By Silvia Bartolini
On 12 April 2018 the Court of Justice of the EU (hereinafter, the “Court”) delivered a key ruling in A & S (case C-550/16), which hopefully marks a conscious step towards the creation of an effective EU system for the protection of children in migration.
As the Commission points out, the protection of children in all stages of migration should be “first and foremost about upholding European values of respect for human rights, dignity and solidarity. It is also about enforcing European Union law and respecting the Charter of Fundamental Rights of the European Union and international human rights law on the rights of the child” (COM (2017) 211 final). Yet their vulnerability is often denied or forgotten by Member States, especially in the mist of the so-called ‘migratory crisis’.
A & S brings forward the issue as to whether a Member State can deny both the status of being a child and the corresponding protection under EU law to a young refugee who entered its territory as an unaccompanied minor and turned eighteen while waiting for their application for international protection to be processed. In particular, could Member States be left to ‘use’ delays in the processing of children’s applications for the refugee status as a mechanism to thwart their fundamental right to family reunification?
In its children’s rights centred ruling, the Court made clear that Article 10 (3) (a) of Family Reunification Directive (Directive 2003/86/EC) creates an enforceable right to unaccompanied minor refugees to be reunited with their parents; a right which cannot be thwarted by the ‘negligent’ behaviour of the national authorities. In particular, an unaccompanied child who has turned eighteen while waiting for their refugee status application to be processed should still be considered as an ‘unaccompanied minor’ and therefore be entitled to a right to family reunification if their application is successful.
The Facts and the Question before the Court
The case concerned a young Eritrean, the daughter of A and S, who arrived in the Netherlands as an unaccompanied minor. She applied for asylum, and while waiting for the national competent authority to process her application she attained the age of maturity. Once she was granted asylum, she promptly submitted an application for temporary residence permits for her parents and three minor siblings for the purpose of family reunification. Her application was however rejected on the grounds that she had turned eighteen by the time she submitted the application.
She appealed against the refusal before the District Court of the Hague (the Netherlands), which decided to stay proceedings and refer to the Court a question of interpretation pursuant to Article 267 TFEU. The question related to the interpretation of the concept of ‘unaccompanied minor’ pursuant to Article 2 (f) of the Family Reunification Directive, and more specifically to the identification of the date which national competent authorities have to take into account when considering whether an individual qualifies as an accompanied minor within the meaning of the Family Reunification Directive; most notably the date of (i) the entry into the territory of a Member State; (ii) the lodging of the application for asylum or (iii) the submission of the application for family reunification.
In essence, the Court was asked to clarify whether a child who arrives on the territory of a Member State unaccompanied, who applies for international protection and who is only granted the refugee status after attaining the age of maturity, is nevertheless still entitled – in the event its application is successful – to a right of family reunification pursuant to Article 10 (3) (a) of the Family Reunification Directive.
First, the Court reminded that the Family Reunification Directive sets out more favourable conditions for refugees vis-à-vis the exercise of their right to family reunification, most notably with regards to family reunification with first-degree relatives in the direct ascending line. More specifically, unaccompanied children refugees enjoy an additional protection pursuant to Article 10 (3) (a): their right to family reunification – by way of exemption of the regime applicable to ‘adults’ refugees – is not left to the discretion of the Member States and submitted to the conditions set out in Article 4 (2) (a). Those being that first-degree relatives in the direct ascending line are dependent upon the sponsor and do not enjoy a proper family support in their country of origin (paras 31-34).
Next, the Court noted that the concept of ‘unaccompanied minor’ within the meaning of the Family Reunification Directive relates to the fulfilment of two cumulative conditions: the child concerned has to be (1) ‘minor’ and (2) ‘unaccompanied’. The Court further clarified that such a concept is not fixed at the moment of entry in the territory of a Member State: circumstances arising later should also be taken into account. It is however unclear from Article 2 (f) when the condition of being ‘below the age of eighteen’ would be satisfied. In this regard, the Court pointed out that this does not mean that it is up to the discretion of each Member State to decide over the matter (paras 35-40).
In particular, the Court recalled that according to its case law when there is no express reference to the law of the Member States, a provision of EU law should be interpreted in an autonomous and uniform way throughout the EU and that such interpretation should take into account both the context and the objectives of the legislation at stake. On such a basis, the Court considered that there are indeed provisions in the Family Reunification Directive expressly referring to national law, such as Articles 5 (1) and 11 (2) and thereby concluded that if the EU legislature intended to leave the Member States with the leeway to decide when the condition of a child being ‘below the age of eighteen’ would be satisfied, it would have included an express reference in that context too (paras 41-42).
The Court further pointed out that the objective of the Family Reunification Directive is, in particular, to guarantee through Article 10 (3) (a) an additional protection to refugees who are unaccompanied minors, by providing them with an enforceable right to family reunification which consequently entail a positive obligation on the Member States to give a right of admission to their parents. The Court then made clear that the situation at hand differs significantly with that in Noorzia (case C-338/13), where at stake was an optional rule expressly leaving Member States the discretion to determine the minimum age of spouses for family reunification. Therefore, the Court concluded that the determination of when the condition of a child being ‘below the age of eighteen’ would be satisfied cannot be left to each Member States to decide. A uniform standard has to be established by reference to the “the wording, general scheme and objective of that directive, taking into account the regulatory context in which it is found and the general principle of EU law” (paras 43-48).
In this regard, as the wording of both Articles 2 (f) and 10 (3) (a) does not provide sufficient help, the Court looked at the general scheme of the Family Reunification Directive; from here the Court concluded that the more favourable regime for refugees’ family reunification would only apply after a third country national or stateless person would be recognised as a refugee by Member States. The Court further reminded that the Qualification Directive (Directive 2011/95/EU) requires the Member States to grant the refugee status when a third country national or a stateless person meets the relevant conditions under that Directive, and then pointed out that “after the application for international protection is submitted in accordance with Chapter II of Directive 2011/95, any third-country national or stateless person who fulfils the material conditions laid down by Chapter III of that directive has a subjective right to be recognised as having refugee status, and that is so even before the formal decision is adopted in that regard”. Indeed, the recognition of refugee status is a declaratory act (paras 49-54).
Therefore, the right of family reunification under Article 10 (3) (a) of the Family Reunification Directive cannot depend upon the moment where the national competent authorities formally adopt their decision recognizing the status as refugee, as this would mean submitting it to the functioning of the national administration. This would call into question the effectiveness of the Family Reunification Directive and thwart the specific protection for unaccompanied minor refugees, as well as the principle of equal treatment and legal certainty. In particular, such an interpretation would entail that two different unaccompanied children of the same age and who have applied at the same for the refugee status, would be treated differently with regards to their right to family reunification depending on how quick or slow the national authorities would process their application (paras 55-56).
The Court further pointed out that as “the duration of an asylum procedure may be relevant and that, in particular in periods of substantial surges in applications for international protection, the time laid down by EU law are often exceed it” making the right to family reunification depend upon the moment when the asylum procedure is closed would de facto have the effect of nullifying that right and the protection under Article 10 (3) (a) (para 57). Instead, national competent authorities should process applications for international protection made by unaccompanied minors within the shortest delay possible in order to comply with the rights of the child enshrined in the Charter of Fundamental Rights of the EU (hereinafter, the “Charter”) and the objectives of both the Qualification and Family Reunification Directives (para 58).
“Taking the date on which the application for international protection was submitted as that by reference which it is appropriate 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 taken processing the application for international protection or the application for family reunification” (para 60).
Finally, the Court did accept the argument of the Dutch government and the Commission that a time limit should apply. A ‘reasonable’ time would in principle be three months for the unaccompanied minor refugee to apply for family reunification after the decision on refugee status (para 61).
A & S falls within a series of recent sensitive cases where the Court is challenged to be proactive and deter Member States from thwarting the right to family reunification of refugees as a way to control the so-called ‘migratory crisis’ (see for instance cases C-380/17, K&B, and C-635/17, E, still pending before the Court).
In its judgment, the Court upheld children’s fundamental right to be reunited with their parents and rejected the Member States discretion on the matter. The Court further ties the process through which the refugee status is granted with the right to family reunification and sees with suspicion any administrative delays in processing unaccompanied minors applications for international protection as such delays can be easily used with the aim of nullifying their preferential right to family reunification.
In its children’s rights centred reasoning, the Court made sure that unaccompanied minors would be protected against the ‘negligence’ of the national competent authorities. Any delay in obtaining the refugee status would not discharge the Member States from the obligation to give a right to entry and residence to the parents of a young refugee who has applied for international protection before reaching the age of eighteen. The special protection for unaccompanied minor asylum-seekers under the Family Reunification Directive would therefore extend beyond the age of maturity if the person concerned is able to access the territory of a Member State, submit an application for the refugee status before turning eighteen and is successively successful in their application.
Accordingly, the national authorities henceforth would not be able to hide behind the slowness of their public administration to refuse to recognize the vulnerability of a child and deny them of the protection they are entitled to under the Family Reunification Directive. It is worthwhile to note that the Court made a clear reference to the child’s fundamental right under Article 24 (2) of the Charter which states that “in all action relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”. This reference was used in order to further stress the responsibility and obligation of the Member States to process in a timely fashion an unaccompanied minors application for refugee status. It is clearly in their best interests to have their application for international protection processed as soon as possible because this would allow them to resume their daily life and restore a personal relationship and direct contact with both parents as enshrined in Article 24 (3) of the Charter. The priority treatment of children’s applications for international protection would then ensure the respect of Article 24 (2) and (3) of the Charter.
Hopefully, this child’s rights centred ruling translates into a conscious effort from the Court to step up and set out an effective system of protection of children in migration irrespective of the ongoing political controversy and the sometimes too cautious approach of the Commission.