OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 9 March 2023 (1)
Case C‑1/23 PPU
X,
Y,
A, legally represented by X and Y,
B, legally represented by X and Y
v
État belge
(Request for a preliminary ruling
from the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium))
(Reference for a preliminary ruling – Border controls, asylum and immigration – Immigration policy – Right to family reunification – Directive 2003/86/EC – Rules of a Member State allowing a sponsor’s family members to submit an application only at the competent diplomatic post of that State – Impossibility for those family members to travel to that diplomatic post)
1. This request for a preliminary ruling which is the subject matter of this Opinion concerns the interpretation of Article 5(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, (2) Articles 23 and 24 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, (3) and Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2. The request has been made in proceedings between, on the one hand, Ms X and Mr Y and their minor children A and B (together, ‘the applicants in the main proceedings’) and, on the other hand, the État belge (Belgian State) concerning the latter’s refusal to process the application for a visa for the purposes of family reunification submitted by Ms X and her children.
I. Legal framework
A. European Union law
3. Recitals 2, 4, 6, 8 and 13 of Directive 2003/86 read as follows:
‘(2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.
…
(4) Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty.
…
(6) To protect the family and establish or preserve family life, the material conditions for exercising the right to family reunification should be determined on the basis of common criteria.
…
(8) Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification.
…
(13) A set of rules governing the procedure for examination of applications for family reunification and for entry and residence of family members should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned.’
4. According to Article 1 thereof, the purpose of Directive 2003/86 is ‘to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States’.
5. Points (c) and (d) of Article 2 of that directive define, respectively, the concepts of ‘sponsor’ and ‘family reunification’: ‘sponsor’ meaning ‘a third country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her’, and ‘family reunification’ meaning ‘the entry into and residence in a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry’.
6. Article 3 of Directive 2003/86 provides, in paragraph 1 thereof, that that directive is to apply ‘where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third country nationals of whatever status’, and, in paragraph 5 thereof, that the directive ‘shall not affect the possibility for the Member States to adopt or maintain more favourable provisions’.
7. Article 4(1)(a) and (b) of Directive 2003/86 provides:
‘1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:
(a) the sponsor’s spouse;
(b) the minor children of the sponsor and of his/her spouse …’
8. Chapter III of Directive 2003/86, entitled ‘Submission and examination of the application’, consists solely of Article 5 which, in so far as is relevant to the present proceedings, is worded as follows:
‘1. Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members.
2. The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified copies of family member(s)’ travel documents.
If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary.
…
3. The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides.
…
4. The competent authorities of the Member State shall give the person, who has submitted the application, written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged.
…
5. When examining an application, the Member States shall have due regard to the best interests of minor children.’
9. Article 7 of that directive, contained in Chapter IV, entitled ‘Requirements for the exercise of the right to family reunification’, provides in paragraph 1(a), (b) and (c) thereof that, when the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has ‘accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State concerned’, ‘sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned for himself/herself and the members of his/her family’ and ‘stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned’.
10. Chapter V of Directive 2003/86 is specifically concerned with ‘Family reunification of refugees’. Article 11 of that directive, which is contained in that chapter, provides, in paragraph 1 thereof, that ‘Article 5 shall apply to the submission and examination of the application, subject to paragraph 2 of this Article’. Article 11(2) provides that ‘where a refugee cannot provide official documentary evidence of the family relationship, the Member States shall take into account other evidence, to be assessed in accordance with national law, of the existence of such relationship’ and that a ‘decision rejecting an application may not be based solely on the fact that documentary evidence is lacking’. Moreover, the first subparagraph of Article 12(1) of that directive, which is also contained in Chapter V thereof, provides that ‘by way of derogation from Article 7, the Member States shall not require the refugee and/or family member(s) to provide, in respect of applications concerning those family members referred to in Article 4(1), the evidence that the refugee fulfils the requirements set out in Article 7’, while the third subparagraph of Article 12(1) provides that ‘Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after the granting of the refugee status’.
B. Belgian law
11. Article 10 of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals) (4) (‘the Law of 15 December 1980’), which transposes, inter alia, Article 12(1) of Directive 2003/86, provides:
‘1. Subject to Articles 9 and 12, the following persons shall be granted leave to reside in the Kingdom for more than three months as of right:
…
(4) the following family members of a foreign national who, for at least 12 months, has been admitted or granted leave to reside in the Kingdom for an unlimited period, or who, for at least 12 months, has been granted leave to become established there. This 12-month period shall be waived if the marital relationship or the registered partnership existed before the arrival of the foreign national who is being joined in the Kingdom or if they have a common minor child. Those conditions with regard to the nature of the stay and the duration of the stay do not apply if it concerns the family members of a foreign national who, in accordance with the second or third subparagraph of Article 49(1) or Article 49/2(2) or (3), was granted permission to reside in Belgium as a beneficiary of international protection status:
– his foreign spouse …;
– their children, who are coming to live with them before they have reached the age of 18 years …
…
2. The foreign nationals referred to in paragraph 1, first subparagraph, points (2) and (3), must provide evidence that they have stable and regular means of subsistence which are sufficient to maintain themselves so as to avoid becoming a burden on the public authorities.
The foreign nationals referred to in paragraph 1, first subparagraph, points (4) to (6), must provide evidence that the foreign national who is being joined has accommodation adequate to house the member(s) of his or her family applying to join him/her and which satisfies the conditions laid down for a building leased as a principal place of residence, as provided for in Article 2 of Book III, Title VIII, Chapter II, Section 2 of the Civil Code, as well as sickness insurance in respect of risks in Belgium for himself or herself and the members of his or her family …
The foreign national referred to in paragraph 1, first subparagraph, points (4) and (5), must also provide evidence that the foreign national who is being joined has stable and regular means of subsistence, as laid down in paragraph 5, which are sufficient to maintain himself or herself and the members of his or her family so as to avoid their becoming a burden on the public authorities. That condition does not apply if the foreign national is joined only by the members of his or her family referred to in paragraph 1, first subparagraph, point 4, indents 2 and 3.
The foreign national referred to in paragraph 1, first subparagraph, point (6) must provide evidence that the foreign national who is being joined has stable and regular means of subsistence, as laid down in paragraph 5, which are sufficient to maintain himself or herself and the members of his or her family so as to avoid their becoming a burden on the public authorities.
Subparagraphs 2, 3 and 4 shall not apply to the family members of a foreign national recognised as a refugee … where the family ties, relationship through marriage or registered partnership predate the entry of that foreign national into the Kingdom, provided that the application for residence on the basis of that article was lodged within one year of the decision recognising the refugee status of or granting subsidiary protection to the foreign national who is being joined.
…’
12. Article 12bis(1) of the Law of 15 December 1980, which transposed Article 5(1) of Directive 2003/86 into Belgian law, provides:
‘A foreign national who declares that he or she is in one of the cases referred to in Article 10 must submit his or her application to the competent Belgian diplomatic or consular representative for the place of his or her residence or stay abroad.
He or she may, however, submit his or her application to the [Belgian] local authority of the place where he or she is residing in the following cases:
(1) if he or she has already been granted permission or authorisation to reside in the Kingdom for more than three months in another capacity and submits all the evidence referred to in paragraph 2 before the end of that permission or authorisation;
(2) if he or she is authorised to reside for a maximum of three months and, where required by law, has a valid visa to enter into a marriage or partnership in Belgium, if that marriage or partnership was actually entered into before that authorisation ended and if he or she submits all the evidence referred to in paragraph 2 before the end of that authorisation;
(3) if he or she is, in exceptional circumstances, prevented from returning to his or her country to apply to the competent Belgian diplomatic or consular representative for the visa required under Article 2 and submits all the evidence referred to in paragraph 2 and proof of his or her identity;
(4) if he or she is authorised to reside for a maximum of three months and is a minor child, as referred to in Article 10, paragraph 1, first subparagraph, point (4), indents 2 and 3, or if he or she is the parent of a minor recognised as a refugee or a minor benefiting from subsidiary protection, as referred to in Article 10, paragraph 1, first subparagraph, point (7).’
II. The main proceedings and the question referred for a preliminary ruling
13. Ms X and Mr Y are Syrian nationals. They were married in 2016 in Syria. Two children, A and B, were born of that marriage, in 2016 and 2018 respectively. Mr Y claims to have left Syria in 2019 via Türkiye, while his wife and children remained in the town of Afrin in north-west Syria. The referring court points out that those facts are not disputed by the Kingdom of Belgium. The referring court also states that it is common ground that Ms X and the two children she had with Mr Y were still in the town of Afrin when the order for reference was made.
14. On 25 August 2022, Mr Y was recognised as a refugee in Belgium.
15. By email of 28 September 2022 addressed to the Office des étrangers (Immigration Office) (Belgium) (‘the email of 28 September 2022’), the lawyer for the applicants in the main proceedings submitted an application for family reunification on behalf of Ms X and the children A and B, so that they could join Mr Y in Belgium. In that email, the lawyer for the applicants in the main proceedings stated that Ms X and the children ‘are in exceptional circumstances which prevent them in practice from travelling to a Belgian diplomatic post in order there to submit an application for family reunification with their husband and father’ and that it was for that reason that the application was being submitted by email. An original copy of that application, together with supporting documents, was sent to the Immigration Office by registered mail on 29 September 2022.
16. On 29 September 2022, the Immigration Office acknowledged receipt of the email of 28 September 2022 and replied to the lawyer for the applicants in the main proceedings that ‘it is not possible to submit an application for a visa for the purposes of family reunification by email’, while at the same time inviting him ‘to contact the Belgian embassy to see what can be done’ (‘the email of 29 September 2022’). It is apparent from the national file that, by email of 11 October 2022, the lawyer for the applicants in the main proceedings again contacted the Immigration Office and stated that the application for family reunification submitted on behalf of Ms X and the children A and B was admissible. By email of 12 October 2022, the Immigration Office responded, referring to its email of 29 September 2022 and stating that this would be their ‘final response in relation to this matter’.
17. By interlocutory application of 9 November 2022, the applicants in the main proceedings brought before the referring court an action against the Belgian State seeking, inter alia, an order that the Belgian State register the visa application of Ms X and the children A and B on the basis of Article 10(1)(4) of the Law of 15 December 1980. They argue that the refusal to allow them to submit their application for family reunification in Belgium effectively makes their reunification impossible and therefore deprives Directive 2003/86 of its effectiveness.
18. The referring court, after finding that Mr Y, who has been recognised as a refugee, cannot travel to Syria and that it is impossible for Ms X and the children A and B to submit an application for family reunification at a Belgian diplomatic post, states that, in those circumstances, refusing to allow the applicants in the main proceedings to submit an application for family reunification in Belgium constitutes an interference with their family life. It finds that the legality of such a refusal ‘follows from Article 5(1) of Directive 2003/86 and is therefore not open to challenge’ and that it remains only to be examined whether that refusal undermines the effectiveness of that directive or whether it infringes the fundamental rights to which recital 2 of that directive refers. The referring court states that, in order to justify its refusal to allow Ms X and the children A and B to submit their application for family reunification in Belgium, the Belgian State maintains that their presence at a Belgian diplomatic post in Türkiye, Lebanon or Jordan is essential to enable their identity to be checked using their biometric identifiers. While it considers that that aim of identifying the beneficiaries of family reunification is legitimate, the referring court asks whether the means used by the Belgian State to achieve that aim – that is to say requiring the presence of the family members at a diplomatic post from the start of the procedure – comply with the principle of proportionality required by Article 52(1) of the Charter.
19. In that context, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is the legislation of a Member State which only allows family members of a recognised refugee to submit an application for entry and residence at a diplomatic post of that State, even in a situation where it is impossible for those family members to travel to that post, compatible with Article 5(1) of [Directive 2003/86], read, where appropriate, in conjunction with the objective pursued by that directive, to promote family reunification, Articles 23 and 24 of [Directive 2011/95], Articles 7 and 24 of the [Charter] and [with] the duty to ensure the effectiveness of EU law?’
20. The referring court has requested that the Court deal with the present case under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court.
III. Procedure before the Court
21. The Third Chamber of the Court decided, on 11 January 2023, that the present case should be dealt with under the urgent preliminary ruling procedure, pursuant to Article 107(1) of the Rules of Procedure of the Court. The applicants in the main proceedings, the Belgian Government, the Council of the European Union and the European Commission submitted written observations. Those interested parties and the German, Spanish, French and Netherlands Governments presented oral argument at the hearing held on 1 March 2023.
IV. Analysis
A. The Belgian Government’s application for a declaration that there is no need to adjudicate
22. In their written observations, the applicants in the main proceedings and the Belgian Government informed the Court that, by email of 3 February 2023 (‘the email of 3 February 2023’), the Immigration Office had notified counsel for the applicants in the main proceedings that Ms X and the children A and B were authorised to submit their applications for a visa for the purpose of family reunification without having to travel to a Belgian diplomatic or consular post ‘at that stage’. The email of 3 February 2023, the entire text of which was produced by the applicants in the main proceedings as an annex to their written observations, reads as follows:
‘We are once again contacting you in relation to this case further to your registered letter dated 29 September 2022, received on 3 October 2022, and your email of 11 October 2022. To our knowledge, your clients have not, following our email of 12 October 2022, contacted any Belgian diplomatic or consular post. In view of the very particular circumstances of this case, I have decided to authorise, on an exceptional basis, your clients to submit their visa applications without their having, at this stage, to present themselves at a Belgian diplomatic or consular post. However, since the applications must be submitted at such a post, it is essential that your clients select the Belgian embassy or consulate general to which they wish to submit their visa applications and then notify the Immigration Office accordingly. The fact that your clients do not have to report in person to the post of their choice in order to submit the applications does not exempt them from the requirement to complete visa application forms, pay the visa fees (where payable) and submit a complete dossier (or, if the dossier is incomplete, an explanatory document stating the specific reasons why they are unable to submit a complete dossier). By way of exception, I invite you to send the dossiers relating to submission of the visa applications to the Immigration Office. The applications will be forwarded to the Belgian embassy or consulate general selected by your clients so that the applications can be registered there and, where appropriate, the selected post can issue an acknowledgement of receipt (if the dossier is complete) …’ In the same email, the Immigration Office also stated that Ms X and the children A and B should, in any case, present themselves at the chosen diplomatic or consular post ‘potentially in the course of the procedure if the examination of the applications so requires (for an interview, verification of their identities or any DNA tests) and, in any event, in order to have the visas issued to them (if they are granted visas)’.
23. The Belgian Government submits, as a principal argument, that, since it is clear from the email of 3 February 2023 that Ms X and the children A and B have been authorised by the Immigration Office to submit their visa applications without having to report in person to a Belgian diplomatic or consular post, the answer to the question referred is no longer necessary for the resolution of the dispute, with the result that there is no need to rule on the request for a preliminary ruling.
24. In that regard, it should be noted that it is clear from the order for reference that the applicants in the main proceedings requested that the referring court order the Belgian State to register, on the basis of Article 10(1)(4) of the Law of 15 December 1980, the application for a visa for the purposes of family reunification which Ms X and the children A and B submitted to the Immigration Office by email of 28 September 2022 and a copy of the original of that application to be forwarded to that office by registered letter of 29 September 2022 (‘the application of 28 and 29 September 2022’). It is also apparent from the order for reference that the applicants in the main proceedings requested that the referring court impose a daily penalty payment for any delay in registering that application.
25. It should be noted, as do the applicants in the main proceedings, that the email of 3 February 2023 makes no reference whatsoever to the application of 28 and 29 September 2022, but merely informs the lawyer for the applicants in the main proceedings that Ms X and the children A and B are authorised to submit a (new) application for a visa for the purposes of family reunification without travelling to a Belgian diplomatic or consular post. Consequently, that email cannot be interpreted as a withdrawal, after reconsideration, of the refusal to register the application of 28 and 29 September 2022, communicated to counsel for the applicants in the main proceedings by email from the Immigration Office of 29 September 2022 and confirmed by email from that office of 12 October 2022. (5)
26. In those circumstances, the question referred for a preliminary ruling by the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)) is still entirely relevant to the resolution of the dispute. The Court’s answer to that question will enable the referring court both to assess the validity of the arguments put forward by the applicants in the main proceedings with a view to challenging the legality of that refusal of registration in the light of EU law and to decide the merits of the applications made by them.
27. Moreover, in the light of its content and the grounds for it, that answer may also provide the referring court with information relevant for addressing the subsequent question arising as a consequence of the email of 3 February 2023, that is to say whether the failure to comply with the formalities which, according to the Immigration Office, Ms X and the children A and B should have completed in order to be able to submit an application for a visa for the purposes of family reunification without travelling in person to a Belgian diplomatic or consular post is in itself capable of resulting in the rejection of the claims of the applicants in the main proceedings or whether the subsequent rectification of the application of 28 and 29 September 2022 must in any event be permitted.
28. Finally, I would add that, if, on the basis of the Court’s answer to the question referred, the referring court were to consider that the application of 28 and 29 September 2022 was validly lodged and must – where appropriate after rectification – be registered, the obligation to examine it on the part of the competent authority, namely the Immigration Office, arose, and the period laid down in Article 5(4) of Directive 2003/86 started to run, on 29 September 2022 at the latest. The date on which the application for a visa for the purposes of family reunification made by Ms X and the children A and B is regarded as having been lodged is therefore of some importance for them. This is particularly true in view of the situation they are currently facing in their country of origin, not only because of the continuing armed conflict in the area in which they reside, (6) but also, according to the information provided by their representative at the hearing, as a result of the earthquake which recently struck Türkiye and northern Syria. In those circumstances, it is clear that any undue delay in the processing of their application may unjustifiably prolong their state of insecurity and precarity.
29. For all of the reasons set out above, I therefore propose that the Court reject the Belgian Government’s application for a declaration that there is no need to adjudicate.
B. The question referred for a preliminary ruling
30. By its question, the referring court asks the Court, in essence, whether Article 5(1) of Directive 2003/86, read in conjunction with Articles 7 and 24 of the Charter, must be interpreted as precluding legislation of a Member State which provides that the family members of a recognised refugee are required to submit their application for family reunification in person at a diplomatic post of that Member State, even where it is impossible for them to travel to that post.
1. Preliminary observations
31. As a preliminary point, it should first of all be observed that, although the wording of the question referred for a preliminary ruling also refers to Articles 23 and 24 of Directive 2011/95, (7) those provisions do not appear to be relevant to the answer to be given to that question. They cover a situation in which family members are present with the refugee in the territory of the Member State concerned, (8) whereas, in the main proceedings, Ms X and the children A and B are still in their third country of origin.
32. It is true that, in the judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity), (9) the Court held, inter alia, that Article 23(1) of Directive 2011/95, by laying down in general terms an obligation for Member States to ensure that the family unity of the beneficiary of international protection is maintained, recognises, on the one hand, the close connection between the necessary measures for the protection of the refugee’s family and the maintenance of its unity and, on the other hand, the rationale of international protection. However, since this case concerns a situation in which the restoration of family unity through family reunification is sought, that connection is given concrete expression by the provisions of Directive 2003/86. It is therefore, in my view, on the basis of those provisions alone that it is necessary to answer the question referred by the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)).
33. Next, again as a preliminary point and in order to dispel any ambiguity as to the meaning and scope of the question referred, it is important to point out that it relates solely to the requirement, in particular for family members of a recognised refugee, to travel in person to a diplomatic or consular post of the Member State concerned in order there to submit an application for a visa for the purposes of family reunification for the purposes of Article 5(1) of Directive 2003/86. Although the discussion at the hearing extended so far as to cover more generally the requirement – considered to be of primary importance by the Member States present – that family members appear in person at such a diplomatic or consular post at some stage of the reunification procedure, in order to allow their biometric data to be recorded and in order to carry out the necessary checks for the purposes of both security and fraud prevention, the Court is nonetheless called upon to rule, in the present case, only on the question whether EU law precludes legislation of a Member State or an administrative practice of that State which systematically and without exception requires such an appearance from the stage of submitting the application for a visa for the purposes of family reunification.
34. Finally, it should be recalled that it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of provisions of national law. The Court must take account, under the division of jurisdiction between the Courts of the European Union and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set. (10) In its request for a preliminary ruling, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)) states that it is compulsory under Belgian law to submit the application for a visa for the purposes of family reunification in person and that there are no derogations from that obligation, even where the sponsor is a refugee. It is therefore that interpretation of Belgian law and administrative practice which must be the starting point for the Court’s analysis, even though it is essentially contested by the Belgian Government.
2. The objective of Directive 2003/86 and the rights which the applicants derive therefrom
35. It is clear from the settled case-law that the objective pursued by Directive 2003/86 is to promote family reunification and that that directive also aims to give protection to third-country nationals, in particular minors. (11) In order to pursue that objective, Directive 2003/86, as specified in Article 1 thereof, determines the conditions for exercising the right to family reunification by third-country nationals residing lawfully in the territory of the Member States. (12)
36. According to recital 8 of Directive 2003/86, that directive also aims to afford greater protection to refugees, since their situation requires special attention on account of the reasons which obliged them to flee their country and which prevent them from leading a normal family life there, they may have been separated from their family for a long period of time before being granted refugee status, and it is often impossible or dangerous for refugees or their family members to produce official documents, or to contact the authorities of their country of origin. (13) It is on that basis that that directive lays down more favourable conditions for refugees for exercising their right to family reunification. (14)
37. The Court has also repeatedly held that Article 4(1) of Directive 2003/86 imposes on the Member States precise positive obligations, with corresponding clearly defined rights. It requires them, in the cases determined by that directive, to authorise the family reunification of certain members of the sponsor’s family – who include, in accordance with Article 4(1)(a) and (b) of that directive, the sponsor’s spouse and the couple’s minor children – without having a discretion in that regard. (15)
38. The positive obligations incumbent on the Member States under Directive 2003/86 exist primarily in relation to the sponsor personally, in his or her capacity as a third-country national residing lawfully in the territory of the Member States. It follows that Mr Y, in his capacity as a sponsor within the meaning of Article 2(c) of Directive 2003/86, has an individual right, to be exercised under the conditions laid down by that directive, to have Ms X and the children A and B join him in Belgium.
39. However, I consider that Directive 2003/86 also imposes certain positive obligations on the Member States vis-à-vis the sponsor’s family members listed in Article 4(1)(a) to (d) of that directive who fulfil the conditions laid down by that provision. Although they are not entitled to family reunification in the same way as the sponsor, they are nevertheless covered by that directive as indirect beneficiaries of the rights conferred on the sponsor. Accordingly, in my view, in their respective capacities as Mr Y’s spouse and the couple’s minor children, Ms X and the children A and B enjoy, pursuant to Directive 2003/86 and under the conditions laid down therein, at the very least a right to ensure that the exercise by Mr Y of the right to family reunification which he derives from that directive is not unduly impeded.
40. As the submission of an application for entry and residence to the competent authorities of the Member State concerned, accompanied by the supporting documents set out in Article 5(2) of Directive 2003/86, is, in accordance with Article 5(1) thereof, a necessary precondition for the exercise of that right, the applicants in the main proceedings also enjoyed a right not to be unduly deprived of the real and concrete possibility of submitting such an application. More specifically, as they argued before the referring court, the applicants in the main proceedings derive from Directive 2003/86 a right to submit an application for family reunification and to have their application registered and examined by the Belgian authorities in accordance with the conditions laid down by that directive.
41. That said, since Article 5(1) of that directive does not (or at least does not completely) harmonise, as will be seen below, the practical arrangements for lodging applications for entry and residence with a view to family reunification, but leaves it to the Member States to establish those arrangements, the applicants in the main proceedings were required to comply with the relevant provisions of Belgian law, which, with certain exceptions not applicable to the situation of Ms X and the children A and B, provide that such an application must be submitted in person by the members of the sponsor’s family to the competent Belgian diplomatic or consular representative for the place of residence or stay abroad.
42. Contrary to what the Belgian State argued in the main proceedings, the issue here is whether, by not providing for exceptions to the rule that applications for family reunification must be submitted in person, where it is impossible for the persons concerned to comply with that rule, the Belgian legislature has used the discretion given to it by Article 5(1) of Directive 2003/86 in a manner consistent with the objectives of that directive and with the fundamental rights recognised by the Charter which the directive is intended to implement.
43. It is therefore appropriate, at this stage, to examine the scope and limits of that discretion.
3. The scope and limits of the discretion left to Member States by Article 5(1) of Directive 2003/86
44. As I have already pointed out, Directive 2003/86 does not fully harmonise the procedure for submitting an application for a visa for the purposes of family reunification, but merely provides, according to Article 5(1) thereof, that Member States are to determine whether that application ‘shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members’ and, according to Article 5(2) thereof, that that application is to be accompanied ‘by documentary evidence of the family relationship [with the sponsor] and of compliance with the conditions laid down in [that directive], as well as certified copies of family member(s)’ travel documents’.
45. It is apparent from the travaux préparatoires for Directive 2003/86, to which both the Commission and the applicants in the main proceedings refer, that the Commission’s proposal for a directive initially provided that the application for family reunification was to be filed by the sponsor, who, already being resident, was presumed to ‘find it easiest to handle the administrative formalities as he will be familiar with the language of the country and the practices of national administrative authorities’. (16) That proposal was therefore intended to facilitate the exercise of the right to family reunification from the time of submission of the application. Accordingly, the preferred option was to allow an application to be made directly to the competent administration of the Member State concerned by the family member who was, in principle, in the best position to complete that first stage of the procedure. Following an amendment by the Council, the original proposal was amended and a second option was introduced, for those Member States which desired it, that is to say the possibility of providing that the application for family reunification must be submitted from abroad by the sponsor’s family members. (17) In the amended proposal, the Commission explained that the new wording was intended to allow ‘the two types of procedures applied by the Member States to be reconciled’. (18) Before the Court, the Commission explained that the amendment had been intended to allow Member States to organise interviews with the persons concerned and investigations for the purposes of effectively combatting fraud relating to the identity of the applicants and to the authenticity of the relationships which they claimed to have with the sponsor.
46. According to the wording of Article 5(1) of Directive 2003/86 which was ultimately adopted, it is therefore for the Member States to determine both the person responsible for lodging such an application and the authorities competent to receive it, as well as the formalities to be complied with.
47. It should be stated at this point that, contrary to what the referring court asserts, and as the Council argues, the fact that the EU legislature has left the Member States discretion as regards determination of the procedure for submitting applications for family reunification does not mean that the legality of a refusal to register such an application, on the ground of a failure to comply with the rules laid down in that regard by the Member State concerned, automatically follows from Article 5(1) of Directive 2003/86 and that that refusal is not open to challenge. Rather, the legality of such a decision depends on the manner in which that Member State used that discretion.
48. This having been made clear, the Member States’ discretion in implementing Article 5(1) of Directive 2003/86 is restricted, in my view, by three sets of limits.
49. The first is the requirement to respect the purpose and spirit of Directive 2003/86.
50. The Court has repeatedly held that authorisation of family reunification is the ‘general rule’ (19) and that any leeway given to the Member States by Directive 2003/86 ‘must not be used by them in a manner which would undermine the objective and effectiveness of that directive, which is to promote family reunification’. (20) Accordingly, the discretion left to the Member States by Article 5(1) of Directive 2003/86 cannot, without undermining the objective of that directive and its effectiveness, be exercised in a manner which hinders or makes excessively difficult or impossible the submission of an application under that provision and, consequently, the exercise of the right to family reunification.
51. A second set of limits is based on respect for fundamental rights.
52. It is apparent from recital 2 of Directive 2003/86 that that directive recognises the fundamental rights and observes the principles enshrined in the Charter. The Court has repeatedly held that the provisions of that directive must be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter. More specifically, Article 7 of the Charter, which recognises inter alia the right to respect for family life – of which the right to family reunification constitutes a specific aspect (21) – must, in the Court’s view, be read in conjunction with the obligation to have regard to the child’s best interests, set out in Article 24(2) of the Charter, and with account being taken of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with his or her parents. (22) In that context, the Court has also recalled the importance of certain international instruments, including, in particular, the Convention on the Rights of the Child, (23) Article 9(1) of which provides that States Parties are to ensure that a child is not to be separated from his or her parents against their will, and Article 10(1) of which states that it follows from that obligation that applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification are to be dealt with by States Parties in a positive, humane and expeditious manner. (24)
53. More generally, under Article 51(1) of the Charter, it is incumbent on Member States, when they are implementing EU law, including therefore when they use their discretion in transposing a directive, to respect the rights and observe the principles laid down by the Charter and to promote the application thereof. (25) Moreover, under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms, as well as the principle of proportionality, with the result that ‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
54. National legislation which results in the removal of a person from a country where close members of his or her family are living, including by preventing a family reunification which satisfies the required substantive conditions, may amount to an infringement of the right to respect for family life (26) and must therefore, in order to be in compatible with the Charter, comply with the conditions laid down in Article 52(1) of the Charter, referred to above.
55. The European Court of Human Rights (‘the ECtHR’) reached a similar conclusion in interpreting Article 8 of the ECHR, which has, in essence, the same content as Article 7 of the Charter. Although, as the Belgian Government correctly points out, that court has stated that the ECHR, and in particular Article 8 thereof, does not guarantee the right of a foreign national to enter or reside in a particular country, the ECtHR nevertheless systematically reviews the proportionality of measures that constitute obstacles to family reunification, which are regarded as limitations on the right to respect for family life enshrined in that article. Accordingly, it recently held that, in a case which concerns family life as well as immigration, ‘the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest, and is subject to a fair balance that has to be struck between the competing interests involved’, with the best interests of children being afforded ‘significant weight’ in that context. (27) It further stated that the decision-making process relating to an application for family reunification must be attended by ‘the guarantees of flexibility, promptness and effectiveness required in order to secure the right of the persons concerned to respect for their family life under Article 8 of the [ECHR]’. (28) In particular, with regard to the family reunification of refugees, the ECtHR has repeatedly observed that ‘family unity is an essential right of refugees and that family reunion is an essential element in enabling persons who have fled persecution to resume a normal life’, and pointed out that ‘there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens’. (29)
56. Finally, a third set of limits on the leeway given to the Member States by Article 5(1) of Directive 2003/86 derives, in my view, from the obligation imposed on Member States to assess each situation on a case-by-case basis when implementing that directive. By virtue of that obligation, which the Court has derived from Article 17 of that directive, (30) and which is of cross-cutting application to all decision-making that falls within its scope, it is for the Member States to ensure that, in each individual case, the competent national authorities make a case-by-case assessment of the situation of the persons concerned which takes account of all the relevant aspects and, where appropriate, pays particular attention to the interests of the children and to promoting family life. (31)
57. In answering the question referred by the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)), it is necessary to take into account the various limitations set out above.
4. The answer to be given to the question referred for a preliminary ruling
58. As permitted by Article 5(1) of Directive 2003/86, the Belgian legislature has provided for the option of requiring family members to submit the application for family reunification. (32) According to Article 12bis(1) of the Law of 15 December 1980, such an application must be submitted to the territorially competent diplomatic post. (33) No exception to that rule is provided for by that law for family members residing abroad. Moreover, it is clear from the order for reference and from the file, and it is common ground between the parties, that although the wording of Article 12bis(1) of the Law of 15 December 1980 is not explicit in that regard, in practice, the application for family reunification must be submitted in person to the diplomatic post by the family members concerned, even where the sponsor is a recognised refugee.
59. For the reasons which I shall set out below, I consider that a mechanism for implementing Article 5(1) of Directive 2003/86 such as that which applies in Belgian law fails to observe the limits on the exercise of the discretion conferred by that provision on the Member States, limits which are recalled above.
60. In the first place, a mechanism of that kind, in that it does not provide, in an explicit, transparent and generally applicable manner, for alternatives to the submission in person of the application for family reunification where travel by the family members concerned to the competent diplomatic or consular post is impossible, clearly undermines the objective of Directive 2003/86, which is to promote family reunification. The same is true of the more specific objective of that directive, namely that of seeking to afford greater protection to recognised refugees, since the requirement to travel in person to such a post in order to submit an application for reunification applies, as is apparent from the case in the main proceedings, with equal strictness also to their family members. In so far as it has the effect, in the situations described above, of making it impossible in practice to exercise the right to family reunification, even where all the conditions laid down by Directive 2003/86 for authorising such reunification are satisfied, such a provision also undermines the effectiveness of that directive.
61. The fact, relied on by the Belgian Government both in its written observations and at the hearing, that, by applying to the competent diplomatic or consular post, the persons concerned may seek to obtain at least a temporary derogation from the obligation to lodge in person the application for a visa for the purposes of family reunification does not call into question the foregoing conclusion. First, assuming that there is, as the Belgian Government asserts, a real possibility of obtaining a derogation from the rule requiring the application to be submitted in person, (34) it is apparent from what that government stated that the decision to grant such a derogation is entirely discretionary and is likely to be taken only very sporadically, (35) solely when the presence of the applicants at the competent diplomatic post is deemed to be objectively impossible by the Immigration Office, since the diplomatic or consular authority must be authorised by the Immigration Office to provide for alternative measures to the personal appearance of the applicants. Secondly, it is clear from the position adopted by the Belgian State, with regard to the assessment of the condition of urgency in the main proceedings, that the Belgian administration interprets the concept of ‘impossibility’ in an extremely strict manner, essentially denying that that condition is also satisfied when the persons concerned live in conflict zones and, if they travel, risk being exposed to inhuman or degrading treatment. Thirdly, since the derogation is exceptional in nature and is granted entirely at the discretion of the administration, the persons concerned have no information about the existence of such a possibility of derogation. (36)
62. Moreover, leaving aside the cases in which it is objectively impossible to travel, it is questionable whether requiring, from the initial stage of the reunification procedure, the physical presence of the sponsor’s family members at a diplomatic or consular post is compatible with Directive 2003/86 in all cases where, in view of the specific situation of the applicants and the circumstances prevailing in their country of residence, travelling constitutes a serious obstacle to completion of the formalities required in order to lodge the application for reunification.
63. In that regard, it should be noted that the reunification procedure takes place in stages and often requires, after the application has been submitted, that the family members concerned present themselves at a diplomatic or consular post several times, in particular in order to lodge documents, to be interviewed, to undergo DNA tests and, if the application is accepted, to collect visas. Requiring those persons – who generally include the most fragile members of the family, such as young children – to make multiple, often long, difficult, if not plainly dangerous, or excessively onerous journeys to diplomatic or consular posts which may, as in the main proceedings, be located in countries other than the country of residence, in order to complete formalities which can easily be completed at a distance, does not seem to me to be consistent with the spirit of Directive 2003/86, but seems rather to stem from a desire to place in the path to family reunification obstacles of such a kind as to discourage the exercise of the right to such reunification. This applies in particular to the refugees’ family members, who may encounter greater difficulties in travelling. Accordingly, the obligation to submit the application for family reunification in person has the effect of placing at a greater disadvantage the category of third-country nationals which Directive 2003/86 seeks in particular to protect, having the paradoxical result that the circumstances which led them to flee their country and which, according to recital 8 of that directive, prompted the EU legislature to lay down more favourable conditions for the exercise of their right to family reunification, make it objectively more difficult, if not impossible in practice, to exercise that right. (37)
64. The Belgian Government argues that the submission in person of the application for a visa for the purposes of family reunification is necessary to enable the identity and biometric data of applicants to be recorded, in particular with a view to combating fraud relating to identity and family relationships. However legitimate this may be, such an aim cannot, in my view, justify the systematic imposition of a requirement for the applicants to appear in person at a diplomatic or consular post from the start of the reunification procedure. While not denying the validity of the requirement put forward by the Belgian Government for such records to be kept – including in order to allow the necessary security checks to be carried out in accordance with, inter alia, Article 6(1) of Directive 2003/86 – and therefore the necessity, at some stage of the procedure, for applicants to report in person to a diplomatic or consular post in order to have their biometric data recorded, I do not believe that such a record is necessary as early as the stage of submitting the application for family reunification. (38) Any unreasonable increase in the number of journeys to be made by family members should be avoided, in particular where those journeys are difficult or risky, especially at an early stage of the procedure when the examination of the application has not yet begun and the likelihood of a positive outcome cannot yet be assessed by the persons concerned.
65. In the second place, and essentially for the same reasons as those already set out, the fact that a Member State systematically requires the presence of the family members of a sponsor, including a recognised refugee, at a diplomatic or consular post of that Member State solely for the purpose of submitting at that post an application for family reunification, even where travel by the applicants to that post is objectively impossible or excessively difficult or risky, infringes the right to respect for family unity laid down in Article 7 of the Charter, whether or not read in conjunction with Article 24(2) and (3) thereof. Such a requirement constitutes an interference with that right which is disproportionate to the aim of combating fraud relating to family reunification, in breach of Article 52(1) of the Charter.
66. In the third and last place, an implementation of Article 5(1) of Directive 2003/86 such as that resulting from the Belgian legislation and administrative practice also disregards the obligation to assess each situation on a case-by-case basis, recalled in point 56 of this Opinion. A system in which the presence of the sponsor’s family members at the competent diplomatic post is mandatory and, as a rule, permits no exceptions does not, as a matter of principle, make it possible to take into account the situation of the persons concerned and, in particular, the circumstances which the Court has held to be likely to influence the scope and intensity of the examination of the application for reunification, such as, in particular, the age of the children concerned and their circumstances in the country of origin. (39) Those circumstances must, a fortiori, be taken into account at the earlier stage of carrying out the formalities to be completed when submitting such an application.
67. More generally, Member States must ensure that the procedure for implementing Article 5(1) of Directive 2003/86 is as flexible as possible and is, as the ECtHR has stated, attended by the guarantees of flexibility, promptness and effectiveness required in order to secure the right of the persons concerned to respect for their family life. (40) From that perspective, the excessive formalism which is apparent in particular from the email of 3 February 2023, coupled with the rejection of the application of 28 and 29 September 2022 previously sent by the Immigration Office to counsel for the applicants, primarily on the ground that it was submitted directly to the administration competent to examine it and not through a Belgian diplomatic or consular post, cannot in my view be accepted, particularly in the light of the situation of Ms X and the children A and B.
68. Before concluding, I would also like to point out, as the Council rightly did in its written observations, that the wording of Article 5(1) of Directive 2003/86 is sufficiently broad to allow the procedure for submitting an application for a visa for the purposes of family reunification to be structured in a manner consistent with the objective of that directive and the fundamental rights which underpin it, even where, as in the case of the Kingdom of Belgium, the Member State has opted for the solution which gives the sponsor’s family members the task of submitting such an application. Accordingly, that article excludes neither the possibility that that application may be submitted to the competent diplomatic or consular post by an agent, by post or by email, and therefore without the physical presence of the sponsor’s family members, nor the possibility that those family members may submit the application, as did Ms X and the children A and B, directly in the Member State in question to the administration responsible for examining it. However, in accordance with settled case-law, the Member States, in particular their courts, must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union. (41) Article 5(1) of Directive 2003/86 can therefore under no circumstances be interpreted in a way which permits a regime as strict and inflexible as that applicable in Belgium.
69. On the basis of all of the foregoing, I propose that the answer to the question referred for a preliminary ruling should be that Article 5(1) of Directive 2003/86, read in the light of Article 7 and Article 24(2) of the Charter, precludes a Member State’s legislation which requires family members, in particular family members of a recognised refugee who are in a third country, to lodge in person, with that Member State’s diplomatic or consular post having territorial jurisdiction, their application for entry and residence for the purposes of family reunification, without providing for exceptions where, in the light of the specific situation of the persons concerned and the circumstances prevailing in their country of residence, travel to such a post would be impossible, excessively difficult or risky.
V. Conclusion
70. In the light of all of the foregoing considerations, I propose that the Court should give the following answer to the question referred for a preliminary ruling by the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium):
Article 5(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it precludes a Member State’s legislation, regulations or administrative practices which require family members, in particular family members of a recognised refugee who are in a third country, to lodge in person, with that Member State’s diplomatic or consular post having territorial jurisdiction, their application for entry and residence for the purposes of family reunification, without providing for exceptions where, in the light of the specific situation of the persons concerned and the circumstances prevailing in their country of residence, travel to such a post would be impossible, excessively difficult or risky.