Case C‑560/20
CR and Others
v
Landeshauptmann von Wien
(Request for a preliminary ruling from the Verwaltungsgericht Wien)
Judgment of the Court (Grand Chamber) of 30 January 2024
(Reference for a preliminary ruling – Area of freedom, security and justice – Immigration policy – Right to family reunification – Directive 2003/86/EC – Article 10(3)(a) – Family reunification of an unaccompanied minor refugee with his or her first-degree relatives in the direct ascending line – Article 2(f) – Concept of ‘unaccompanied minor’ – Minor sponsor at the time of submission of the application but who attained majority during the family reunification procedure – Relevant date for assessing minor status – Period for submitting an application for family reunification – Adult sister of the sponsor requiring the permanent assistance of her parents on account of a serious illness – Effectiveness of the right to family reunification of an unaccompanied minor refugee – Article 7(1) – Article 12(1), first and third subparagraphs – Possibility of making family reunification subject to additional conditions)
1. Border controls, asylum and immigration – Immigration policy – Right to family reunification – Directive 2003/86 – Family reunification of refugees – Parents’ application for family reunification with an unaccompanied minor refugee – Minor sponsor at the time of submission of the application who attained majority during the procedure – Obligation to lodge the application within three months of the minor sponsor’s having been granted refugee status – No such obligation
(Council Directive 2003/86, Arts 10(3)(a) and 12(1), third subpara.)
(see paragraphs 37, 39-43, operative part 1)
2. Border controls, asylum and immigration – Immigration policy – Right to family reunification – Directive 2003/86 – Family reunification of refugees – Parents’ application for family reunification with an unaccompanied minor refugee – Obligation to ensure the effectiveness of that right – Obligation to issue a residence permit to the adult sister of an unaccompanied minor refugee who requires the permanent assistance of her parents on account of a serious illness
(Charter of Fundamental Rights of the European Union, Arts 7 and 24(2) and (3); Council Directive 2003/86, Art. 10(3)(a))
(see paragraphs 54-58, 61, operative part 2)
3. Border controls, asylum and immigration – Immigration policy – Right to family reunification – Directive 2003/86 – Family reunification of refugees – Parents’ application for family reunification with an unaccompanied minor refugee – Conditions – Obligation for the unaccompanied minor refugee or his or her parents to have accommodation, sickness insurance and sufficient resources – Not permissible
(Charter of Fundamental Rights of the European Union, Arts 7 and 24(2) and (3); Council Directive 2003/86, Arts 4(2)(a), 7(1), 10(3)(a) and 12(1))
(see paragraphs 72-80, operative part 3)
Résumé
Ruling on questions referred for a preliminary ruling, the Court of Justice, sitting as the Grand Chamber, specifies the conditions of eligibility for family reunification, pursuant to Directive 2003/86, (1) of the parents and seriously ill sister of an unaccompanied minor refugee who reached majority during the family reunification procedure.
Having arrived in Austria in 2015 as an unaccompanied minor, RI was granted refugee status there in January 2017. Three months and one day after notification of that decision, when RI was still a minor, CR and GF, his parents, and TY, his adult sister suffering from cerebral palsy, submitted, for the first time, to the Embassy of the Republic of Austria in Syria, applications for entry and residence for the purposes of family reunification with RI. Those applications were rejected by a final decision on the ground that RI had become an adult during the family reunification procedure.
In July 2018, CR, GF and TY again submitted, to the Landeshauptmann von Wien (Governor of the Province of Vienna, Austria), applications for entry and residence for the purposes of family reunification with RI. Those were, once again, rejected on the ground that they had not been submitted within three months of the date on which RI’s refugee status had been recognised.
Hearing a challenge by CR, GF and TY against that rejection, the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria), that court decided to refer questions to the Court of Justice on the interpretation of Directive 2003/86. In particular, the referring court asks whether the submission of an application for family reunification with an unaccompanied minor refugee can be subject to a specified period where the refugee reaches majority during the family reunification procedure. It also questions the scope of the possibility of the Member States to require the refugee to have, for him or herself and the members of his or her family, accommodation, sickness insurance and sufficient resources, as is provided for by Directive 2003/86 (2) and transposed into Austrian law. In addition, that court notes that Austrian law does not provide for a right to family reunification for the sponsor’s sister. However, TY being totally and permanently dependent on the assistance of her parents, they cannot join their son in Austria without taking TY with them.
Findings of the Court
In the first place, as regards the requirement laid down in the judgment in A and S (3) that an application for family reunification of an unaccompanied minor refugee with his or her parents, (4) pursuant to Article 10(3)(a) of Directive 2003/86, must be submitted within three months of the grant of refugee status to the minor, the Court emphasises that that period is intended to avoid the risk that the right to family reunification may be relied on without any time limit in the situation where the refugee has already reached majority during the asylum procedure and thus even before the application for family reunification has been submitted.
However, there is no such risk where the refugee reaches majority during the family reunification procedure. Moreover, in the light of the objective of Article 10(3)(a) of Directive 2003/86, which is to promote the reunification of unaccompanied minor refugees with their parents and guarantee them an additional protection, an application for family reunification under that provision cannot be regarded as being out of time if it was submitted when the refugee concerned was still a minor. Thus, a period for the submission of such an application cannot begin to run before the refugee has reached the age of majority. Consequently, as long as the refugee is a minor, his or her parents may submit an application for entry and residence for the purposes of family reunification with that refugee, without being required to comply with a specified period.
In the second place, the Court notes that it is apparent from the order for reference that, on account of her illness, TY is totally and permanently dependent on the material assistance of her parents, who cannot therefore leave her alone in Syria. In those circumstances, if TY were not approved for family reunification with RI at the same time as her parents, RI would, de facto, be deprived of his right to family reunification with his parents. Such an outcome would be incompatible with the unconditional nature of that right and would undermine its effectiveness, disregarding both the objective of Article 10(3)(a) of Directive 2003/86 and the requirements arising from Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), concerning respect for private and family life, and from Article 24(2) and (3) of the Charter, (5) relating to the rights of the child, which that directive is obliged to guarantee.
It follows that, in the light of the exceptional circumstances of the case in the main proceedings, the effectiveness of RI’s right to family reunification with his parents and compliance with the said provisions of the Charter require that an entry and residence permit be granted in Austria also to RI’s adult sister, who requires the permanent assistance of her parents on account of a serious illness.
In the last place, in the light of Directive 2003/86 and of the aforementioned fundamental rights, the Court concludes that a Member State cannot require that, in order to be able to benefit from the right to family reunification with his or her parents under Article 10(3)(a) of Directive 2003/86, an unaccompanied minor refugee or his or her parents must have, within the meaning of Article 7(1) of that directive, accommodation, sickness insurance and stable, regular and sufficient resources, irrespective of whether the application for family reunification has been submitted within three months of the grant of refugee status. (6)
It is practically impossible for an unaccompanied minor refugee to meet those conditions. Likewise, it is extremely difficult for the parents of such a minor to meet them before even having joined their child in the Member State concerned. Thus, to make the possibility of family reunification of unaccompanied minor refugees with their parents dependent on compliance with those conditions would, in reality, be tantamount to depriving those minors of their right to such reunification.
Furthermore, in so far as the effectiveness of RI’s right to family reunification with his parents requires, in the light of TY’s situation, an entry and residence permit to be granted also to her, the Member State concerned also cannot require RI or his parents to meet the conditions laid down in Article 7(1) of that directive with regard to the seriously ill sister of that minor refugee.