Mark Klaassen, Assistant professor at the Institute of Immigration Law at Leiden University
Introduction
In most EU Member States, family reunification for non-EU citizens residing within their borders and their non-EU family members living abroad is regulated by Directive 2003/86. The UK, Ireland, and Denmark opted out of this directive. This directive has a more lenient system for refugees seeking family reunification, which Member States can restrict to family connections formed before entering the Member State. These exceptions include waiving several requirements for family reunification: the optional exception for those older than twelve; conditions related to housing, health insurance, and “stable and regular resources”; and the waiting period. Additionally, the rules regarding proof of family ties are less strict when documents are unavailable. Finally, the optional “integration measures” requirement can only be applied after family reunification, regardless of whether the family relationship was established before entering the country or not.
However, Member States can choose to apply this more flexible system less broadly concerning the waivers for housing, health insurance, and consistent income if the sponsor or family members have strong ties to a non-EU country where family reunification is possible or if the family reunification application was submitted within three months of being granted refugee status. The last subparagraph of Article 12(1) of the Directive outlines this authority.
But how should Member States handle applications for family reunification from individuals granted international protection that are submitted after this three-month window? This is the central question in Case C-380/17 K. & B., which the Council of State—the highest court for immigration matters in the Netherlands—referred to the Court of Justice of the EU (the Court) for a preliminary ruling.
This blog will first outline how Article 12(1) of the Directive is implemented in the Netherlands. Then, I will discuss the cases that led to the preliminary reference. After that, I will summarize the Court’s ruling. Finally, I will explore the implications of this ruling on family reunification for refugees. It’s worth noting that the judgment also affirmed the Court’s authority to interpret the Directive concerning family reunification for individuals granted subsidiary protection in the Netherlands, even though they are excluded from the Directive’s scope. This is because the Netherlands has opted to apply the Directive to them in the same way it does to refugees. I won’t delve further into this jurisdictional issue.
Family reunification of refugees in the Netherlands
The Netherlands has a single-status system for refugees, meaning no distinction is made between refugee status and subsidiary protection status. This impacts how the Directive is implemented. While beneficiaries of subsidiary protection are not covered under the Directive, because Dutch asylum law doesn’t differentiate between refugees and those granted subsidiary protection, all individuals receiving international protection qualify for family reunification under the Directive’s implementation. Once international protection is granted, the sponsor has three months to submit a family reunification application for family members left behind in their home country. If the application is made within these three months, no additional requirements for family reunification are imposed, aligning with Article 12(1) of the Directive. Additionally, there are no administrative fees for submitting the application.
Applications submitted after the three-month window are rejected. Even though there’s no legal basis for exceptions in Dutch law, only under very extraordinary circumstances would an application submitted after the three months be approved. When deciding whether such special circumstances exist, the Dutch authorities do not consider the best interests of the child (Article 5(5) of the Directive) or the case’s specific circumstances (Article 17 of the Directive). A sponsor granted international protection can submit a “regular” application for family reunification after the three months. In these standard applications, the substantive requirements—based on Article 7(1) of the Directive—apply in full.
The applicants in K. and B.
Applicant K. is an Afghan mother whose child is an unaccompanied minor residing in the Netherlands. The minor sponsor was granted international protection in the Netherlands on February 14, 2012. As an unaccompanied minor, a legal guardian was appointed for the sponsor. The sponsor applied for family reunification with his mother on November 27, 2013. The referral order suggests that the legal guardian did not inform the applicant about the option to apply for family reunification. The application was rejected because it was not submitted within three months of receiving international protection.
An appeal was filed with the District Court of Zwolle, which ruled in favor of the applicant. Citing the best interests of the child as outlined 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 regarding Article 8 ECHR (the right to private and family life), the District Court determined the Secretary was obligated to conduct a case-by-case evaluation of the competing interests. The Secretary appealed the District Court’s decision to the Council of State, which is the referring court in this case. In its referral to the Court, the Council of State faults the sponsor, who was fifteen years old when the application was submitted, for not being aware of the three-month deadline for family reunification applications. The Council of State deemed it reasonable to attribute the lack of information provided by the legal guardian to the minor sponsor.
Applicant B. is the infant daughter of an Eritrean national who received international protection in the Netherlands on September 23, 2014. The sponsor applied for reunification with his wife and baby daughter on January 22, 2015. The application was filed one month after the three-month deadline. The applicant appealed the denial of his application to the District Court of Amsterdam. His appeal was rejected on June 24, 2016, leading him to submit a subsequent appeal to the Council of State. The delayed application was attributed to a miscommunication between the sponsor and the Dutch Refugee Council, which plays a formal role in helping beneficiaries of international protection apply for family reunification. The sponsor misinterpreted a conversation with the Dutch Refugee Council. In the referral to the Court, the Council of State attributes the misunderstanding to the applicant.
These two cases are not isolated incidents. In 2014, the Advisory Committee on Migrations Affairs, an independent body that advises the Dutch government and parliament on immigration law and policy, pointed out that the inflexible nature of the three-month timeframe is problematic. The Committee maintained that the swift reunification of beneficiaries of international protection with their families is important, particularly in the context of integration into Dutch society. They advised the Dutch government to proactively inquire with each beneficiary of international protection about their desire to apply for family reunification and to incorporate a hardship clause for cases where applications are submitted after the three-month period.
The ruling of the Court
The Court ruled that the EU legislature explicitly permits Member States to apply the conditions outlined in Article 7(1) of the Directive to refugees who apply for family reunification after the deadline stipulated in Article 12(1) has passed (para 46). Therefore, Member States are allowed to process applications submitted after the three-month window under the general rules rather than the more lenient rules for refugees (para. 47).
According to the Court, the EU legislature did not establish a specific procedure for handling late applications (para. 55). Consequently, the principle of procedural autonomy comes into play, constrained by the general principles of equivalence and effectiveness (para. 56). The effectiveness principle mandates that the national procedure cannot make exercising the rights granted by the Directive practically impossible or excessively challenging. Regarding the three-month deadline, the Court finds that rejecting an application solely for exceeding this deadline doesn’t inherently make exercising the right to family reunification practically impossible or excessively difficult if a new application can be submitted under the conditions of Article 7(1) (para. 59). This approach ensures that the right to family reunification is safeguarded (para. 60). However, the Court highlights that this doesn’t apply to situations where the delayed application submission is objectively excusable (para. 62).
In this context, Member States must fully inform applicants about the consequences of application rejection due to non-compliance with the three-month deadline. Furthermore, the Member State must explain to the applicant how they can still effectively exercise their right to family reunification (para. 63). The Court concludes by emphasizing that although Member States can impose the requirements of Article 7(1) of the Directive when an application is submitted after the three-month deadline, the other provisions within the Chapter on family reunification of refugees still hold (para. 64-65).
Analysis: A pyrrhic victory for the Dutch government?
The Court’s judgment means that the distinction within Dutch immigration law between family reunification for beneficiaries of international protection and “regular” family reunification can be maintained. However, when applying the “regular” family reunification rules, the sponsor’s international protection status must be considered (para. 53). The refugee family reunification procedure needs to incorporate a codified requirement to disregard the three-month deadline in situations where the late application submission was objectively excusable.
This marks the Court’s second ruling on refugee family reunification in the Netherlands. In the A. & S. judgment (discussed here), the Court determined that an unaccompanied minor considered a minor at the time they applied for international protection has the right to family reunification with family members who remained in their country of origin. This case also centered on the Member States’ procedural autonomy to establish regulations when the Directive doesn’t provide specific procedural rules. The Court held that making the right to family reunification reliant on the timing of international protection being granted by national authorities would jeopardize the effectiveness of the protection offered by the Directive (A. & S., para 55).
This aligns with the Court’s interpretation of other provisions within the Directive. In Chakroun, the Court ruled that a Member State’s authority to demand that the sponsor demonstrates stable, regular, and sufficient resources cannot be used in a way that undermines the right to family reunification (Chakroun, para. 43). The Court reaffirmed this stance in O., S. & L., where it strongly emphasized the role of fundamental rights when determining a member state’s authority to impose the requirement of stable, regular, and sufficient resources (O., S. & L., para. 80). In this case, the Court stated 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 shows that even when an application is submitted after the three-month period outlined in Article 12(1) of the Directive, applying the conditions of Article 7(1) of the Directive cannot undermine the right to family reunification for an individual granted international protection. While this conclusion might appear self-evident, its implications are far-reaching.
To what extent should we expect the applicants in these cases to satisfy the stable and regular sufficient resources requirement? To explore this, it’s helpful to consider the Directive’s drafting history. In the European Commission’s initial proposal, refugees were consistently exempt from these substantive conditions because “[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]. While the EU’s qualification Directive grants them the right to seek employment, beneficiaries of international protection often face significant disadvantages in the job market. Requiring them to meet the stable and regular sufficient resources requirement could hinder the effective exercise of the right to family reunification. In this context, the Court’s reasoning in O., S. & L.—emphasizing the need for a “balanced and reasonable assessment of all the interests in play”—becomes paramount.
It’s crucial to note that this assessment differs from the balancing of interests under the ECtHR case law concerning Article 8 ECHR. This is because the Directive grants a subjective right to family reunification. The question that must be addressed is whether imposing the stable and regular sufficient resources requirement would undermine the effectiveness of the Directive. It’s not (as under the ECtHR case law) about whether a fair balance has been struck between individual interests and the state’s interest in controlling immigration.
Finally, as mentioned earlier, Article 12(1) allows Member States to apply the conditions from Article 7(1) if an application is received after the three-month period. Notably, this does not encompass the requirement to comply with integration measures outlined in Article 7(2) of the Directive. This means refugees can never be subjected to pre-entry integration exams in their home country, even if they apply after the three-month window.
Barnard & Peers: chapter 26
JHA4: chapter I:6
Photo credit: AP/Boris Grdanoski