Chiara De Capitani (PhD) is a linguist agent working for the European Commission and a member of Amnesty International Belgique francophone’s Sexual Orientation and Gender Identity (OSIG) coordination group. The opinions and perspectives presented in this article are solely those of the author and do not necessarily represent the views, policies, or opinions of the European Commission or Amnesty International.

Photo credit: Enno Lenze, via Wikimedia Commons

As of this writing, the European Parliament recently voted to approve the EU’s New Pact on Migration and Asylum, despite concerns raised by over 50 civil society organizations. Amnesty International argues that this agreement extends a decade of policies that have escalated human rights violations in Europe and will severely impact the right to international protection within the EU. They warn that it could lead to abuses such as racial profiling, de facto detention, and pushbacks. Previous blog posts have analyzed the legislative agreements underpinning the New Pact, including the new Eurodac Regulation, aptly described as promoting an environment where “resistance is futile.”

However, there is still hope. A recent ruling on January 30th serves as a reminder of the Court of Justice of the European Union’s ability to establish human rights standards that surpass those negotiated by politicians. This particular case centers around the right to family reunification.

Introduction

Directive 2003/86/CE, also known as the “Family reunification directive,” can be interpreted as both an individual right and a tool for managing migration. Established over two decades ago after three years of intricate negotiations within the Council of the European Union, the directive contains numerous discretionary clauses, leading to inconsistencies in its application across member states. There’s a lack of harmonization regarding the definition of family beyond the core unit and the conditions required for family reunification. Despite variations in how member states incorporate the directive into their national laws, family reunification remains a primary driver of migration to the EU, accounting for 25% to 33% of first residence permits granted to non-EU citizens since 2008.

It was against this complex backdrop that the Court of Justice of the European Union (CJEU), convening as the Grand Chamber, reviewed several pivotal aspects of family reunification rights for unaccompanied refugee minors in the Landeshauptmann von Wien judgment.

This judgment emphasizes the necessity of a robust right to family reunification. This involves ensuring more favorable conditions for unaccompanied minor refugees, particularly concerning timelines and requirements for accessing benefits outlined in the directive. It also means protecting the absolute right to family reunification for unaccompanied minors. In this specific case, the court ruled that a residence permit be given to the adult sister of the sponsor, who relies entirely on their parents for care.

The dispute in the main proceedings

RI, the applicant, is a Syrian minor who arrived in Austria in 2015, receiving refugee status in 2017. Three months and one day after this recognition, RI’s parents and adult sister (CR, GF, and TY) applied for entry and residency in Austria through the Austrian Embassy in Syria. Their goal was family reunification with RI. Although RI was a minor when the application was submitted, they turned 18 during the process, leading to the application’s denial.

In 2018, a second application was submitted to the Governor of the Province of Vienna. This too was rejected, as it fell outside the three-month window following RI’s refugee status grant.

The applicants challenged these decisions in the Vienna Administrative Court. The court identified three primary concerns regarding the application of Article 10(3)(a) of the Family reunification directive.

Deadline for unaccompanied minors and their family to apply for family reunification

According to Article 10(3)(a), if the refugee is an unaccompanied minor, EU member states must permit the entry and residency of their immediate family for reunification. This applies even if the family members are not financially dependent on the minor, as long as they lack adequate family support in their home country.

The CJEU previously determined that individuals under 18 upon entering an EU nation and applying for asylum are considered minors, even if they turn 18 during the process and are later recognized as refugees. However, the court also ruled that this provision isn’t without a time limit. Family reunification applications must be submitted within a reasonable timeframe, generally considered three months from the date of the minor’s refugee status grant.

In the present case, the court questioned the application of these time limits within the family reunification procedure, not the asylum process. It asked whether an application could be considered late if submitted while the refugee was still a minor but turned 18 during the family reunification process itself. Additionally, it questioned if the three-month timeframe applied when the individual was still a minor when the family reunification application was submitted.

The CJEU emphasized that connecting the right to family reunification for an unaccompanied minor to the date of their official refugee status could compromise the provision’s efficacy. This is because its application would hinge on the processing speed of the international protection application, contradicting the directive’s goal of facilitating family reunification and granting special protection to refugees, especially unaccompanied minors. It would also violate principles of equal treatment and legal certainty.

Based on these factors, the court concluded that as long as the refugee is a minor, their parents can apply for entry and residency for family reunification without adhering to a strict deadline to benefit from the more favorable conditions outlined in Article 10(3)(a).

Conditions required from a minor refugee to exercise the right to family reunification

The Family reunification directive states that if a family reunification application isn’t submitted within three months of obtaining refugee status, member states can require the refugee to fulfill specific conditions. These include having suitable accommodation for a comparable family, health insurance for themselves and their family, and consistent income to support themselves and their family.

Given that the family reunification application in this case was submitted three months and one day after the sponsor received refugee status, the referring court questioned whether, under Article 10(3)(a), member states could impose the conditions outlined in Article 12(1) on an unaccompanied minor or their parent(s) for them to exercise the right to family reunification.

The court highlighted that the directive establishes two distinct frameworks. The first pertains to family reunification of any refugee with their immediate family, as per Article 12(1). Here, if the application falls outside the three-month window, member states have the discretion to apply the Article 7(1) conditions. However, this does not apply to unaccompanied minor refugees reuniting with their parents.

According to the court, this distinction stems from the Charter of Fundamental Rights of the European Union, particularly Article 7, which focuses on respecting family life, and Article 24(2) and (3). These articles emphasize the child’s best interests as paramount in any decisions concerning them and the importance of regular contact with both parents.

Both the court and the Commission acknowledge the near impossibility for unaccompanied minor refugees to secure adequate accommodation, health insurance, and sufficient resources for themselves and their family. Similarly, expecting their parents to meet these requirements before joining their child in the host member state is extremely challenging.

The court concluded that requiring unaccompanied minor refugees to meet Article 7(1) conditions as a prerequisite for reuniting with their parents would essentially deny them this right, violating Article 7 and Article 24(2) and (3) of the Charter.

Finally, considering the unique circumstances of the case, the member state cannot impose Article 7(1) conditions on RI or their parents concerning the minor refugee’s adult sister.

Granting a residence permit to the adult sister of an unaccompanied minor refugee

This case is notable for the court’s recognition that the adult sister of an unaccompanied minor refugee should be granted a residence permit.

The circumstances surrounding the case are exceptional. TY, residing in Syria with her parents, has cerebral palsy, necessitating a wheelchair and constant care from her mother, including assistance with eating. As TY cannot receive this crucial care from anyone else, her parents cannot leave her behind in Syria.

Therefore, the court questioned whether, under Article 10(3)(a), a residence permit must be granted to the adult sister of an unaccompanied minor refugee, as denying it could infringe upon the right to family reunification between the refugee and their parents. The court also acknowledged that a residence permit might be granted to the sponsor’s adult sister on “compelling grounds relating to private and family life,” as per Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) under Austrian law. However, as rights directly derived from EU law might offer broader protection than those provided by the ECHR, the court needed to determine if the applicant’s sister could invoke such rights.

The court reiterated that, according to Article 51(1) of the Charter, member states must uphold the rights and principles enshrined within it when implementing EU law. They also have a duty to encourage its application. This means member states must not only interpret their national laws in harmony with EU law but also avoid relying on interpretations of secondary legislation that clash with fundamental rights protected by the EU’s legal order. Thus, the Family reunification directive must be interpreted and applied in conjunction with the aforementioned Article 7 and Article 24(2) and (3) of the Charter.

It follows that Article 10(3)(a) provides heightened protection for unaccompanied minor refugees due to their heightened vulnerability. Referencing its past rulings, the court stressed that this article obliges member states to authorize family reunification for immediate family members of the applicant without any room for discretion.

Therefore, considering the specific circumstances, ensuring the right to family reunification for the minor refugee with their parents necessitates granting a residence permit to their adult sister, who is entirely dependent on their parents for care.

Conclusion

The political climate and complexities surrounding the Family reunification directive’s adoption have hindered a review of its content, leaving the protection of family reunification bound to conditions negotiated over two decades ago. Conversely, the Charter is a dynamic instrument, interpreted within the context of current realities. The court’s emphasis on its articles when evaluating the implementation of EU law is therefore critical. This judgment demonstrates how the court’s interpretation of the principle of effet utile prioritizes human rights and places the rights of refugee minors at the forefront.

Ultimately, this judgment strengthens the right to family reunification for unaccompanied minors, impacting procedural rules, conditions, and application. It guarantees reunification with parents and extends to family members not explicitly covered by Article 10(3)(a) to ensure this right.

Given the unique circumstances of the case, the court’s ruling doesn’t immediately redefine family members eligible for reunification with an unaccompanied minor. However, it reflects the court’s effort to balance the requirements for family reunification with respecting the absolute nature of individual rights guaranteed by the directive. This could significantly impact future decisions.

For example, the court’s reasoning could be applied to recognize an obligation to grant residence permits to other family members if it’s the only way to allow an unaccompanied minor sponsor to exercise their right to family reunification with their parents.

Furthermore, a similar approach could be considered for two other articles within the Family reunification directive that impose a positive obligation on member states:

Article 4(1), which places clear positive obligations on member states by requiring them to allow family reunification for certain members of the sponsor’s immediate family, with clearly defined individual rights and without room for discretion.

Article 17, which emphasizes the need for member states to conduct a balanced and reasonable assessment of all relevant interests when implementing the Family reunification directive and reviewing family reunification applications.

In cases where a sponsor’s reunification with their immediate family would be impossible due to the hardship it would impose on remaining family members in their home country, particularly when the sponsor’s vulnerabilities (such as being a refugee and/or unaccompanied minor) warrant family reunification under Article 4(1), the court’s reasoning in this case could be applied. Sadly, such difficult situations, while seemingly exceptional, are not uncommon for refugees.

Given the current political impasse in this area, future developments concerning family reunification will likely rely on the CJEU’s case law, which, as demonstrated in this judgment, sets a precedent for legislators.

Meanwhile, given the surge in cases brought before the court since the 2014 Commission guidance on applying the directive, an updated guidance note is necessary. It would be beneficial for the Commission to issue a communication on Directive 2003/86, summarizing the court’s case law. After 20 years, a clear and concise overview of the court’s interpretation of the directive could enhance legal certainty, promote uniform application across member states, and, most importantly, empower individuals to secure their rights under the Charter.