CJEU – C-635/17, E. v Staatssecretaris van Veiligheid en Justitie

A., Eritrean citizen and beneficiary of subsidiary protection in the Netherlands, lodged, on behalf of E., an application for family reunification. She affirmed to be E.’s aunt and his guardian since the death of his biological parents.

The State Secretary rejected the application. The decision was based on the fact that (1) no official documentary evidence had been provided to substantiate the family relationship between E. and A. and that (2) no plausible explanation had been given for the impossibility of providing such documentary evidence. The State Secretary asserted that, in the light of the circumstances, the application could be rejected without it being necessary to arrange an interview with E. or A. for the purposes of substantiating their family relationship. The complaint lodged against that decision was rejected.

Before the referring court, the State Secretary abandoned some of his objections. The only elements still in dispute in the proceeding are therefore those relating to the lack of death certificates for E.’s biological parents and the plausibility of the explanations provided in that regard by A.

The referring court decided to stay the proceeding and to refer two questions to the CJEU for a preliminary ruling:

-  Does the Court of Justice have jurisdiction to answer the  referred questions, considering that Directive 2003/86 has been declared, under Netherlands law, directly and unconditionally applicable to persons with subsidiary protection status?

-   Must Article 11(2) of Directive 2003/86 be interpreted, in the present circumstances, as precluding the authorities from rejecting the application for family reunification without taking into consideration the specific conditions of the applicant and of the minor?

The first question

Despite Article 3(2) c) of Directive 2003/86, which excludes the application of the Directive to cases of residence based on subsidiary forms of protection, the Court has jurisdiction to answer the referred questions under Article 267 TFEU. Indeed, it is clear from the Court’s settled case-law that the CJEU has jurisdiction to give preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable to those facts by domestic law.

The second question

Since A. claims to be E.’s guardian, the application for family reunification at issue falls within the situation referred to in Article 10(2) of Directive 2003/86. Therefore, since Netherlands law has made the Directive applicable also to persons with subsidiary protection status, Article 11 of the Directive must be applied to the case at issue.

In interpreting Article 11, national authorities have a margin of discretion. Nevertheless, this margin must not be used in a manner that would undermine the objective of the Directive or be in contrast with the fundamental rights of the European Union. Accordingly, in interpreting Article 11 of the Directive, national authorities must take into account Articles 7, 24(2) and 24(3) of the Charter of Fundamental Rights of the EU relating to the best interest of the child and other similar considerations. Moreover, authorities should also consider recital 8 and Article 17 of the Directive, which relate respectively to the difficulty for refugees to produce official documents or to get in touch with consular authorities of their country of origin, the obligation for authorities to conduct an individual assessment of applications for family reunification.

Therefore, in the absence of particular circumstances, e.g. the sponsor fails to fulfil his obligation to cooperate or it is apparent that the application is fraudulent, the lack of official documentary evidence of the family relationship and the potential implausibility of the explanations provided in that regard must be considered as elements to be taken into account in the case-by-case assessment of all the relevant elements of the specific case. In this assessment, the national authorities have to take into account, inter alia, the personality of the sponsor and the difficulties they are facing, and ensure that requirements in respect of probative value and plausibility of the evidence are always proportionate. The competent national authorities are not freed from the obligation laid down by Article 11(2) of Directive 2003/86 to take other evidence into account.

The file before the Court does not reveal any breach of A.’s obligation to cooperate; conversely, it is not apparent that the authorities have taken into account either the particular difficulties of A. and E. or E.’s age.

2.     Article 11(2) of Directive 2003/86 must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, in which an application for family reunification has been lodged by a sponsor benefiting from subsidiary protection in favour of a minor of whom she is the aunt and allegedly the guardian, and who resides as a refugee and without family ties in a third country, that application from being rejected solely on the ground that the sponsor has not provided official documentary evidence of the death of the minor’s biological parents and, consequently, that she has an actual family relationship with him, and that the explanation given by the sponsor to justify her inability to provide such evidence has been deemed implausible by the competent authorities solely on the basis of the general information available concerning the situation in the country of origin, without taking into consideration the specific circumstances of the sponsor and the minor and the particular difficulties they have encountered, according to their testimony, before and after fleeing their country of origin.