Germany - Federal Administrative Court, 18 April 2013, 19 C 9.12
Keywords:
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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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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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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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." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
In principle both parents may claim the right to join an unaccompanied minor refugee.
This right to join a child will only apply up until the point that the latter comes of age.
Parents may present a claim for a visa by means of an application for temporary legal protection before the child comes of age.
Facts:
This procedure concerns the issue of how claims for parents to join unaccompanied minor refugees can be implemented. The son of a Yiddish family from Iraq, born on 1 December 1992, travelled alone to Germany and applied for asylum. He was granted refugee status in June 2009.
In November 2009 his parents and siblings applied for a visa from the German embassy in Damascus for the family to be reunited. The embassy stated that only the parents would be able to obtain a visa. The father then travelled to Germany and obtained residence permit status. However, the visa applications made by the mother and siblings of the minor refugee living in Germany were declined.
The Administrative Court of Berlin decided in November 2010 that the refugee’s mother did have the right to claim family reunification but that the siblings did not. The High Administrative Court of Berlin-Brandenburg overturned this decision and decided in December 2011 that neither the mother nor the siblings of the refugee living in Germany had the right to claim family reunification. In the case of the mother, the original claim to join her son had been invalidated because the father had resided in the interim in Germany. One of the requirements for her claim had been that “no parent with personal custody” was permitted to reside in Germany. In the case of the siblings, the requirement of “exceptional difficulty” demanded by law had not been fulfilled.
The family appealed to the Federal Administrative Court against the decision of the High Administrative Court for a review.
Decision & reasoning:
At the time of her application for a visa in November 2009, the Applicant was authorised to claim the issuance of a visa to join her minor son who was recognised as a refugee in Germany. The German embassy acted unlawfully by only issuing one parent with a visa for family reunification.
This is evident from the clear wording of the German Residence Act on the subject in addition to Article 10 (3) (a) of Directive 2003/86/EC. The latter obliges Member States to grant minor unaccompanied refugees the right to be joined by “first-degree relatives in an ascending line”. The Directive thus grants both parents the right to claim family reunification and not simply one parent.
Even if there are other minor children requiring care in the home country, this does not justify any limitation on the right to family reunification. Pursuant to Article 6 (2) of the German Basic Law, decisions relating to the care of their children are primarily the responsibilty of the parents.
The Applicant’s claim for family reunification is not invalidated by the fact that her minor son was no longer without parental support following the arrival of his father in March 2010. Article 2 (f) of the Directive states that an individual is only to be considered as an “unaccompanied minor person” for as long as he is “not actually in the care” of a responsible adult. This applies in cases in which a parent travelled to Germany with the minor person at the outset or was already in the country to welcome the latter. However, if both parents arrive in the country at the same time or within a short period, it cannot be assumed that a responsible adult was already residing in Germany. Otherwise the competent authorities would be able to honour the claim for family reunification, for which both parents are eligible in principle, through unlawful means.
However, the claim for family reunification made by the mother of the refugee living in Germany was invalidated by the fact that her son reached the age of 18 on 1 December 2010. Her claim cannot be upheld by the fact that her application was made prior to that date. Her claim could have been enforced with the help of temporary legal protection before her son reached the age of 18.
The siblings of the refugee living in Germany did not from the outset have the right to join their brother even before the time of the application. In order to obtain such a right, a situation of “exceptional difficulty” would have to prevail in relation to the family unity meaning that the family member living in Germany or abroad would not be in a position to lead an independent life. Problems existing in the country of origin which stem only from political circumstances do not, however, constitute exceptional difficulties in this context.
Outcome:
The review was rejected. The mother did initially have a claim to join her son who was recognised as a refugee in Germany but the claim was invalidated as in the meantime her son reached the age of 18. The siblings did not have any claim to join their brother even at the time of the visa application.
Observations/comments:
See also asyl.net M20813
Relevant International and European Legislation:
Other sources:
Hailbronner/Carlitz, in: Hailbronner, EU Immigration and Asylum Law, 2010, p. 253, margin number 9.
Commission statement on the directive of 1 December 1999 – KOM <1999>638 conclusive.
Marx, in Gemeinschaftskommentar Aufenthaltsgesetz, February 2013, clause 36, margin number 25.