CJEU: date asylum application decisive for right to family reunification unaccompanied minor

On 12 April 2018 the Court of Justice of the European Union (CJEU) issued its judgment in case C-550/16. This case concerns the right of unaccompanied minors to reunifiy with their parents. According to the Family Reunification Directive (Directive 2003/86/EC) unaccompanied minors, who have received a refugee status, have a right to family reunification with their parents. The Court of Justice of the European Union (CJEU) was asked to decide which moment in time is decisive in order to be considered an ‘unaccompanied minor’: the date of the application for family reunification or an earlier date, specifically the date of the asylum application. This question is relevant because a person may apply for asylum when s/he is a minor, but turn 18 during the asylum procedure. This is what happened in the case, in which the questions to the CJEU were raised. The case concerns an Eritrean girl, who was 17 years old when she applied for asylum in the Netherlands and 18 years old when she received her asylum status. She subsequently applied for reunification with her parents. This application was rejected because the Dutch authorities were of the opinion that she should not be considered an ‘unaccompanied minor’ anymore.

The CJEU in its judgment followed the argumentation in the expert opinion of the Migration Law Clinic, which argued that the date of the asylum application should be decisive for the right to family reunification. During the proceedings the CJEU asked the Dutch and Polish Government and the European Commission to respond to the Clinic’s argumentation in the expert opinion.

The CJEU ruled that the moment the unaccompanied minor submitted the asylum decision should be decisive for several reasons. First the CJEU referred to the declaratory nature of the recognition as a refugee: this means that persons who are in need of refugee protection have a right to be recognised as having refugee status, even before the formal decision is adopted in that regard. Moreover the CJEU considered that, if the right to family reunification would  depend  on how quickly or slowly the asylum is processed by the national authorities, this ‘would call into question the effectiveness’ of the right to family reunification. It would also go against  the aim of the Family Reunification Directive,  to promote family reunification and to grant in that regard specific protection to  unaccompanied refugees. It would also violate the principles of equal treatment: two unaccompanied minors of the same age who have each submitted, at the same time, an application for international protection could, as regards the right to family reunification, be treated differently as a result of the duration of the processing of their application. The CJEU noted that generally asylum applicants have no influence on the duration of the asylum procedure. It may depend on the  complexity of the case, the workload of the national authorities and the political choices Member States make as regards the staff made available to those authorities and the cases to be dealt with as a priority. Taking the date of the application for family reunification as the relevant moment would also fail to encourage Member States to prioritise cases of unaccompanied minors.  Finally unaccompanied minors would not be able to forsee whether they will have the right to reunify with their parents, which might undermine legal certainty.

Taking the date of the asylum application would enable identical treatment and foreseeability for all unaccompanied minors. The unaccompanied minor should apply for family reunification within three months after s/he has received refugee status. This prevents that unaccompanied minors could rely on their status as ‘unaccompanied minor’ for an unlimited period of time.

The district court of the Hague, which referred the questions to the CJEU, will now have to take a decision on the appeal of the Eritrean girl.

Expert Opinion Unaccompanied Minors final version