformly. However, the time at which the application for a visa for the purposes of family reunification was made is the only time that comes into question for all variations’.

7      The referring court considers that the Court may have taken account of that element as a makeweight.

8      C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577; also referred to as ‘the État belge judgment’

9      Despite the fact that the first question refers to point (c) of the first subparagraph of Article 4(1) of Directive 2003/86, the Bundesverwaltungsgericht (Federal Administrative Court) referred to point (b) of the first subparagraph of Article 4(1) of that directive in that context. It also referred to points (b) to (d) of the first subparagraph of Article 4(1) of that directive in relation to its second question. Nonetheless, I shall confine my answer to the first question to point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 for the following reasons . Given that XC’s mother is deceased, it appears to be the relevant provision. Moreover, I consider that, irrespective of which provision of points (b) to (d) of the first subparagraph of Article 4(1) of Directive 2003/86 applies to the facts, my answer to the first question concerning the relevant point in time would be identical since points (b) to (d) all refer to ‘minor children’. In that context, I would refer to recital 9 of Directive 2003/86, which provides that ‘family reunification should apply in any case to the members of the nuclear family, that is to say the spouse and the minor children’.

10      Here, his or her parent.

11      It may be observed that the first question does not refer to the three-year temporary residence permit granted to XC’s father pursuant to Paragraph 25(2) of the AufenthG (September 2017) or to the requirements imposed by that provision and Paragraph 32(1) of the AufenthG. This is perhaps because XC applied for family reunification with her father prior to the grant of that permit (10 August 2017) and the short time frame in which the relevant events occurred.

12      Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraphs 35 and 36 and the case-law cited).

13      Judgments of 27 June 2006, Parliament v Council (C‑540/03, EU:C:2006:429, paragraph 60), and of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 26).

14      Those requirements are not the subject of the present request for a preliminary ruling.

15      The Member States may nonetheless determine the age of legal majority. Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 29).

16      In accordance with Article 2(f) of Directive 2003/86 an ‘unaccompanied minor’ for the purpose of that directive ‘means third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they entered the territory of the Member States’.

17      Judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraph 43).

18      Ibid., paragraph 44.

19      Ibid., paragraph 45.

20      In its judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraphs 51 and 52), the Court stated that the condition imposed by Article 3(2)(a) of Directive 2003/86 is easily explained by the fact that before the adoption of a final decision recognising refugee status it is impossible to know with certainty whether the person concerned fulfils the conditions to be granted refugee status.

21      Under Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

22      Judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraphs 53 to 55). The Court noted that two unaccompanied minors of the same age who submitted an application for family reunification at the same time could be treated differently by reason of the time taken to process their respective applications. Given the fact that the duration of an asylum procedure may be significant, to make the right to family reunification depend upon the moment when that procedure is closed would be likely to deny a substantial proportion of refugees who have submitted their application for international protection as an unaccompanied minor from the benefit of that right and from the protection that Article 10(3)(a) of Directive 2003/86 is intended to confer on them. In addition, national authorities may not be prompted to treat applications for international protection from unaccompanied minors promptly thereby frustrating the objective pursued both by that directive and by Directive 2011/95 of ensuring that, in accordance with Article 24(2) of the Charter, the best interests of the child is, in practice, a primary consideration for Member States in the application of those directives. Judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraphs 56 to 58). In paragraph 59 of that judgment, the Court noted, that if the right to family reunification under Article 10(3)(a) of Directive 2003/86 were to depend upon the moment at which the competent national authority formally adopts the decision recognising the refugee status of the person concerned, ‘that … would have the consequence of making it entirely unforeseeable for an unaccompanied minor who submitted an application for international protection to know whether he or she will be entitled to the right to family reunification with his or her parents, which might undermine legal certainty’.

23      Judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraph 60).

24      Judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraph 61). The Court relied, by analogy, on the three-month time limit in the third subparagraph of Article 12(1) of Directive 2003/86.

25      Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraphs 36 and 37). In addition, the Court considered that if the time of the decision of the competent national authorities or courts on the application for family reunification was the relevant point in time for determining the minor status of a child, it would not be possible to guarantee, in accordance with the principles of equal treatment and legal certainty, identical and predictable treatment for all applicants who are in the same situation chronologically. Such an interpretation could lead to significant differences in the processing of applications for family reunification between Member States and, indeed, within a single Member State. Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraphs 42 and 43).

26      It appears that three years was the average period for ruling on disputes relating to family reunification in Belgium. Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 40).

27      See, Article 3(2)(a) of Directive 2003/86.

28      There is no real merit in categorising the factual situation in the present proceeding as the ‘reverse’ situation to that which gave rise to the judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248). Article 2(f), and by implication, Article 10(3)(a) of Directive 2003/86 specifically relate to unaccompanied minors in the territory of the Member States, not to those in third countries. Article 4(1) of Directive 2003/86 secures the rights inter alia of the latter category.

29      See also, recital 8 of Directive 2003/86 which states that the directive provides more favourable conditions for refugees for the exercise of their right to family reunification, on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there.

30      Article 10(2) of Directive 2003/86 provides however that Member States may authorise family reunification of other family members not referred to in Article 4, if they are dependent on the refugee. That provision therefore applies, for example, to persons other than a refugee’s spouse, children or parents.

31      However, pursuant to the third subparagraph of Article 12(1) of Directive 2003/86, Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after the grant of refugee status.

32      Resulting from Article 3(2)(a) of Directive 2003/86.

33      It is clear from the judgment of 9 September 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraphs 48 to 51) that if XC’s father had applied informally for international protection prior to submitting a formal application, the date of the earlier application would be relevant to assess XC’s status as a minor.

34      Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 41).

35      Judgment of 16 July 2020, État belge (Family reunification – Minor child) (C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 30 and the case-law cited).

36      The use in Article 16(1) of the words ‘may reject an application for entry and residence for the purpose of family reunification’ indicates that Member States have a discretion as to that rejection.

37      By contrast, in its the judgment of 9 September 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraphs 53 to 59), which concerned inter alia Article 23 of Directive 2011/95 and maintaining family unity for the family members of beneficiaries of international protection, the Court confirmed that the third indent of Article 2(j) of Directive 2011/95, read in conjunction with Article 23(2) thereof and Article 7 of the Charter, must be interpreted as meaning that the concept of ‘family member’ does not require an effective resumption of family life between the parent of the beneficiary of international protection and his or her child.

38      When making that assessment, Member States could have regard to the fact that family ties were resumed only after the sponsor was granted refugee status despite the fact that it was actually possible to have done so beforehand. See, by analogy, the second subparagraph of Article 16(2)(b) of Directive 2003/86.

39      An analogy may also be drawn between Article 16(1)(b) of Directive 2003/86 and Article 35 of 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). The latter provision entitled ‘Abuse of rights’ provides that ‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31’. The procedural safeguards required by Articles 30 and 31 of Directive 2004/38 are derived from a number of fundamental rights guaranteed inter alia by the Charter such as Article 41 on the right to good administration and Article 47 on the right to an effective remedy and to a fair trial. In addition to the more specific provisions of Articles 17 and 18 of Directive 2003/86, the rights guaranteed by Article 47 of the Charter and the principle of proportionality must be respected when a Member State implements that directive, in particular Article 16(1)(b) thereof. Moreover, while Article 41 of the Charter refers inter alia to institutions of the Union and not to Member States, the right to good administration is a general principle of EU law. Accordingly, where, in the main proceedings, a Member State implements EU law, the requirements pertaining to the right to good administration apply to a procedure pursuant to Article 16(1)(b) of Directive 2003/86: judgment of 8 May 2014, N. (C‑604/12, EU:C:2014:302, paragraphs 49 and 50).

40      See, by analogy, judgment of 14 March 2019, Y.Z. and Others (Fraud in family reunification) (C‑557/17, EU:C:2019:203, paragraph 51 to 53).

41      Neither the Italian Government nor the Commission consider that cohabitation is required.

42      See recital 4 of Directive 2003/86 which provides that: ‘Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty.’

43      The regularity of such visits or contacts is to be assessed in the light of the material circumstances available to the persons in question such as distance between their residences, their financial resources, their work or study commitments, other family commitments, etc.

44      See, recital 4 of Directive 2003/86.

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