Case summaries

The Algerian Kafala system does not create a parent/child relationship within the meaning of direct descendant under Directive 2004/38 but it does fall under the notion of other family members of Article 3(2)(a) of the same Directive. The State must therefore make a balanced and reasonable assessment which considering the age of the child, the closeness of the relationship whether the family have lived together; potential risk of exploitation/trafficking and the best interests of the child. 

Article 11(2) of Directive 2003/86 must be interpreted as precluding the rejection of an application for family reunification lodged by a sponsor in favour of a minor of whom she is allegedly the guardian solely on the grounds of lack of official documentary evidence of the family relationship and the sponsor’s inability to explain the absence of such evidence being deemed implausible on the basis of general country of origin information.

Authorities have to take into consideration the specific circumstances of the sponsor and the minor, including the difficulties they faced during and after their flight from their country.

The precarious living conditions in Calais and the failure of the French authorities to comply with judicial orders to protect the applicant, in view of his personal circumstances and young age, reach the threshold for a breach of Article 3.

The notification about the intention of withdrawal from the EU by the Member-State responsible for the examination of the application for international protection does not trigger the determining Member-State’s obligation to make use of the discretionary clause of Article 17(1) 604/2013 EU. Similarly, Article 6 (1) cannot be interpreted as imposing an obligation on the Member State that is not responsible to take into account the best interests of the child and to examine the application itself under 17 (1)

Article 8 (1) of the Dublin III Regulation provides for a subjective right to family reunification, both for the applicant himself and for the family members present in the Member State responsible. This right is also justiciable to the extent that denial of transfer affects the rights to family unity and the best interest of an unaccompanied minor.

The expiry of the time limit for the submission of a take charge request pursuant to Article 21 (1) of the Dublin III Regulation, as well as for the submission of a request to review the rejection of a take charge request (so-called "remonstration") pursuant to Article 5 (2) of the Implementing Regulation to the Dublin II Regulation, does not reverse the responsibility back to the requesting Member State if the failure to comply with the time limit cannot be attributed to the applicant and family unity and the best interests of the child take precedence over the procedural rules on time limits.

Due to the paramount importance of the right to family unit and the best interests of the child, the discretion under Article 17(2) of the Dublin III Regulation translates into a legal obligation of the Member State to invoke the sovereignty clause where there are close family ties. Beyond such family ties, no further special relationship or interdependency is required.

Whether a minor is "unaccompanied" within the meaning of Article 2 lit. j of the Dublin III Regulation depends on the domestic law in the Member State where the minor is present.

Requests for family reunification must be examined even if the third-country national, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban. Whether there is a relationship of dependency between the third-country national and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis.

The UK Secretary of State for the Home Department’s (SSHD) refusal to accede to a take charge request of a stateless wife and her child in Greece wishing to reunite with their British husband/father in the UK is a breach of Article 7 Charter/8 ECHR (and Article 6(1) of the HRA 1998) on the basis that the SSHD’s decisions were disproportionate and not justified. Notwithstanding that the husband/father is a British citizen, the Dublin Regulation applies, notably Articles 9 and 17(2). In respect of Article 9 Dublin Regulation III, it can be relied upon even where an individual in receipt of international protection subsequently naturalises as a British citizen. 

An asylum applicant who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must still be regarded as a “minor” for the purposes of that provision.

The applicant claimed that Germany violated his right of family life under Article 8 of the Convention by refusing to grant him a residence permit. 

The detention conditions, to which the applicants had been subjected to in police stations, while being under protective custody as unaccompanied minors, violated Article 3 ECHR.  Violation of Article 3 in conjunction with Article 13 on account of the applicants’ inability to bring a complaint against the detention conditions.

Their placement in protective custody was an unlawful detention measure under Article 5, as there were no time limits, no vulnerability assessment and no consideration of this form of custody as one of last resort. The applicants had no possibility to exercise their rights under Article 5 (4), as they could not establish contact with their lawyer and the lack of official detainee status would have raised practical obstacles in any attempt to challenge their detention.