JUDGMENT OF THE COURT (Third Chamber)
18 April 2023 (*)
(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Border controls, asylum and immigration – Immigration policy – Directive 2003/86/EC – Right to family reunification – Article 5(1) – Submission of an application for entry and residence for the purposes of exercising the right to family reunification – Legislation of a Member State requiring a sponsor’s family members to submit the application in person to the competent diplomatic post of that Member State – Impossibility or excessive difficulty to reach that post – Charter of Fundamental Rights of the European Union – Articles 7 and 24)
In Case C‑1/23 PPU,
REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), made by decision of 2 January 2023, received at the Court on the same day, in the proceedings
X,
Y,
A, legally represented by X and Y,
B, legally represented by X and Y
v
État belge,
THE COURT (Third Chamber),
composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Third Chamber, M. Safjan (Rapporteur), N. Jääskinen and M. Gavalec, Judges,
Advocate General: G. Pitruzzella,
Registrar: K. Hötzel, Administrator,
having regard to the written procedure and further to the hearing on 1 March 2023,
after considering the observations submitted on behalf of:
– X and Y, and also of A and B, legally represented by X and Y, by C. D’Hondt and P. Robert, avocats,
– the Belgian Government, by M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents, and by S. Matray and C. Piront, avocates,
– the German Government, by J. Möller and R. Kanitz, acting as Agents,
– the Spanish Government, by A. Gavela Llopis, acting as Agent,
– the French Government, by B. Fodda and J. Illouz, acting as Agents,
– the Netherlands Government, by M.K. Bulterman, acting as Agent,
– the Council of the European Union, by R. Meyer and O. Segnana, acting as Agents,
– the European Commission, by A. Azéma and J. Hottiaux, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 9 March 2023,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 5(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), 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 (OJ 2011 L 337, p. 9), 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 Ms X and Mr Y and their minor children A and B (together ‘the applicants in the main proceedings’) and the État belge (Belgian State) concerning the latter’s refusal to register the application for entry and residence for the purposes of family reunification submitted by Ms X and by the children A and B.
Legal context
European Union law
Directive 2003/86
3 Recitals 2 and 8 of Directive 2003/86 are worded 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, signed at Rome on 4 November 1950,] and by the [Charter].
…
(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.’
4 In the words of Article 2 of that directive:
‘For the purposes of this Directive:
…
(b) “refugee” means any third country national or stateless person enjoying refugee status within the meaning of the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967;
(c) “sponsor” means 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;
(d) “family reunification” means 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;
…’
5 Article 4 of that directive, the sole provision in Chapter II, entitled ‘Family members’, 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 …
…’
6 Article 5 of that directive, which appears in Chapter III, entitled ‘Submission and examination of the application’, states:
‘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.
…
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.’
7 Article 7 of Directive 2003/86, which appears in Chapter IV, entitled ‘Requirements for the exercise of the right to family reunification’, provides, in paragraph 1:
‘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:
(a) 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;
(b) 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;
(c) 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. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members.’
8 Article 12 of that directive appears in Chapter V, entitled ‘Family reunification of refugees’. That article provides, in paragraph 1:
‘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.
…
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.’
Directive 2011/95
9 Article 2 of Directive 2011/95 provides:
‘For the purposes of this Directive the following definitions shall apply:
…
(j) “family members” means, in so far as the family already existed in the country of origin, the following members of the beneficiary of international protection who are present in the same Member State in relation to the application for international protection:
– the spouse of the beneficiary of international protection …
– the minor children of the couples referred to in the first indent …
…’
Belgian law
10 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 on access to the territory, residence, establishment and removal of foreign nationals (Moniteur belge, 31 December 1980, p. 14584)), in the version applicable to the dispute in the main proceedings (‘the Law of 15 December 1980’), transposes into the Belgian legal order, in particular, Article 12(1) of Directive 2003/86. Article 10 is worded as follows:
‘Paragraph 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 in the Kingdom of the foreign national who is being joined or if they have a common minor child. Those conditions relating to the nature of the residence and the duration of the residence shall not apply in the case of family members of a foreign national who, in accordance with paragraph 1(2) or (3) of Article 49 or paragraphs 2 or 3 of Article 49/2, was granted permission to reside in Belgium as a beneficiary of international protection status:
– his or her foreign spouse …, who is coming to live with her or him, provided that both persons concerned are over the age of 21 years. This minimum age shall be reduced to 18 years, however, where the marital relationship or the registered partnership, as the case may be, pre-exists the arrival in the Kingdom of the foreign national who is being joined;
– their children, who are coming to live with them before they have reached the age of 18 years and are unmarried;
…
Paragraph 2 …
The foreign nationals referred to in paragraph 1(1), 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 or her …, and also 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(1), 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 shall not apply if the foreign national is joined only by the members of his or her family referred to in paragraph 1(1), point 4, second and third indents.
…
Subparagraphs 2, 3 and 4 shall not apply to family members of a foreign national recognised as a refugee and a foreign national benefiting from the subsidiary protection referred to in paragraph 1(1), points 4 to 6, where the family ties, relationship through marriage or registered partnership predate the entry of that foreign national into the Kingdom and provided that the application for residence on the basis of that article was lodged within one year of the decision recognising refugee status or granting subsidiary protection to the foreign national who is being joined.
…’
11 The first subparagraph of Article 12bis(1) of the Law of 15 December 1980, which transposes Article 5(1) of Directive 2003/86 into the Belgian legal order, states:
‘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.’
The dispute in the main proceedings and the question referred for a preliminary ruling
12 Ms X and Mr Y are Syrian nationals and were married in Syria in 2016. They have two children, born in 2016 and 2018 respectively.
13 In 2019 Mr Y left Syria, via Türkiye, in order to travel to Belgium, while Ms X and their two children remained in the town of Afrin, in north-west Syria, where they are still currently located. On 25 August 2022, the competent Belgian administration recognised Mr Y’s status as a refugee in Belgium. That decision was notified to Mr Y’s lawyer by email on 29 August 2022.
14 By email of 28 September 2022 and by letter of 29 September 2022, addressed to the Office des étrangers (Immigration Office) (Belgium) (‘the Office’), the lawyer representing the applicants in the main proceedings submitted an application for entry and residence for the purposes of family reunification on behalf of Ms X and the children A and B, so that they might join Mr Y in Belgium (‘the application of September 2022’). In that correspondence, the applicants in the main proceedings stated that that application was submitted to the Office through their lawyer, as Ms X and her children were in ‘exceptional circumstances which prevent[ed] them in practice from travelling to a Belgian diplomatic post in order there to submit an application for family reunification’, as required by the Belgian legislation.
15 On 29 September 2022, the Office replied that, according to that legislation, it was not possible to submit an application for entry and residence for the purposes of family reunification by email and invited the applicants in the main proceedings to contact the competent Belgian embassy.
16 By interlocutory application of 9 November 2022, the applicants in the main proceedings brought an action against the Belgian State before the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), the referring court, in order to obtain registration by that Member State of the application of September 2022.
17 In that regard, they claimed that, since it was impossible for Ms X and her children to travel to a competent Belgian diplomatic post, an application submitted to the Office should be accepted under EU law. In their submission, the Belgian legislation, which allows the family members of a refugee to submit an application for entry and residence only in person and at such a diplomatic post, even where those family members are unable to travel to a diplomatic post, is not compatible with EU law.
18 The referring court confirms that, under Belgian law, the spouse and minor children of the sponsor must submit their application for family reunification to the competent Belgian diplomatic or consular representative for the place of their temporary or permanent residence abroad and that no derogation from that requirement of physical presence at the beginning of the procedure is provided for in a situation such as that of the main proceedings. In application of that law, Ms X and her children cannot therefore submit such an application in Belgium.
19 However, the referring court observes that the Afrin area is at present under the de facto control of Türkiye and that Ms X and her children are unable in practice to leave that town to travel to a competent Belgian diplomatic post in order to submit there an application for family reunification. Thus, contrary to the Belgian State’s suggestion, Ms X and her children cannot travel to the Belgian diplomatic post in Ankara (Türkiye) or Istanbul (Türkiye), since Türkiye is not safe for persons fleeing Syria and, in addition, the Turkish borders are closed to those persons. Furthermore, a departure towards southern Syria in the direction of Lebanon or Jordan is also ruled out, as such a journey involves crossing a front line.
20 The referring court observes that, in so far as Article 5(1) of Directive 2003/86 leaves it to the Member States to determine who, of the sponsor or family members, may submit the application for family reunification, the choice made by the Belgian legislature seems, in principle, to be in accordance with that provision. In the present case, however, that choice amounts to denying the sponsor’s spouse and minor children any possibility of submitting an application for family reunification. It is therefore necessary to examine whether, in such a situation, the refusal to allow that spouse and those children to submit such an application in Belgium undermines the practical effect of that directive or infringes the fundamental rights which that directive is intended to protect, namely the right to respect for private and family life guaranteed by Article 7 of the Charter, and the right to have the best interest of the child taken into account, and also the right of the child to maintain on a regular basis a personal relationship with both his or her parents, enshrined in Article 24 of the Charter.
21 The referring court further states that, in order to justify that refusal, the Belgian State maintains that the presence of Ms X and her children at a Belgian diplomatic post in Türkiye, Lebanon or Jordan is essential for the purpose of verifying their identity by producing their biometric identifiers. While the aim of identifying applicants for family reunification appears to be legitimate, it is however necessary that the means employed by the Belgian State, namely requiring the applicants to appear in person at a diplomatic post at the beginning of the procedure, should comply with the principle of proportionality.
22 In those circumstances, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-Speaking)) 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?’
The request for the application of the urgent preliminary ruling procedure
23 The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107(1) of the Rules of Procedure of the Court of Justice.
24 In support of its request, the referring court relied on reasons relating to the security situation in Syria and to the fact that a late decision on the registration of the application for entry and residence for the purposes of family reunification might make that reunification more difficult, as Belgian law imposes stricter requirements when the application for family reunification is submitted more than one year after recognition of the sponsor’s refugee status.
25 In that regard, in the first place, it should be noted that the present request for a preliminary ruling concerns the interpretation of, inter alia, the provisions of Directive 2003/86, which was adopted on the basis of point 3(a) of the first paragraph of Article 63 EC, now Article 79 TFEU. Thus, that act comes under Title V of Part Three of the FEU Treaty, on the Area of freedom, security and justice. In accordance with Article 107(1) of the Rules of Procedure, the request may therefore be dealt with under the urgent preliminary ruling procedure.
26 As regards, in the second place, the condition relating to urgency, it is apparent from the order for reference that the minor children A and B have been separated from their father for more than three years and that the continuation of that situation, which would be the consequence of the failure to register the application of September 2022, could seriously harm those children’s future relationship with their father (see, by analogy, judgment of 16 February 2023, Rzecznik Praw Dziecka and Others (Suspension of the return decision), C‑638/22 PPU, EU:C:2023:103, paragraph 42).
27 In those circumstances, the Third Chamber of the Court decided, on 11 January 2023, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to grant the referring court’s request that the present request for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.
Consideration of the question referred
The continuation of the purpose of the question referred for a preliminary ruling
28 It is apparent from the written observations submitted by the applicants in the main proceedings and by the Belgian Government that the Office informed the applicants in the main proceedings, by email of 3 February 2023, that it authorised them, in the light of their situation and as an exceptional measure, to submit their application for entry and residence for the purposes of family reunification at a Belgian diplomatic or consular post of their choice without being required, at the submission stage, to appear in person.
29 In the light of that email, the Belgian Government claims, primarily, that the request for a preliminary ruling is devoid of purpose, since the applicants in the main proceedings are no longer required to appear in person, in order to submit their application for entry and residence for the purposes of family reunification, at the competent diplomatic or consular post.
30 In that regard, it should be borne in mind that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the former provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others, C‑72/22 PPU, EU:C:2022:505, paragraph 47 and the case-law cited).
31 The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. Therefore, if it appears that the questions raised are manifestly no longer relevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others, C‑72/22 PPU, EU:C:2022:505, paragraph 48 and the case-law cited).
32 In the present case, the dispute in the main proceedings originates in the interlocutory application of 9 November 2022, seeking to obtain registration of the application of September 2022 and that any delay in that registration be the subject of a daily penalty payment. As the applicants in the main proceedings claimed in their written observations and at the hearing before the Court, they continue to have a definite interest in that application being registered.
33 It follows from Article 5(4) of Directive 2003/86 that the competent national authorities are to give notification of their decision on the application for entry and residence for the purposes of family reunification as soon as possible and in any event no later than nine months from the date on which the application was lodged. Thus, as the Advocate General observed in point 28 of his Opinion, having regard to the security situation which Ms X and the children A and B are facing and to the fact that they have been separated from Mr Y for more than three years, the date on which that application is regarded as having been validly lodged is therefore of undoubted importance for them. The applicants in the main proceedings thus still have an interest in the period, prescribed in Article 5(4) of that directive, within which the competent national authorities are to deliver a decision on their application, beginning to run as soon as possible.
34 It should be observed that the email of 3 February 2023 does not constitute consent by the Office to register the application of September 2022, but a mere invitation to submit a new application for entry and residence for the purposes of family reunification without being required to travel in person, on the date of submission of that new application, to the chosen diplomatic or consular post.
35 In those circumstances, it must be held that an answer from the Court to the question for a preliminary ruling referred by the referring court remains necessary for the outcome of the dispute in the main proceedings.
36 It is therefore appropriate to rule on the request for a preliminary ruling.
Substance
37 As a preliminary point, it should be noted that, by its single question, the referring court asks the Court of Justice about both Article 5(1) of Directive 2003/86 and Articles 23 and 24 of Directive 2011/95, concerning the maintenance of the family unit and the residence permit. As the Advocate General observed in point 31 of his Opinion, the latter provisions do not appear to be relevant in the light of the situation at issue in the main proceedings, since, in accordance with Article 2(j) of Directive 2011/95, those provisions are not to apply to the family members of a refugee who are not present in the territory of the Member State concerned, but are still present in the territory of a third country.
38 In those circumstances, it must be considered that, by that question, the referring court asks, in essence, whether Article 5(1) of Directive 2003/86, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as meaning that it precludes national legislation which requires that, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members, in particular those of a recognised refugee, appear in person at the diplomatic or consular post of a Member State competent in respect of the place of their temporary or permanent residence abroad, including in a situation where it is impossible or excessively difficult for them to travel to that post.
39 Article 5(1) of Directive 2003/86 provides that Member States are to determine whether, in order to exercise the right to family reunification, an application for entry and residence is to be submitted to the competent authorities of the Member States concerned either by the sponsor or by the family member or members.
40 It follows from that provision that it is for the Member States to determine (i) the person who is authorised to submit an application for entry and residence, in order to exercise the right to family reunification, and (ii) the authorities which are competent to register such an application.
41 However, it must be borne in mind, in the first place, that while Article 5(1) of Directive 2003/86 affords to the Member States a margin of appreciation in that respect, that margin of appreciation must not be used by them in a manner which would undermine the objective of that directive or its effectiveness (see, by analogy, judgments of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 53, and of 12 December 2019, G.S. and V.G. (Threat to public policy), C‑381/18 and C‑382/18, EU:C:2019:1072, paragraph 62 and the case-law cited).
42 As regards the objective pursued by Directive 2003/86, the Court has repeatedly held that that directive is intended to promote family reunification and to grant protection to third-country nationals, in particular minors. In order to achieve that objective, Article 4(1) of that directive imposes on the Member States precise positive obligations, with corresponding clearly defined individual rights. It thus requires them to authorise the family reunification of certain members of the sponsor’s family, without being left a margin of appreciation, provided that the conditions laid down in Chapter IV of that directive are satisfied (judgment of 12 December 2019, G.S. and V.G. (Threat to public policy), C‑381/18 and C‑382/18, EU:C:2019:1072, paragraphs 60 and 61 and the case-law cited).
43 Furthermore, as is apparent from recital 8 thereof, Directive 2003/86 aims to afford enhanced protection to third-country nationals who have obtained refugee status in that it provides for more favourable conditions for the exercise of their right to family reunification, since special attention should be paid to their situation on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there.
44 In the second place, as is apparent from recital 2 of Directive 2003/86, that directive respects the fundamental rights and observes the principles enshrined in the Charter. Accordingly, the Member States must not only interpret their national law in a manner consistent with EU law but also make sure that 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 (judgment of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraphs 53 and 54 and the case-law cited).
45 In that regard, it should be observed that Article 7 of the Charter, which contains rights corresponding to those guaranteed by Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, expressly referred to in recital 2 of Directive 2003/86, recognises the right to respect for private and family life. That provision of the Charter must also be read in conjunction with Article 24(2) of the Charter, concerning the obligation to have regard to the child’s best interests, and with Article 24(3), concerning the need for a child to maintain on a regular basis a personal relationship with both his or her parents (judgment of 16 July 2020, État belge (Family reunification – Minor child), C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 34 and the case-law cited).
46 It follows that the provisions of Directive 2003/86 must be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter, as is apparent from recital 2 and Article 5(5) of that directive, which require the Member States to examine applications for family reunification in the interests of the children concerned and with a view to promoting family life (judgment of 16 July 2020, État belge (Family reunification – Minor child), C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 35 and the case-law cited).
47 Thus, it is for the competent national authorities to make a balanced and reasonable assessment of all the rights and interests in play, taking particular account of the interests of the children concerned (see, to that effect, judgment of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 57 and the case-law cited).
48 It is by reference to all of the foregoing considerations that the Court must examine whether Article 5(1) of Directive 2003/86, read in the light of Article 7 and of Article 24(2) and (3) of the Charter, precludes a Member State from requiring the family members of the sponsor to appear in person at the competent diplomatic or consular post of that Member State at the time of submission of the application for family reunification even where, on account of their actual situation, that is impossible or excessively difficult.
49 In that regard, first, it should be borne in mind that the first subparagraph of Article 12bis(1) of the Law of 15 December 1980, which transposes Article 5(1) of Directive 2003/86 into Belgian law, provides that it is for the sponsor’s family members, and not for the sponsor himself or herself, to submit an application for entry and residence for the purposes of family reunification and that those family members must submit such an application by attending the competent Belgian diplomatic or consular representative for the place of his or her residence or stay abroad.
50 As the referring court makes clear, Belgian law provides for no derogations from that requirement to appear in person when submitting the application for family reunification for situations where that is impossible or excessively difficult, in particular those in which the sponsor’s family members live in a conflict area and by travelling risk exposing themselves to inhuman or degrading treatment, and indeed putting their lives in danger.
51 It should be observed that, in order to attain the objective of Directive 2003/86 of promoting family reunification, as observed in paragraph 42 of the present judgment, it is essential that the Member States show, in such situations, the necessary flexibility to enable those concerned to be able in practice to submit their application for family reunification in good time, by facilitating the submission of that application and allowing in particular the use of remote means of communication.
52 In the absence of such flexibility, the requirement, to which no exceptions are made, to appear in person at the time of submitting the application, such as that laid down in the national legislation at issue in the main proceedings, does not make it possible to take into account any obstacles that might prevent the effective submission of such an application and, accordingly, render the exercise of the right to family reunification impossible, thus perpetuating the separation of the sponsor from the members of his or her family and what is often the precarious situation of those family members. In particular, when the family members are in a country marked by armed conflict, the possibilities of travelling to competent diplomatic or consular posts may be considerably limited, so that, in order to comply with the requirement to appear in person, those individuals, who may, in addition, be minors, would be compelled to wait until the security situation allows them to travel, unless they expose themselves to inhuman or degrading treatment, or indeed put their lives in danger.
53 It should be added, as regards the particular situation of refugees, such as Mr Y in the main proceedings, that the absence of any flexibility on the part of the Member State concerned, which has the effect that their family members are prevented from submitting their application for family reunification, irrespective of the circumstances, may have the consequence that the persons in question will not succeed in complying with the time limit laid down in the third subparagraph of Article 12(1) of Directive 2003/86, or by the provision of national law transposing that subparagraph, and that their family reunification could therefore be subject to additional conditions that are more difficult to satisfy, referred to in Article 7(1) of that directive, contrary to the objective, referred to in paragraph 43 of the present judgment, of paying particular attention to the situation of refugees.
54 In the light of those considerations, it must be held that the requirement to appear in person at the time of submitting an application for family reunification, with no derogations from that requirement being accepted to take account of the actual situation faced by the sponsor’s family members, and in particular the fact that it is impossible or excessively difficult for them to comply with that requirement being permitted, has the effect of rendering the exercise of the right to family reunification impossible in practice, so that such legislation, applied without the necessary flexibility, undermines the objective pursued by Directive 2003/86 and deprives that directive of its effectiveness.
55 Second, as observed in paragraph 44 of the present judgment, Directive 2003/86 recognises the fundamental rights and observes the principles enshrined in the Charter.
56 In that regard, it should be observed that a national provision that requires, without exception, that the sponsor’s family members appear in person in order to submit an application for family reunification, even where that is impossible or excessively difficult, infringes the right to respect for the family unit laid down in Article 7 of the Charter, read, where necessary, in conjunction with Article 24(2) and (3) of the Charter.
57 As the Advocate General observed in point 65 of his Opinion, such a requirement constitutes a disproportionate interference with the right to respect for family unity by reference to the undoubtedly legitimate aim, on which the Belgian Government relies, of combating fraud relating to family reunification, in breach of Article 52(1) of the Charter.
58 The considerations set out in paragraphs 56 and 57 of the present judgment are supported by the fact that the procedure for an application for family reunification takes part in two stages, as is apparent from the structure of Article 5 of Directive 2003/86. Thus, the Member States may require the sponsor’s family members to appear in person at a later stage in that procedure, for the purpose, in particular, of verifying the family ties and the identity of the persons concerned, without it being necessary to impose, for the purposes of processing the application for family reunification, the requirement for them to be there in person at the time when the application is submitted.
59 However, in order not to undermine the objective pursued by Directive 2003/86 of promoting family reunification and the fundamental rights which that directive is intended to protect, when the Member State requires the sponsor’s family members to appear in person at a later stage in the procedure, that Member State must facilitate such an appearance, notably by issuing consular documents or laissez-passers and reducing the number of appearances to the strict minimum. Thus, it falls to the Member State to provide for the possibility of carrying out the verifications of the family ties and identity that require those family members to appear in person at the end of the procedure and, if possible, at the same time as when, where appropriate, the documents authorising entry to the territory of the Member State concerned are issued to them.
60 In the light of the foregoing reasons, the answer to the question referred should by that Article 5(1) of Directive 2003/86, read in conjunction with Article 7 and with Article 24(2) and (3) of the Charter, must be interpreted as meaning that it precludes national legislation which requires, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members, in particular those of a recognised refugee, appear in person at the diplomatic or consular post of a Member State competent in respect of the place of their temporary or permanent residence abroad, including in a situation where it is impossible or excessively difficult for them to travel to that post, without prejudice to the possibility for that Member State to require that those members appear in person at a later stage of the application procedure for family reunification.
Costs
61 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 5(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that it precludes national legislation which requires, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members, in particular those of a recognised refugee, appear in person at the diplomatic or consular post of a Member State competent in respect of the place of their temporary or permanent residence abroad, including in a situation where it is impossible or excessively difficult for them to travel to that post, without prejudice to the possibility for that Member State to require that those members appear in person at a later stage of the application procedure for family reunification.
[Signatures]