Germany - Federal Administrative Court, Case No. BVerwG 1 C 4.21, 25/11/2021
Keywords:
| Keywords |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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." |
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Sponsor
Description
"Broadly, a person or entity which undertakes a (legal, financial or personal) engagement, promise or pledge, on behalf of another. In the EU context of Family Reunification, a third-country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her." |
Headnote:
The Federal Administrative Court found that Art. 3 of the Qualification Directive does not hinder Member States to allow parents and siblings, fulfilling the requirements for family members under Art. 2(j) of the Directive, to change their status of subsidiary protection into a refugee status which they derive from their minor sponsor.
Facts:
In 2015, the family consisting of the four claimants and the main applicant (born in 1998) left Aleppo and arrived in Germany where they filed applications for asylum. In 2016, the four claimants were granted the status of subsidiary protection, while the main applicant was granted refugee status.
The courts rejected the claimants' appeal to such attribution of different status. The Higher Administrative Court also rejected the claimants’ statement that they could derive a refugee status from their minor child who has been granted refugee status. It based its conclusion on the fact that the main applicant had not been a minor at the time of her own and her parents’ and siblings’ oral proceedings before the trial court.
The four claimants appealed before the Federal Administrative Court stating that national law, in accordance with Art. 23 para. 1 of the Qualification Directive, should be interpreted as only requiring the sponsor to be a minor at the moment when the parents and family members filed their application for a derived status of asylum at the federal office.
Decision & reasoning:
First question: Which moment is the decisive moment in time for finding a sponsor’s minority?
Following the recent case law of the CJEU in SE (C-768/19 of 9 September 2021), the Federal Administrative Court stated that the correct moment in time to decide on the age of the child is when the family members informally filed their application for a derived status.
Second question: Whether the national legislation, allowing parents to derive a refugee status from their child sponsor even if they have been granted the status of subsidiary protection, complies with EU law
The Federal Administrative Court decided that, based on German law, the parents’ and siblings’ current and own status of subsidiary protection is not a hindrance for them to obtain the derived refugee status from their minor child as they fulfil the requirements for that status under national law. The court found this to be so, even though the national law is less strict than EU law, as Article 3 of the Qualification Directive allows Member States to implement more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection.
In this case, the court found that the right to family unity allows Member States to grant a right to derived status of international protection to family members, including siblings.
The Federal Administrative Court also noted that Member States can implement more favourable rules to the extent that they comply with the aim of the Directive. In this case, the aim of the Qualification Directive is not undermined if Member States allow family members to derive the refugee status from their minor sponsor if the former have already been granted the status of subsidiary protection. It justified its reasoning by holding that the EU legislator explicitly stated that the status of subsidiary protection should only be granted if the requirements for refugee status are not met. Allowing family members to have their subsidiary protection status changed into a derived refugee status under German law was thus found to be in line with EU law.
Outcome:
The Federal Administrative Court granted the applicants’ appeal and found that they must be attributed a derived refugee status.
Observations/comments:
This summary was written by Carlotta Rohrbach, student at the Human Rights and Migration Law Clinic at the University of Gent.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Germany - Verwaltungsgerichtsordnung |
| Germany, Act, Asylum Act (Asylgesetz – AsylG), 26 June 1992 |
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 11 September 2007, 10 C 8.07 |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |
| CJEU - C-652/16 Ahmedbekova, 4 October 2018 |
| CJEU - C-542/13 M’Bodj, 18 December 2014 |
| Higher Administrative Court North Rhine-Westphalia (OVG NRW), 13.03.2020, 14 A 2778/17.A |
| CJEU - C 36/20 PPU, V.L. v Spain, 25 June 2020 |
| CJEU - C-768/19 Bundesrepublik Deutschland v SE |
| Germany - Federal Administrative Court, Case No. BVerwG 1 C 8.05, 09/05/2006 |
| Germany - Federal Administrative Court, Case No. BVerwG 3 C 34.05, 27/09/2006 |
| Germany - Higher Administrative Court of the Free Hanseatic City of Bremen, Case No. 2 LB 96/21, 20/07/2021 |
Other sources:
Günther, in: Kluth/Heusch, BeckOK Ausländerrecht, Stand: 1. Oktober 2021, Art. 26 AsylG Rn. 18
Epple, in: Funke.Kaiser, Gemeinschaftskommentar zum Asylgesetz (GK-AsylG), Stand: Mai 2020, Art. 26 AsylG Rn. 66
Marx, AsylG, 10.Aufl. 2019, Art. 16, Rn. 37
BT-Drs. 17/13063, S. 21