Professor Steve Peers, University of Essex
For parents, raising teenagers presents a constant awareness of time’s passage. But consider parents separated from their children by the unfeeling nature of immigration policies: missing milestones, first words, and school events. Even when these parents strive to fulfill family reunion requirements, their children may age out of eligibility during the lengthy application process, leaving a profound void.
Family reunification within the EU for non-EU families is primarily governed by the EU Family Reunion Directive, allowing for the admission of children who haven’t reached adulthood. This raises a crucial question: What happens to applications lodged before a child becomes an adult but are processed after the child turns 18?
The Court of Justice previously addressed a similar situation involving an unaccompanied minor with refugee status who turned 18 soon after applying for asylum in the A and S judgment. The court decided that as long as asylum is sought before turning 18, special provisions within the Directive, mandating the admission of parents of unaccompanied minor refugees, remain applicable if refugee status is granted. However, this left ambiguity regarding other family reunion applications without this specific rule, where the asylum application date is irrelevant. The recent BMM judgment tackles this directly, adopting a compassionate stance towards children aging out during the application process.
EU Family Reunion Regulations: A Summary
It’s important to note that the EU’s Family Reunion Directive establishes minimum standards, allowing individual states to adopt more lenient rules. Focusing mainly on reuniting spouses and underage children with a non-EU sponsor, it generally considers the inclusion of extended family members optional. This Directive is not binding for the UK, Ireland, or Denmark. However, post-Brexit, it will apply to family reunion applications of UK citizens residing in the EU (except Ireland and Denmark) when they are no longer covered by EU free movement law, unless specific exemptions apply.
The Directive’s standard requirements include: a residence permit valid for a minimum of one year for the sponsor with a reasonable likelihood of obtaining permanent residency, the family members residing outside the EU at the time of application, grounds for refusal based on public policy, security, or health concerns, potential conditions related to accommodation, health insurance, and stable income, the possibility of integration measures imposed by member states, and a potential two-year waiting period following the sponsor’s lawful residency before family reunion.
Exclusions from the Directive are also outlined. It doesn’t cover asylum seekers, individuals under temporary protection, those granted subsidiary protection based on national or international law, and, as previously noted, family members of EU citizens. By implication, it also excludes undocumented migrants lacking the required residence permit and long-term residency prospects unless their status is regularized by Member States. Member States retain the right to extend the Directive to these categories (except those covered by free movement laws) at their discretion.
Member States can set less stringent standards than the Directive under specific conditions and derogations. These derogations pertain to children above the age of 12 arriving separately from their families, age minimums for sponsors or spouses, children over 15, and a three-year waiting period.
The Court of Justice has issued numerous rulings on the Directive, covering aspects like its validity against human rights concerns (EP v Council), application to dual EU/non-EU citizens (O and S), the sufficient resources requirement (Chakroun and Khachab), minimum age of spouses (Noorzia), integration conditions (K and A, and K), analogical application of the Directive to family reunion with “home state” EU citizens (C and A) and individuals with subsidiary protection (K and B), residence permit revocation due to fraud unbeknownst to the family member (YZ and others), documentation in refugee cases (E), the public policy exemption (GS and VG), defining dependent family members of refugees (TB), and consequences of delayed administrative decisions (X).
Besides the initial Directive’s rules for refugee family reunification, additional EU laws provide more favorable conditions for specific non-EU citizen groups: holders of an EU Blue Card (highly-skilled workers), intra-corporate transferees, and researchers. The proposed amendment to the Blue Card law would further strengthen these rules.
Analyzing the Judgment
The MBB case revolves around a Guinean national with refugee status; however, the case focuses on the Directive’s general rules, not refugee-specific provisions. The sponsor’s applications for family reunion with their three children were denied, prompting a legal challenge. The initial court dismissed the case, citing the children’s adult status. Upon appeal, the higher court referred questions regarding the interpretation of EU law in this context to the CJEU, given the difference between unaccompanied minor refugees (AS case) and the Directive’s broader rules.
The CJEU clarified that while the Directive allows Member States to set the age of majority for general applications (18 for unaccompanied minor refugees), it doesn’t defer to national law to determine when this condition is met. This lack of discretion stems from the need for uniform interpretation of EU law when national law isn’t referenced, considering the legislation’s context and objectives. The law aims to “promote family reunification” while upholding fundamental rights enshrined in the EU Charter of Rights, such as the right to family life and children’s rights (maintaining parental relationships). Consequently, the Directive’s interpretation and application must align with the Charter, including prioritizing children’s best interests.
If applications became void upon a child reaching adulthood, it could incentivize national authorities to delay processing, “jeopardizing the very right of those minors to family reunification” (referencing the A and S judgment). In this instance, the initial ruling took three years and nine months; “such processing times appear to be commonplace in Belgium.” The Belgian government conceded that the average court wait time is three years, with this case not prioritized despite the children’s ages. Therefore, using the administrative decision date wouldn’t serve the child’s best interests and would result in unequal treatment, as the application’s success hinges on processing speed.
Addressing remedies, the Court examined whether the right to challenge a rejection, considering the Charter’s right to an effective remedy, prevents a national court from dismissing a case solely due to a child reaching adulthood during proceedings.
The court ruled against such dismissals. The child retained a vested interest as the application considers the child’s age at the time of filing. While no deadline binds the court’s ruling and Member States have “some leeway” regarding rules on challenging family reunion rejections, they must still uphold the Charter’s right to an effective remedy. This mandates “effective and real” legal challenges, prohibiting dismissal solely because a child turns 18 during proceedings.
Concluding Remarks
The judgment’s substantive and procedural aspects underscore a robust defense of family unity. By unequivocally stating that the child’s age at the time of application is paramount, it ensures that bureaucratic delays won’t impede family reunification. This offers some redress for the Court’s stance in the X case, where an automatic residence permit (an effective remedy) wasn’t granted for delayed family reunion decisions.
The Court’s emphasis on effective remedies within this Directive transcends the issue of applications becoming time-barred. Confirming the Charter’s applicability to effective remedies for family reunion aligns with recent judgments (asylum law, visa applications) and reinforces this principle’s universality. Stringent time limits or restrictions on judicial review scope or remedies could be challenged under the Charter in any relevant family reunion case, not just those involving children. The Court reaffirms a rights-based approach to interpreting EU law, contrasting with the control-oriented approach often favored by Member States and EU institutions, particularly during the so-called “migration crisis.”
Moreover, the Court’s reaffirmation of children’s rights as a crucial interpretative factor holds implications beyond family reunion law. It extends to other EU immigration and asylum laws, including the Returns Directive, Asylum Procedures Directive, Reception Conditions Directive, and the Dublin Regulation (determining responsibility for asylum seekers). Conversely, it’s worth noting that EU criminal law concerning child suspects’ rights explicitly addresses this, establishing rules similar to the Court’s family reunion judgments in Article 2(3).
Barnard & Peers: chapter 26
JHA law: chapter I:5, I:6
Photo credit: Ackah law