Case summaries

Article 10(2) of Directive 2003/86 allows Member States to define autonomously the nature of the relationship of dependence between the sponsor and the family member not referred in art. 4, as long as the national law have regard of all the relevant circumstances of the refugee’s situation through a case-by-case approach. 

A birth certificate is not a decision within the meaning of paragraph 108 FamFG. As a child grows older the need of beeing looked after by both its parents decreases. There is no necessity for interim order in the case of family reunification, when the child is about to come of age, as the right to subsequent immigration is not lost upon the child’s coming of age according to the CJEU.

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 case concerns an application for the annulment of the decision of the Appeals Committee which rejected the applicant’s previous application to overturn the decision of the Regional Asylum Office of Samos whereby he was denied international protection. The Court determined that the case was inadmissible, accepted the relevant justifications given by the Appeals Committee and rejected the application. 

The Appellant and the appellant’s  children were applying for leave to remain in Sweden due to affiliation with their husband and father respectively who had been granted a permanent right of residency in Sweden as a refugee - despite them not being able to prove their identities. Due to the appellant’s lack of relevant documentation for her and the children,  the court had to consider the circumstances in which a  person can be granted alleviation of evidentiary burden in terms of proving their identity.

The Migration Court of Appeal granted the appeal and held that the appellant and the children would be granted an alleviation of evidentiary burden. It further referred the case back to the Swedish Migration Agency who would have to complete a DNA-test aimed at establishing the kinship of the family and subsequently try the case again. 

The authorities followed an incorrect interpretation of the Dublin Regulation 604/2013 failing to take into account that the older applicant is the brother of the minor and should remain in Hungary under Article 10 of the Regulation, despite having lodged an application in Bulgaria.

The applicants appealed the decision to deny family reunification and family extension in relation to the refugee status of their daughter. The Administration denied this claim based on the fact that the applicants have a different nationality than their daughter, which would contravene the requirement established in article 40.a) of Law 12/2009. Article 41 of said Act, however, addresses this specific situation; However, the requirement of developing this provision by regulation had not been complied by Spain. The Court assesses whether this article should be applicable in the current case, despite not presenting the requirement of regulation, and concludes that the similarity of the wording of articles 40 and 41 is enough as to deem the latter applicable.

In countries where there is a high prevalence of female genital mutilation (FGM), as in Nigeria, non-excised persons can be considered as having a well-founded fear of persecution for reasons of membership of a particular social group within the meaning of Article 1A(2) of 1951 Refugee Convention. Refugee status can be granted where there is a considerable risk of excision and insufficient protection against this threat.

The Federal Supreme Court rules that the separate detention of families with minor children and the placement in a children’s home violates the right to family life in Art. 8 ECHR, if less intrusive measures than detention have not been taken into consideration.

Judicial review to challenge the failure/refusal of the Secretary of State for the Home Department (“SoS”) to determine the application of the applicant’s spouse and two youngest children for family reunification in the UK on the following grounds: a failure to apply the SoS published policy; irrationality; breach of all the family members’ rights under Art. 8 ECHR; and (regarding the two children in the UK), breach of the duties owed under s.55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).

The Upper Tribunal found that:

1) the Home Office family reunification policy embraces a series of flexible possibilities for proof of identity;

2) the reunion applications were not examined and determined which involves a public law misdemeanour within the applicant’s grounds for challenge; and

3) in any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.