Case summaries
The Court found no violation of Article 8 ECHR took place as the requirements set out by the Swedish Temporary Restrictions Act were in line with the Family Reunification Directive and the European consensus. The balancing exercise was therefore performed correctly.
The Court found that the Swiss legislation sets stringent socio-economic requirements which in practice may render the right to family reunification impossible to exercise, in view of the personal situation of the sponsors residing in Switzerland and who cannot be expected to do the impossible to meet the conditions imposed on them.
Except for very limited exceptions, the statutory three-year waiting period for family reunification of persons granted ‘temporary protection’ does not allow for an individualised assessment of the interest of family unity in light of the concrete situation of the persons concerned. Eventually the Court finds a violation of Article 8 of the Convention since the measure (whose goal is not otherwise challenged) had a disproportionate impact in the case at hand.
The Dutch Council of State does not consider ‘the best interest of the child’-criteriοn automatically fulfilled, in the context of a Dublin transfer, when an unaccompanied minor can be transferred to an adult family member in another MS. In turn, it considers that the authorities have to substantially and individually investigate whether the best interest of the child is respected when transferring.
Given the emergency of the situation, family reunification could only be refused in circumstances where the relevant individual does not comply with principles of public order.
As a result, the Court concluded that there were serious doubts as to the legality of the decisions refusing family reunification.
A Union citizen’s lack of sufficient resources for their family member, who is a third-country national, not to become a burden on the national social system, cannot sufficiently establish a reason to refuse a derived right of residence on the basis of article 20 TFEU, if that refusal would result in the national having to leave the territory of the EU.
Secondly, a relationship of dependency does not exist solely because the national law requires spouses to live together.
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.
Applications for a visa for family reunification with subsidiary protection beneficiaries must be treated as particularly urgent if the holder of the right of residence is about to reach the age of 18. The Immigration Office must ensure that such applications are processed preferentially and expeditiously.
The principle of effectiveness and the objectives of the Family Reunification Directive preclude domestic legislation that foresees the automatic issue of an entry and residence permit for family reunification on the sole ground that the time limit to decide on the application has expired without having established the substantial requirements for obtaining such a permit, e.g. family links.
Detention conditions in Greek police stations and living conditions in Idomeni Camp in northern Greece for five unaccompanied children were in breach of Article 3 of the Convention. A further violation was found in respect of Article 5 § 1 regarding the “protective custody” of unaccompanied children in police stations.