CJEU - C‑380/1, K, B v Staatssecretaris van Veiligheid en Justitie

Facts:

The applicant, a third country national, was awarded subsidiary protection status in the Netherlands in 2014. In 2015, he applied for a visa for the purposes of family reunification for his wife and minor daughter. 

The State Secretary rejected that application on the ground that the visa application was lodged more than three months after he had obtained a residence permit in the Netherlands, without that delay being excusable.

This decision was appealed but upheld by the national courts as the rules of the Family Reunification Directive 2003/86 (including the three month rule) apply directly and unconditionally to beneficiaries of subsidiary protection. As the Netherlands legislature chose to apply those rules to beneficiaries of subsidiary protection in order to ensure that they are treated in the same way as refugees.

The national court asked the court two questions:

1. Whether the CJEU has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Family Reunification Directive 2003/86 in a situation where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation under national law.
2. Whether Article 12(1) of Family Reunification Directive 2003/86 precludes national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground hat that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules.

Decision & reasoning:

In order to answer the first question, the Court first looks to Article 3(2)(c) of Directive 2003/86 which states that that Directive is not to apply where the sponsor is authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States.

The Directive does not apply directly to subsidiary protection status holders under EU law. The Court notes that subsidiary protection status under EU law was introduced by Directive 2004/83, which was adopted after Directive 2003/86. Therefore, the absence of a direct reference to that status in that directive cannot be regarded as decisive.

In addition,  according to the Court, it is clear from the amended Proposal for a Council Directive on the right to family reunification COM(2000) 624 final, that the exclusion contained in Article 3(2)(c) of Directive 2003/86 was introduced precisely with a view to the future adoption of a common subsidiary protection status.

Therefore, Directive 2003/86 must be interpreted as not applying to third country national family members of a beneficiary of subsidiary protection.

However, it is clear from previous case law that the Court has jurisdiction to give a 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 by domestic law due to a renvoi made by that law to the content of those provisions. In these situations, it is in the interest of EU law to provide an interpretation in order to ensure uniformity across the member states.

Therefore, as Article 12(1) was made directly and unconditionally applicable to such a situation under national law, the Court has jurisdiction to interpret it.

In answer to the second question, the Court first notes that Member States are free to not process applications for family reunification lodged by refugees under the more favourable rules set out in Article 12(1) of Directive 2003/86 but under the general rules for applications for family reunification where those applications are lodged after the time limit stipulated in the third subparagraph of Article 12(1) of that directive has elapsed.

The Court notes that a decision of a Member State to require that the conditions set out in Article 7(1), the three-month time limit, are satisfied does not prevent the merits of the request for family reunification from subsequently being examined, in accordance with Article 5(5) and with Article 17. Instead, the request can be examined based on the best interests of minor children, the nature and solidity of the person’s family relationships, the duration of his residence in the Member State and of the existence of family, cultural and social ties with his country of origin. In that context, the Member State in question will be able to comply with the requirement, under Article 17 to examine applications for family reunification on a case-by-case basis according to which account must be taken of specificities related to the sponsor’s refugee status.

In conclusion, the Court found that Article 12(1) does not preclude national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules provided that that legislation:

–        lays down that such a ground of refusal cannot apply to situations in which particular circumstances render the late submission of the initial application objectively excusable;

–        lays down that the persons concerned are to be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively; and

–        ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in Articles 10 and 11 or in Article 12(2) of the directive.

Outcome:

1. The Court of Justice has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation under national law.

2. Article 12(1) of Directive 2003/86 does not preclude national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules provided that that legislation:

– lays down that such a ground of refusal cannot apply to situations in which particular circumstances render the late submission of the initial application objectively excusable;

– lays down that the persons concerned are to be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively; and

– ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in Articles 10 and 11 or in Article 12(2) of the directive.