CJEU - Bundesrepublik Deutschland v SE, Case C-768/19, 09/09/2021

Facts:

In 2012, the son of the applicant came to Germany and lodged an asylum application. The applicant and his son are both Afghan nationals. In 2016, the German Federal Office for Migration and Refugees granted the applicant’s son subsidiary protection status and rejected his application for asylum but. In the same year, the applicant came to Germany and lodged a formal application for international protection. The Federal Office of Migration and Refugees refused to grant him refugee status as well as subsidiary protection status and found that there were no grounds for a prohibition of his deportation.

In 2018, the German Administrative Court upheld the applicant’s appeal against the decision of the Federal Office of Migration and Refugee and obliged the Federal Republic of Germany to grant the applicant subsidiary protection status since he was, at the time when he lodged his asylum application, a parent of an unmarried minor who had been granted subsidiary protection status.

The Federal Republic of Germany lodged an appeal before the German Federal Administrative Court claiming that, according to § 77 para. 1 of the German Asylum Act (AsylG), the relevant time for the examination of the factual and legal situation of assessing asylum application shall be at the time of the last oral proceeding or – if the decision is taken without oral proceedings – at the time the decision is taken. Since the son of the applicant was not a minor anymore at the time upon application pursuant to § 26 para. 3 AsylG which refers to Article 2(j) of the Qualification Directive. Against this backdrop, the German Federal Administrative Court submitted the following questions for a preliminary ruling:

1)     In the case of an applicant for asylum who, before the point at which the age of majority is reached by his child, by way of whom a family existed in the country of origin and to whom subsidiary protection status was granted, following the attainment of majority, on the basis of an application for protection filed before the age of majority was reached (“the beneficiary of protection”), entered the host Member State of the beneficiary of protection and also made an application for international protection there (“the applicant for asylum”), and in the case of a national provision which, in relation to the granting of a right to be granted subsidiary protection, that right being derived from the beneficiary of subsidiary protection, makes reference to Article 2(j) of the Qualification Directive, is the point in time at which the decision on the asylum application of the applicant for asylum is taken or an earlier point in time to be taken into account for the question as to whether the beneficiary of protection is a “minor” within the meaning of the third indent of Article 2(j) of the Qualification Directive, such as the point in time at which

a)      the beneficiary of protection was granted subsidiary protection status,

b)     the applicant for asylum made his asylum application,

c)      the applicant for asylum entered the host Member State, or

d)     the beneficiary of protection made his asylum application?

2)     In the event

a)      That the point in time at which the application is made is decisive:

Is the request for protection expressed in writing, verbally or in any other way and made known to the national authority responsible for the asylum application (request for asylum) or the formal application for international protection to be taken as the basis in this respect?

b)     that the point in time at which the applicant for asylum enters the territory or the point in time which he makes the asylum application is decisive: Is it also significant whether, at that point in time, the decision on the application for protection of the beneficiary of protection who was subsequently recognised as being a beneficiary of subsidiary protection had not yet been taken?

3)     a) What requirements are to be imposed in the situation described in Question 1 in order for the applicant for asylum to be a “family member” (Article 2(j) of the Qualification Directive who is present “in the same Member State in relation to the application for international protection” in which the person who was granted international protection is present and by way of whom the family “already” existed “in the country of origin”? Does this require, in particular, that family life between the beneficiary of protection and the applicant for asylum within the meaning of Article 7 of the Charter has been resumed in the host Member State, or is the mere simultaneous presence of the beneficiary of protection and the applicant for asylum in the host Member State sufficient in this respect? Is a parent a family member even if, depending on the circumstances of the individual case, entry into the territory was not intended for the purpose of actually assuming responsibility within the meaning of the third indent of Article 2(j) of the Qualification Directive for a beneficiary of international protection who is still a minor and unmarried?

b) If Question 3(a) is to be answered to the effect that family life between the beneficiary of protection and the applicant for asylum within the meaning of Article 7 of the Charter must have been resumed in the host Member State, is the point in time at which it resumed significant? In that regard, must account be taken, in particular, of whether family life was re-established within a certain period of time after the applicant for asylum entered the territory, or at the point in time at which the applicant for asylum makes the asylum application or at a point in time which the beneficiary of protection was still a minor?

4) Does the status of an applicant for asylum as a family member within the meaning of the third indent of Article 2(j) of the Qualification Directive end when the beneficiary of protection reaches the age of majority and the associated responsibility for a person who is a minor and unmarried ceases to exist? In the event that this is answered in the negative: Does this status as a family member (and the associated rights) continue to exit indefinitely beyond that point in time or does it cease to exist after a certain period of time (if so: what period of time?) or upon the occurrence of certain events (if so: which events?)?

Decision & reasoning:

Regarding question 1 and 2, the Court holds that the temporal scope of the third intend of Article 2(j) of the Qualification Directive to be qualified as a minor according to the provisions in this Directive encompasses that point in time in which the applicant – if necessary also informal – lodged a claim to seek for asylum. According to Article 2(k) of this Directive, ‘minor’ means a third-country national or stateless person below the age of 18 years. This provision, however, does not constitute the time in which this requirement needs to be examined, nor does it refer to domestic legislation of the Member State. The decisive point in time for the examination whether a person is a minor pursuant to Article 2(j) of this Directive is the point in time in which the applicant lodges an asylum claim [§ 42]. Therefore, a parent must lodge an asylum claim while the child, who is a beneficiary of international protection, is still a minor and that both family members in question are present in the same Member State before the beneficiary reaches the age of majority [§ 43]. Furthermore, the Court decides that a third-country national, who lodges an application for international protection, acquires the status of an applicant for international protection pursuant to Article 2(c) of the Qualification Directive from the point where he or she makes such an application. Contrary to the provisions regarding the formality regarding access to the procedure under Article 6 subpara. 1 and 2, as well as paragraphs 3 and 4 of this Directive, to ‘make’ an application for international protection does not require any administrative formalities [§ 48]. Therefore, it is sufficient that a third-country national makes an application for international protection to ‘other authorities’ according to Article 6(1) subpara. 2 of this Directive [§ 49].

Regarding the third question, the Court holds that the third indent of Article 2(j) of the Qualification Directive in conjunction with its Article 23(2) and Article 7 of the Charter of Fundamental Rights of the European Union must be interpreted in the way that the notion of ‘family members’ does not require an actual resumption of the family life between the parent, who benefitted international protection, and the child. The provisions of the Qualification Directive and the Charter facilitate the right of family life and their maintenance but it is ultimately up to the rights holders how they want to live their family life and there are, particularly, no requirements regarding the intensity of the family relations [§ 58].

Regarding the fourth question, the Court holds that the third indent of Article 2(j) in conjunction with Article 23(2) of the Qualification Directive must be interpreted in the way that the benefits which a family member obtained through the subsidiary protection status of his child must be maintained even after the child reaches majority, especially during that time in which his or her residence permit is valid pursuant to Article 24(2) [§ 64]. Moreover, Article 24(2) of this Directive does not rule out a differentiation between the residence permit of the beneficiary for international protection and the residence permit of the family member; the residence permit of the family member must be valid, however, for at least one year [§ 65].

Outcome:

1)     The relevant point in time for assessing the ‘minor’ status of the beneficiary of international protection pursuant to the third indent of Article 2(j) of the Qualification Direction is the date on which the applicant makes an – if necessary informal – application for international protection.

2)     The notion ‘family member’ according to the third indent of Article 2(j) of the Qualification Directive in conjunction with its Article 23(2) as well as Article 7 of the Charter of Fundamental Rights of the European Union does not require the actual resumption of family life between the parent who benefited international protection and the child.

3)     According to the third indent of Article 2(j) of the Qualification Directive in conjunction with its Article 23(2), the rights of a family member to claim the benefits referred to in Articles 24 to 35 of this Directive persist after the beneficiary of subsidiary protection reaches the age of majority, for the duration of the period of validity of the residence permit granted to them in accordance with Article 24(2) of this Directive.