CJEU (Grand Chamber) - LW v Bundesrepublik Deutschland, Case C-91/20, 09/11/2021
| Country of Domestic Proceedings: | Germany |
| Country of applicant: | Tunisia |
| Court name: | Court of Justice of the European Union |
| Date of decision: | 09-11-2021 |
| Citation: | CJEU, Judgement of LW v Bundesrepublik Deutschland, C-91/20, 9 November 2021. |
| ECLI: | ECLI:EU:C:2021:898 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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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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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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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." |
Headnote:
The Court of Justice held that Directive 2011/95 does not preclude a Member State from granting refugee status to a minor through one of his parents, even though there is no risk of persecution in case of removal to his country of nationality (Tunisia).
Facts:
The applicant was born in Germany in 2017 and holds Tunisian nationality. The father, a Syrian national, was granted refugee status in Germany in 2015. The application for international protection by the mother and by the applicant were rejected. Although the Administrative Court rejected the application because of the fact that the applicant had no reason to fear persecution in Tunisia, the Federal Administrative Court of Germany discussed whether the interpretation of the German law is compatible with Directive 2011/95.
The Court highlighted that the applicant meets the legal requirements to be recognised as a refugee as an unmarried minor child of a parent who has been granted refugee status under German law. Thus, the preliminary question referred to the Court was whether Article 3 and Article 23(2) of Directive 2011/95 must be interpreted as precluding a Member State from granting refugee status to an unmarried minor child of a third-country national, including in the case where the child was born in the territory of that Member State and has the nationality of another third country in which he or she would not be at risk of persecution. Secondly, the German Court asked whether it is relevant to ascertain whether it is possible and reasonable for the child and his parents to relocate to that third country.
Decision & reasoning:
The Court first recalled that although Member States are allowed to apply more favourable standards for determining who qualifies for international protection, these standards must be in line with the rationale of the Directive. Secondly, the Court stated that the automatic extension of refugee status to the minor child of a beneficiary of international protection is consistent with the rationale of international protection. Thus, in light of Article 23 of Directive 2011/95 and the principle of the best interest of the child, the Court decided that Member States are allowed to grant international protection to family members of beneficiaries of international protection, even though they do not individually meet the requirements for international protection. In this context, the Court also stated that in the main proceedings, the asylum application of the applicant did not depend on whether it was possible and reasonably acceptable for her and her family to move to Tunisia, because such an interpretation would imply that her father's refugee status in Germany would be revoked.
Outcome:
The Court held that Article 3 and Article 23(2) of Directive 2011/95 must be interpreted as not precluding a Member State from granting refugee status to the minor child, through that child’s other parent, who has the nationality of another third country in which he or she would not be at risk of persecution.
Observations/comments:
This summary was written by Ekin Sakin, 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 - AsylG (Asylum Law) |
| Germany - AsylG (Asylum Law) - Article 3 (1) |
Cited Cases:
| Cited Cases |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |
| CJEU - C-720/17 Bilali, 23 May 2019 |
| CJEU - C-652/16 Ahmedbekova, 4 October 2018 |
| CJEU – C-255/19 Secretary of State for the Home Department v OA, 20 January 2021 |
| CJEU – C-507/19, Bundesrepublik Deutschland v. XT, 13 January 2021 |
Other sources:
Convention relating to the Status of Refugees (Geneva Convention), signed at Geneva on 28 July 1951, Articles 1(A)(2), 1(D).