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By Professor Kees Groenendijk, Radboud University Nijmegen and Professor Elspeth Guild, Queen Mary University of London

 

Introduction

The human rights of children are universally proclaimed and the subject of solemn declarations by all levels of state officials. But, when it comes to unaccompanied minor asylum seekers, their status as children is all too often forgotten by European states which tend to focus exclusively on their status as asylum seekers. This trend is most clearly apparent in the refusal of so many European states to actually ban the detention of asylum seeking children. Instead, in their legislation (including EU legislation like Article 11 of reception conditions directive) they insert weasel phrases like “unaccompanied minors shall be detained only in exceptional circumstances. All efforts shall be made to release the detained unaccompanied minor as soon as possible.”

On 12 April 2018, the Court of Justice of the European Union upheld the human rights of children to be joined by their parents, rejecting siren calls to leave such matters to the discretion of Member States and their officials. In its ruling  in case C-550/16 A & S ,  the Court held namely that the provision of Directive 2003/86 about the family reunification of refugee unaccompanied children with their parents by means of visas (or residence permits) introduces an unquestionably positive obligation for the host Member State. The refugee unaccompanied children are entitled, under the conditions set out in this  directive, to have their first-degree relatives in direct ascending line reunified with them.

The Facts

A & S are the parents of a child (their daughter) who arrived in the Netherlands and applied for asylum there on 26 February 2014. However, on 2 June 2014 she reached the age of majority. She was granted asylum on 21 October 2014 by the Dutch authorities and issued a five year residence permit. A refugee organisation, on the young adult’s behalf, submitted applications for temporary residence permits for the girl’s parents and three minor brothers on 23 December 2014. The applications were rejected by the Dutch authorities on the ground that, when these were submitted, the girl was no longer a minor. She appealed against the refusal and the national court asked the CJEU to interpret article 2f of the Family Reunification Directive and, specifically which date, the one of entry into the Member state concerned or the one of the submission for family reunification, is determinative for qualifying a person as an unaccompanied minor within the meaning of the family reunification Directive, in case a minor has reached the age of majority in the course of the asylum procedure and before being granted refugee status.

The Law

Directive 2003/86 sets out the conditions for family reunification of third country nationals in the EU with their third country national family members. The discussed ruling is the first one delivered on the rights of refugees to family reunification. Two of pending cases related to refugees (C-380/17 (K & B) and C-635/17 (E)) are undoubtedly reflecting the prevailing controversy in some Member States about the refugees’ entitlement to family reunification especially in the case of those who arrived during the so-called “migration crisis”.

The directive only regulates family reunification for refugees, not for beneficiaries of subsidiary protection. However, many Member States do apply the directive also to beneficiaries of subsidiary protection (COM(2008)610 and EMN synthesis report on Family Reunification of Third-Country Nationals in the EU, April 2016, p. 6). Thus, Member States might hold a key to bypassing the directive’s provisions against asylum seekers’ interests: granting them only subsidiary protection, instead of recognising them as refugees. Whether such a practice that could indicate Member States’ underlying motive to limit family reunification would be lawful in refugee law and whether the different treatment in the directive and in national law is compatible with the ECtHR case law on Articles 8 and Article 14 of the ECHR, impose serious legal questions that remain to be answered.

The definition of an unaccompanied minor is found in Article 2(f) of the family reunification directive. According to this provision, ’unaccompanied minor’ means third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they entered the territory of the Member States.” For the purposes of the particular case, the Court did not have to consider the situation of minors who arrive accompanied by an adult and then are abandoned, or those who are taken care by an adult responsible by law or custom after arrival.

Thereafter, articles 9 to 12 apply in this case. First and foremost, these set out the principle according to which Member States shall recognise the right of refugees to family reunification in the same way as for third country nationals subject to the conditions of the directive. Whereas other provisions of the directive expressly permit Member States to exercise their discretion, such as Member States’ possibility to limit family reunification to refugees with family relationships that pre-date their arrival, Article 10(3) that applies to unaccompanied minors does not give the Member States any margin of discretion. It states “If the refugee is an unaccompanied minor, the Member States: (a) shall authorise the entry and residence for the purposes of family reunification of his/her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a) (…)”. Article 4 refers to the categories of family members admissible for family reunification with third country nationals who hold residence permits. According to Article 4(2)(a), Member States “may” admit parents of third country nationals who are not refugees, but there is no obligation to admit them under EU law.

The Court’s Judgment

The Court found that the applicable date for determining whether a refugee was an unaccompanied minor for the purposes of Article 2(f), and therefore entitled to family reunification with his or her parents, is that date on which he or she entered the state and the date on which he or she made the asylum application. As the date of the asylum application will be often the later, it will probably be most important. However, as a person becomes a refugee from the moment when the conditions precedent are fulfilled, that is to say he or she is outside his or her country of nationality and has a well founded fear of persecution on one of the five grounds mentioned in the Geneva Convention, there is an argument that the date of arrival is also crucial. A refugee is namely a refugee by reason of fulfilling the conditions and that status is merely recognised by the state as noted also by the Court at paragraph 53. In other words, as long as the minor makes an asylum application before his or her majority in the Member State, the family reunification entitlement in Article 9 still applies to his or her case. The parents must be allowed by the authorities to enter and reside in the Member States for the purpose of family reunification. According to Article 9, the privileged treatment of  Chapter III of the directive only applies after the refugee is recognised by the Member State. Asylum seekers are excluded from the scope of the directive.

Importantly, the Court at paragraph 41 of its judgment states: “It must be recalled that, in accordance with the need for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question (judgment of 26 July 2017, Ouhrami, C‑225/16, paragraph 38 and the case-law cited).” Because Articles 2(f) and 10(3)(a) make no reference to national law or Member States, the clear intention of the legislator was to exclude any discretion at national level with regards family reunification for unaccompanied refugee minors. Further, the Court states at paragraph 43 that Article 10(3)(a) contains a clearly defined right. It requires Member States to authorise family reunification of first degree relatives in the ascending line of an unaccompanied minor refugee without any margin of discretion.

Regarding the date, the Court notes that the directive does not explicitly determine the moment until which a refugee must be a minor. But the objective of the provision and the lack of state’s discretion mean that there must be a common determination provided by the Court. This cannot be left to the Member States as that would imply possible variations among them. The Netherlands government, relying on the Noorzia judgment argued that it is for Member States to define the relevant moment. The Commission positioned itself in favor of  the date of application for family reunification, while the Polish government suggested the date of the decision on that application (paragraph 30). All three suggestions would have aborted the right to family reunification of the young refugee. However, the Court held that the date cannot be that of the decision on an asylum application, implicitly rejecting later dates, as that would also vary depending on the alacrity with which the Member State’s authorities determine claims.

Such a position would call into question the effectiveness of the provision in the view of the Court (paragraph 55). The Court considers two hypothetical unaccompanied refugees who on the same date seek asylum in two different Member States with very different processing times. If the date for family reunification depended on the date of recognition, the one who applied in the state with an efficient asylum determination system might still be a minor at the date of determination and therefore get the benefit of family reunification, while the other one would not. Further, the Court makes it clear that it is fully aware of the risk of states dragging out the asylum determination process for unaccompanied minors, if the date when they become eligible for family reunification depends on the date of determination. This is effectively a warning by the Court that it is aware of possible “mala fides” by Member States seeking to undermine the family reunification right of unaccompanied minor refugees if given the option of using the date of recognition as the decisive one for eligibility for family reunification.

The Court states “instead of prompting national authorities to treat applications for international protection from unaccompanied minors urgently in order to take account of their particular vulnerability, a possibility which is already explicitly offered by Article 31(7)(b) of Directive 2013/32, such an interpretation could have the opposite effect, frustrating the objective pursued both by that directive and by Directives 2003/86 and 2011/95 of ensuring that, in accordance with Article 24(2) of the Charter of Fundamental Rights , the best interest of the child is in practice a primary consideration for Member States in the application of those directives” (paragraph 58). The Court’s concern about unlawful practices in some Member States is apparent. For this reason, and to save the Member States from the temptation of unlawful practices in respect of children, it concludes that the date for determining the family reunification right of unaccompanied minor refugees are the dates of their arrival and asylum application.

In answer to the concerns expressed by the Dutch authorities and (to their shame) the Commission about tardy applications for family reunification and the need for clarity regarding how quickly an unaccompanied refugee minor must seek family reunification, the Court notes that the directive permits Member States to require that the application be submitted within three months of the state’s recognition of refugee status (paragraph 61). However, this cut off date is stated to be in principle leaving thus some leeway for arguments regarding unavoidable or excusable delay (for instance the whereabouts of the parents may not come to light until after the three months period). The court does not go into this issue this time however. It will have to deal with it in the pending case C-380/17-K & B. The opinion of AG Mengozzi in that case is planned for 14 June 2018.

Comments

The recognition of the right to family reunification of unaccompanied minor refugees was an important innovation of the directive, adopted unanimously by Member States in 2003. For most Member States this was a novelty, obliging them to amend their national law. This case illustrates how authorities in Member States looked for ways to reduce the actual implementation of this right.  

This judgment diminishes the possibilities for authorities of Member States to nullify the right to family reunification of young refugees by postponing decision making on their request for asylum. Considering the treatment of unaccompanied minor asylum seekers in some Member States, this is a most welcome ruling. On the very day of the judgment (12 April 2018) the Guardian reported that French border guards at the French-Italian border near Ventimiglia changed the birth year in documents on young asylum seekers in order to be able to return them to Italy. The special fear for unaccompanied minor asylum seekers is hard to understand. If the father of this young refugee in the ruling concerned would have managed to flee his country of origin and was recognized as a refugee, he would be entitled to family reunification with his spouse and minor children on the basis of directive 2003/86.

In this judgment the Court reminds national judges that, when applying and interpreting EU migration law they should not only look at the text, general scheme and objective of a directive and its regulatory context, but also at the general principles of EU law (paragraph 48), the EU Charter (paragraph 58) and, finally at the consequences of their interpretation in real life (paragraph 55-60). Rather than only focussing on abstract legal dogmatics, the Court has a clear eye for the effects of different interpretation on the right to family reunification in practice.

The Court in A & S confirms its constant case law since Parliament/Council (C-540/03, Chakroun (C-578/08,) and O and Others (C-356/11 and C-357/11 that the aim of the directive is “to promote family reunification” (paragraphs 44 and 55) and that it grants a right to family reunification with the spouse and minor children in Article 4(1) and to reunification with parents in Article 10(3)(a) without any margin of appreciation being available to Member States. The EU law principles of equality and legal certainty play a central role in the reasoning of the Court under paragraphs 41, 51, 55 and 59. These references to the relevance of basic principles, like the reference to Article 24(2) EU Charter on the rights of children, are welcome reminders in an area where administrative practice is often dominated by fears, distrust and administrative convenience.

In its statement that the meaning and scope of a provision of EU law which makes no express reference to the law of the Member States normally must be given an autonomous and uniform interpretation throughout the EU in paragraph 41, the Court refers to its judgment in Ouhrami (C-225/16 on the Return Directive) which in turn refers to a similar statement in Kozlowski (C-66/08, par. 42) on free movement of Union citizens and in judgments on other areas of Union law. This statement is of general applicability. It applies also to other autonomous concepts in the Family reunification directive and in other migration and asylum measures, such ‘fraud’ and ‘real marital or family relationship’ in Article 16 of directive 2003/86.  

Two institutional comments

The referring Dutch District Court in its reference to the Court of Justice mentioned that the Raad van State (the highest administrative court in the Netherlands) repeatedly held that Dutch authorities, when applying Article 2(f) of the Directive, could take into account that the refugee had attained the age of majority after arriving in the Netherlands (and on that ground refuse the parent’s applications for family reunification) (paragraph 26). In its reference, the District Court extensively argued why it was not convinced by the interpretation of Article 2(f) by the Raad van State. The District Court applied the Cilfit-criteria and decided to refer the issue to the Court of Justice, which held the position of the District Court to be the correct one. This judgment illustrates how a first instance national court may use the reference to test an interpretation of EU law by a superior court, which it deems to be unconvincing. Article 267 TFEU by granting all national courts the competence to request a preliminary ruling avoids the situation that superior national courts can block or monopolize access to the Court of Justice and, thus, prevent or postpone correct and uniform interpretation of Union law.

Students of the Migration Law Clinic of the Vrije Universiteit in Amsterdam, under supervision of their teachers, wrote an expert opinion on the questions referred in this case. The lawyer of the parents in the described judgement attached that opinion to their statement to the Court. The Court took note of this opinion and in a letter asked the Dutch and Polish Government and the European Commission to respond during the oral hearing on 14 September 2017 to the argumentation analyzed therein. The ECtHR in Strasbourg regularly allows interested NGOs or Law Centers inside or outside academia to file an amicus curiae statement in pending cases ( see rule 44(3)(a) Rules of Procedure of the ECtHR). On the contrary, in Luxembourg the rules on who can participate in the court procedures are far stricter and less influenced by Anglo-Saxon legal traditions which in Strasbourg were prevalent from the beginning. Did then the Court of Justice in this case create a limited first opportunity for interested organisations or experts to assist it as an informal amicus curiae?