Professor Steve Peers, University of Essex

Reaching the age of 18 is a major milestone, signifying a transition to adulthood. While it may not bring immediate changes to family dynamics, it holds significant legal implications.

However, in immigration and asylum law, turning 18 can mean reduced legal rights, especially for vulnerable unaccompanied minors. Given lengthy legal processes, a key question arises: When an applicant starts as a minor but turns 18 before the process concludes, do they keep the protections afforded to children? When precisely does this special status cease?

This question was central to the recent A and S judgment, marking the first time the Court of Justice addressed family reunion rights for child refugees. The case revolved around the EU’s family reunion Directive, which outlines specific provisions for refugees, particularly unaccompanied minors. This judgment might have broader implications for young people within EU immigration and asylum law.

EU Rules on Family Reunion

The EU Directive sets minimum benchmarks for family reunification, allowing member states to be more lenient. It mainly addresses reuniting spouses and underage children with a non-EU sponsor. Admitting extended family is generally optional. While not applicable to the UK, Ireland, or Denmark, it will impact UK citizens residing in the EU after Brexit (except Ireland and Denmark). This applies unless covered by the withdrawal agreement or if specific post-Brexit family migration rules are agreed upon.

Standard requirements include a sponsor’s residence permit (valid for at least one year with a pathway to permanency), family members residing outside the EU during application, grounds for refusal based on public policy or health, potential conditions related to accommodation and resources, and a waiting period of up to two years.

Exclusions from the Directive cover asylum seekers, those under temporary protection, beneficiaries of national/international subsidiary protection, and EU citizen family members. Irregular migrants are implicitly excluded, lacking the required residence permit.

Member states can apply less stringent standards for specific cases, such as children over 12 arriving separately, age limits for sponsors or spouses, children over 15, and a three-year waiting period, though subject to specific conditions.

The Court of Justice has interpreted the Directive in various cases, addressing human rights concerns, dual EU/non-EU citizens, resource requirements, spouse minimum age, and integration conditions. Pending cases involve applying the Directive to “home State” EU citizen family reunion, subsidiary protection beneficiaries, residence permit issues due to integration conditions or sponsor fraud.

Beyond the refugee-specific provisions, other EU legislation offers more favorable family reunion conditions for Blue Card holders (highly skilled workers), intra-corporate transferees, and researchers. A proposed amendment to the Blue Card law seeks to further enhance these rules. The A and S judgment represents the first interpretation of these specific provisions.

Refugee Exceptions

These special provisions apply to refugees granted protection by a Member State. “Refugee” is defined by international law (UN Convention and protocol), not EU law, as the Directive predates EU asylum law. Member states can restrict these rules to pre-existing family ties.

These rules waive several conditions: the over-12 derogation, accommodation and resource requirements (unless linked to a non-EU country or application made over three months post-refugee status), and the waiting period. Relaxed rules apply for proving family ties if documents are unavailable. Integration requirements are applicable only after reunification.

However, other conditions remain: the sponsor’s residence permit requirement, residence outside the EU during application, and public order/health concerns. EU law makes the first condition easier to meet, as the Qualification Directive mandates a minimum three-year residence permit for recognized refugees, who are also eligible for EU long-term residency.

Crucially, these rules make parental admission for unaccompanied minor refugees mandatory, waiving typical dependency and support conditions.

The Judgment

The A and S case involved a young Eritrean woman who sought asylum in the Netherlands shortly before turning 18. Granted refugee status after her birthday, an NGO applied for family reunification for her parents and siblings under the special provisions. However, her eligibility for these provisions, given her age at the time of application and refugee status grant, was questioned.

The Dutch government argued for national law to determine the relevant date for considering someone a minor. The Commission proposed the family reunion application date, while the Polish government suggested the decision date. The applicants (the parents) advocated for the initial entry date. No party proposed the refugee application decision date, despite its logical relevance. Ultimately, the Court chose the date of the refugee status application.

The Court emphasized the Directive’s guarantee of family reunion, aiming to provide refugees, who are often displaced and separated, with favorable conditions for exercising this right. These favorable conditions include mandatory parental admission for unaccompanied minors, waiving typical requirements.

The Court then highlighted that the “unaccompanied minor” definition wasn’t fixed at entry, as parents might arrive later or abandon the child afterward. While the Directive’s text doesn’t explicitly specify when the age requirement applies, it doesn’t grant member states discretion in this matter. The Court applied the principle of uniform interpretation of EU law provisions, considering context and legislative objectives.

Given explicit references to national law in other Directive provisions, the absence of such a reference in the “unaccompanied minor” definition implied otherwise. The Directive aimed to grant parental admission, prioritizing family life protection for refugees. This case differed from Noorzia, concerning the optional minimum age for spouses, where member states had explicit discretion. Therefore, this matter couldn’t be left to individual member states.

Instead, the “unaccompanied minor” definition required a uniform interpretation based on the Directive’s wording, scheme, objectives, regulatory context, and general EU law principles. The wording itself didn’t settle the issue. The scheme excluded asylum seekers from the Directive’s scope and applied special rules only after refugee status was “recognized.” Here, the Court noted the Qualification Directive’s mandate to grant refugee status to eligible applicants, recognizing it as a declaratory act. Essentially, those meeting the criteria have an inherent right to refugee status even before formal recognition.

Consequently, the applicant’s age couldn’t be assessed based on the refugee status decision date, as this would make it dependent on administrative efficiency, potentially undermining the family reunion rules, the Directive’s objectives, equal treatment, and legal certainty. It could lead to different outcomes for two children of the same age based on processing times, which are beyond their control. Delays due to surges in applications could further exacerbate this issue, potentially denying many unaccompanied minors their family reunion rights. (The Court’s reference to the asylum procedures Directive’s time limits is inaccurate, as these apply from July 2018).

Instead of prioritizing fast-tracking, delays might be used to prevent parental admission by waiting until the child turns 18, hindering EU legislation objectives and the EU Charter’s child rights provisions. The Court indirectly acknowledged potential manipulation by national authorities. Using the refugee status decision date also undermines legal certainty for young applicants regarding family reunion.

The Court’s preferred interpretation, using the asylum application date, ensures equal treatment and predictability, as it depends on intrinsic factors rather than administrative efficiency. However, it acknowledged the Dutch government and Commission’s argument for a time limit, suggesting a “reasonable time” of three months post-refugee status decision, aligning with the existing deadline for applying for family reunion before resource conditions apply.

The Court rejected other potential dates: the entry date due to the link between family reunion and refugee status (granted post-application); the family reunion application or decision dates, as these contradicted the Court’s reasoning.

Comments

The judgment emphasizes a rights-based approach, prioritizing family reunion, particularly for child refugees. This contrasts with the control-based approach often seen during recent migration challenges. While connecting the interpretation to the asylum process (despite its absence during the Directive’s creation), the Court views this process with caution, highlighting potential for rights infringement. This perspective might further develop in pending cases where member states extended special rules to beneficiaries of subsidiary protection.

Had the Court strictly adhered to the declaratory effect of refugee status, using the asylum application date might be debatable. The child’s refugee status should ideally be recognized retrospectively from entry or when circumstances in their home country deteriorated. While the Court rightfully links family reunion to refugee status, this link is inherent to the Directive. Nevertheless, the judgment prompts unaccompanied minors nearing 18 to apply for asylum swiftly to avoid jeopardizing their family reunion rights.

Member states retain some control. They can manage border access but can’t outrightly ban minors from seeking asylum, as per the asylum procedures Directive. Post-refugee status grant, they can apply general or refugee-specific family reunion restrictions, if not already invoked (some options are restricted by the “standstill” rule).

The Court introduces a new constraint: a potential three-month deadline for triggering special parental reunion rules. This, combined with the existing deadline to avoid resource-related conditions, necessitates swift action. While refugees have employment rights (qualification Directive), securing suitable employment within this timeframe might be challenging (especially for asylum seekers with restricted access). Unlike EU free movement law, the family reunion Directive puts the onus of resource requirements solely on the sponsor. The principle of effectiveness suggests that this deadline shouldn’t apply to those unjustly denied reunion rights before the judgment (similar to the King judgment on holiday pay).

The judgment’s broader implications for other EU asylum legislation, particularly those regarding unaccompanied minors (e.g., returns Directive, qualification Directive, asylum procedures Directive, reception conditions Directive, Dublin rules), are worth considering. These often share similar “unaccompanied minor” definitions without addressing the “adulthood transition,” warranting similar interpretation. Conversely, EU criminal law on child suspects’ rights explicitly addresses this, aligning with the Court’s judgment.

This judgment might create political friction, as special provisions for unaccompanied minors were already contentious. This issue might resurface during legislative revisions, particularly regarding the Dublin rules, where the Commission seeks to alter the Court’s previous ruling favoring unaccompanied minors.

In essence, this judgment enables direct family reunification in the Member State where the child resides, bypassing the Dublin process (which, despite allocating responsibility based on family ties, faces practical challenges, further complicated by proposed amendments). Arriving family members will generally have access to work and other rights as per the qualification Directive.

Most importantly, the ruling ensures safe passage for family members, allowing legal travel to the EU and avoiding dangerous smuggling routes. This judgment holds the potential to save lives.

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

Photo credit: care4calais.org