Luxembourg - Administrative Tribunal, 37507, 31 January 2017
| Country of Decision: | Luxembourg |
| Country of applicant: | Russia |
| Court name: | Administrative Tribunal, Fourth Chamber |
| Date of decision: | 31-01-2017 |
| Citation: | 37507 |
Keywords:
| Keywords |
|
Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
|
Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
Regarding family reunification, individuals can be considered as belonging to the same family if there is a clear economic dependency, not merely because they have biological ties. In order to establish this dependency, the judge may use both national and international sources.
Facts:
The applicant, a woman of Russian nationality, applied for a residence permit for private reasons, for family reunification, with the Luxembourg authorities. By letter of 09 November 2015, she was informed that her request had been rejected, which she then appealed.
Decision & reasoning:
The tribunal stated that in order for the family reunification to be granted, there is one condition to fulfill: the member of the family (the one applying) should be in charge of the family member abroad and with whom the applicant would like to be reunited.
At this stage, the expression “in charge of” needs to be defined. The tribunal made a reference to the parliamentary preparation work (they themselves referred to CJEU jurisprudence). The tribunal found that an economically dependent person is a person that requires material support from the applicant, to the point where this support is the only way the individual is able to provide for their own basic necessities in the country of origin (p.11/13).
Regarding the correct moment in which to appreciate this dependency, the judge made a direct reference to CJEU case law in order to declare that the provision in question is aiming at preserving family unity. In that sense, the dependency must exist at the moment when the request is made to the Luxembourg authorities.
In reality, it is important to remark that the tribunal examined factually the relation of the dependency of the mother. In order to do so, the tribunal does not hesitate to compare the personal situation of the applicant with that of the general population, which is to be taken into account within the economical context of the country concerned (Russia), and especially, to be taken into account according to international sources, even though these are not expressly mentioned in the ruling.
Outcome:
Having found that the personal situation of the mother was beyond, without a doubt, in a situation of dependency, the tribunal found that the State had no other choice but to grant this request of family reunification.
Subsequent proceedings:
The judgment was appealed but the Government lost the appeal with the court's judgment no. 39173C, delivered on 29 June 2017. You can find the EDAL summary here.
Observations/comments:
Regarding the sources, it is important to note that the tribunal did not hesitate to take into account the considerations brought forth by the CJEU and to refer to international sources in order to better understand the situation regarding the country of residence of the applicant’s family member.
Regarding the notion of family, the judge provided for a larger interpretation of the notion as the tribunal did not limit itself to simply looking at biological links between the individuals concerned. This decisions shows that it is possible to unite two or more individuals based on the notion of economic dependency in order to grant family reunification.
The original version of this summary was written by Passerell a.s.b.l. and a translation completed by Jessica Pradille.
Cited National Legislation:
| Cited National Legislation |
| Luxembourg - o Law of 29 August 2008 : articles 12 (1) and d) and 13 |