Case summaries

In principle both parents may claim the right to join an unaccompanied minor refugee.  

This right to join a child will only apply up until the point that the latter comes of age.

Parents may present a claim for a visa by means of an application for temporary legal protection before the child comes of age. 

In family reunification cases it is only possible to use DNA testing to verify family ties in situations where serious doubts persist concerning kinship after other forms of evidence have been presented.

The case concerns discrimination against a refugee and his post-flight wife in the enjoyment of their right to family life because she was not allowed to join him in the UK. This was owed to more restrictive rules for the reunification of the spouses of refugees in comparison to workers or students, or to refugees married at the time of the flight.

It is the duty of the administrative body to deal reasonably with objections to intrusion into the private and family life of the applicant within international protection proceedings.

A beneficiary of refugee status sought family reunification unsuccessfully for her niece and nephew who she referred to as her own children; who had been orphaned; and whom she was not capable of formally adopting owing to the absence of available procedures in Somalia or where they were living in Ethiopia. The children had attained the age of majority after the Application had been made, but prior to a decision. The Minister refused family reunification on the basis that they were not dependent.

The Applicant was successful in her Judicial Review as the Court found that the Minister had erred in restricting the assessment of dependency to the narrow issue of being financially dependent. Dependency should take into account all relevant social, economic, personal, physical, emotional and cultural bonds between the refugee and family member being considered. Furthermore the Minister did not conduct a proper investigation as to what would be objectively required to amount to dependency, and appeared to carry out “no more than an arbitrary evaluation based on no identified criteria”.

The right to family reunification involving Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals and changes in the composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals. The case involves the right to respect for family life and how to take into consideration the children’s best interests.

Despite his family ties, the Applicant was denied an extension to his residence document as he was regarded as a threat to public order and security.

The question was what emphasis had to be placed on the Union membership of the Applicant’s spouse and child of whom they had joint custody.

It is the duty of the administrative authority to establish all of the facts that are important in a procedure, and thus to complete the background information for a decision to the extent that it forms a reliable basis for the decision-making itself.

The administrative authority is not relieved of this duty even with regard to the provisions of Section 34(3) of Act No 71/1967 Coll. on administrative procedure (hereinafter the “Administrative Procedure Code“), according to which the participants in a procedure must put forward the evidence that is known to them in support of their claims. 

The authority issuing residence permits did not issue a residence permit based on family ties because it suspected that the Applicants had entered a so-called marriage of convenience. In this case the Court examined whether the authorities could refuse to issue a residence permit, when the requirements for a permit were met, if they suspected that the Applicant had intensions to evade the rules on entry into the country.

This was an appeal against a decision to expel a widowed illiterate mother and five of her children who had been granted subsidiary protection in Bulgaria. Austria did not have to apply the sovereignty clause, as the situation in Bulgaria did not give rise to a real risk of a violation of Art 3 ECHR. Although the applicant’s sixth child had entered Austria and applied for asylum as an unaccompanied minor two years earlier, there was no violation of Art 8 ECHR because family reunification was possible in Bulgaria and there is no family life worth protecting.