Alicja Slowik , 6 février 2024

In its ruling CR, GF, TY v Landeshauptmann von Wien (C‑560/20) delivered on 30 January 2024, the Court of Justice of the European Union clarified the scope of the right to family reunification of unaccompanied minor refugees as guaranteed by the Family Reunification Directive (Directive 2003/86). This instrument lays down the rules for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the EU Member States.

In the case at hand, RI, an unaccompanied minor of Syrian nationality arrived in Austria in 2015 and was granted refugee status on 5 January 2017. On 6 April 2017, his parents and his seriously ill adult sister, lodged applications for entry and residence in Austria for the purposes of family reunification with RI. Their applications were rejected by the Austrian authorities. RI’s parents and sister challenged the rejection decisions before the Administrative Court of Vienna. The national court decided to refer to the Court of Justice several questions on the interpretation of the Family Reunification Directive. It asked, in particular, whether, under EU law, a residence permit shall be granted to seriously ill adult sister of an unaccompanied minor where the refusal of such a permit would prevent the parents of the minor concerned from exercising their right to family reunification. It shall be recalled that the Family Reunification Directive provides for a separate, more favourable regime for family reunification for refugees compared to other third country nationals. Most importantly, the refugee and his or her family member(s) shall not be required to fulfil the conditions set out in Article 7 of the directive (concerning sufficient accommodation, sickness insurance and stable and regular resources in the Member State concerned). Article 10(3)(a) of the directive addresses the specific situation of unaccompanied minor refugees. According to this provision, Member States shall authorise the family reunification of a refugee who is an unaccompanied minor with his or her parents. However, neither Article 10(3)(a) or any other provision of the directive obliges Member States to authorise the entry and residence of a sister of the minor refugee.

In his Opinion, AG Collins first confirmed that the parents of RI shall have the right to be reunited with him under Article 10(3)(a) of the directive without being required to fulfil the conditions enumerated in Article 7 of the directive. However, in his view, Article 10(3)(a) does not confer on RI a right to family reunification with his sister. The AG underlined that “the text of that provision is unequivocal: it applies to unaccompanied minor refugees and their parents only”. Consequently, the Advocate General advised the Court to rule that the refugee shall not have the right to a family reunification with his sister under Article 10(3)(a). He did not exclude, however, that the sister of RI could potentially benefit from the family reunification with her parents once the latter are granted a residence permit in Austria.

In its ruling, the Court of Justice did not follow AG Collins. It highlighted that Article 10(3)(a) of the directive shall be interpreted in the light of Article 7 and Article 24(2) and (3) of the EU Charter of Fundamental Rights which provide for, respectively, the right to respect for private and family life, the obligation to have regard to the child’s best interests and right of a child to maintain on a regular basis a personal relationship with both his or her parents. The Court then put a strong emphasis on the exceptional circumstances of the case at hand. RI’s sister suffering from cerebral palsy was totally and permanently dependent on material assistance of her parents. It was clear that if RI’s sister “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, stemming from Article 10(3)(a) of Directive 2003/86.” The Court ruled that in these circumstances, in order to preserve the effectiveness (effet utile) of RI’s right to family reunification with his parents and to ensure the respect of fundamental rights enshrined in Article 7 and Article 24(2) and (3) of the EU Charter, a residence permit shall be granted also to RI’s sister.

The Court also indicated that pursuant to Article 10(3)(a) of the directive where the parents of an unaccompanied minor refugee apply for family reunification, Member States cannot require from minors or their parents to meet the conditions set out in Article 7(1) of the directive concerning sufficient accommodation, sickness insurance and stable and regular resources in the Member State concerned. The same applies with respect to the application submitted by the seriously ill sister of the refugee concerned. 

The present ruling reveals the close relationship between the Family Reunification Directive and the relevant EU Charter provisions leading to the Court’s broad interpretation of the directive. The Court’s reasoning significantly differs from the one proposed by AG Collins who opted for a more literal reading of the directive. The wide interpretation of the directive was possible in the light of the exceptional factual background of the case. The concern for preserving the effectiveness of the right to family reunification led to the significant extension of the personal scope of Article 10(3)(a) of the Family Reunification Directive.

Reproduction autorisée avec la référence suivante : Alicja Słowik, Preserving the effectiveness of the right to family reunification of unaccompanied minor refugees, actualité n° 4/2024, publiée le 6 février 2024, par le Centre d’études juridiques européennes, disponible sur www.ceje.ch