Case C‑1/23 PPU
X and Others
v
État belge
(Request for a preliminary ruling from the tribunal de première instance francophone de Bruxelles)
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 the 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)
1. Questions referred for a preliminary ruling – Urgent preliminary ruling procedure – Conditions – Separation and estrangement of young children from their father, a beneficiary of international protection – Risk of seriously damaging their relationship – Outcome of the dispute liable to have an effect on the situation which gave rise to that risk – Application of the urgent preliminary ruling procedure
(Statute of the Court of Justice, Art. 23a; Rules of Procedure of the Court of Justice, Art. 107)
(see paragraphs 25-27)
2. Border controls, asylum and immigration – Immigration policy – Right to family reunification – Directive 2003/86 – Respecting fundamental rights – Right to respect for family life – Obligation to take into consideration the best interests of the child – National legislation requiring the sponsor’s family members to submit an application for family reunification in person at the competent diplomatic post – Impossibility or excessive difficulty to reach that post – Not permissible – Possibility for the Member State concerned to require those family members to appear in person at a later stage of the application procedure for family reunification
(Charter of Fundamental Rights of the European Union, Arts 7 and 24(2) and (3); Council Directive 2003/86, Art. 5(1))
(see paragraphs 40, 41, 44-60)
Résumé
Ms X and Mr Y, Syrian nationals, were married in 2016 in Syria. They had two children, born in 2016 and 2018 respectively. In 2019, Mr Y left Syria to travel to Belgium while Ms X and their two children remained in the town of Afrin, located in north-west Syria, where they are still currently located. In August 2022, Mr Y was recognised as a refugee in Belgium.
By email of 28 September 2022, sent to the Office des étrangers (Immigration Office, Belgium) (‘the Office’), the lawyer for the applicants submitted an application for family reunification on behalf of Ms X and the two children, so that they could join Mr Y in Belgium. That email stated that the application had been submitted by the applicants’ lawyer to the Office, as Ms X and her children were in exceptional circumstances which prevented them in practice from travelling to a Belgian diplomatic post in order there to submit their application for family reunification, as required by Belgian law.
On 29 September 2022, the Office replied that, according to Belgian law, it was not possible to submit such an application via email and invited the applicants to contact the competent Belgian embassy. By interlocutory application of 9 November 2022, the applicants brought an action against the État belge (Belgian State) before the referring court to have their application for family reunification registered. They argue that Belgian law, which allows a refugee’s family members to apply for entry and residence only in person and at a diplomatic post, even where those persons are unable to travel there, is not consistent with EU law.
The referring court confirms that, under Belgian law, no derogation from the requirement to appear in person at the beginning of the procedure is provided for in a situation such as that in the present case. However, that court observes that Ms X and her children have no real possibility of leaving Afrin to travel to a competent Belgian diplomatic post, since the bordering countries where those posts are located are unsafe for persons fleeing Syria or appear to be inaccessible, due to the need to cross a front line. Although Article 5(1) of Directive 2003/86 (1) leaves it to the Member States to determine who – the sponsor or his or her family members – may submit an application for family reunification, in the present case, the choice made by the Belgian legislature is tantamount to denying Ms X and her children any possibility of submitting such an application. The referring court therefore seeks to determine whether that refusal undermines the effectiveness of that directive or whether it infringes the fundamental rights (2) which it seeks to protect.
In the context of the urgent preliminary ruling procedure, the Court of Justice states that Directive 2003/86, (3) read in conjunction with the Charter, (4) 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. However, that Member State retains the possibility of requiring those family members to appear in person at a later stage of the application procedure for family reunification.
Findings of the Court
To reach that conclusion, first, the Court notes that, in order to achieve the objective of Directive 2003/86 of promoting family reunification, the Member States must show, in situations such as that at issue in the main proceedings, the necessary flexibility to enable the persons concerned to submit their application for family reunification in good time, by facilitating the submission of that application and by permitting, in particular, the use of remote means of communication. In the absence of such flexibility, the requirement to appear in person at a competent diplomatic or consular post when the application is submitted does not make it possible to take account of any obstacles that might prevent the submission of that application, in particular where the sponsor’s family members are in a country where there is armed conflict. Furthermore, as regards the particular situation of refugees, the absence of any flexibility on the part of the Member State concerned, preventing their family members from submitting their application for family reunification, irrespective of the circumstances, may have the consequence that the persons concerned will not be able to comply with the time limit laid down in the third subparagraph of Article 12(1) of Directive 2003/86, (5) which means that the family reunification of those persons could be subject to additional conditions, contrary to the aim of paying particular attention to the situation of refugees. Consequently, the requirement to appear in person when an application for reunification is submitted, without allowing for derogations in order to take account of the specific situation of the sponsor’s family members, results in the exercise of the right to family reunification becoming impossible in practice, so that such legislation, applied without the necessary flexibility, undermines the objective pursued by Directive 2003/86 and deprives it of its effectiveness.
Second, the Court states that a national provision which requires, without exception, the sponsor’s family members to 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 family unity laid down in Article 7 of the Charter, read, where appropriate, in conjunction with Article 24(2) and (3) thereof. Such an obligation constitutes a disproportionate interference with the right to respect for family unity in relation to the aim, which is nevertheless legitimate, of combating fraud relating to family reunification. Since the application procedure for family reunification takes place in stages, the Member States may request the sponsor’s family members to appear in person at a later stage of that procedure, 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. However, in order not to undermine the aim pursued by Directive 2003/86 of promoting family reunification and the fundamental rights which that directive seeks to protect, where the Member State requires the sponsor’s family members to appear in person at that later stage, that Member State must facilitate such an appearance, in particular by issuing consular documents or laissez-passers, and reduce the number of appearances to the strict minimum.