Case summaries

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.

Article 6(1)(e) of the Schengen Borders Code does not preclude the issue of a return decision to a third-country national not subject to a visa requirement and who is present on the territory of a M.S. for a short stay if that national is suspected of having committed a criminal offence. Moreover, the Code does not impose an obligation to establish, in order to issue such a decision, that their conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned, as long as the principle of proportionality is respected.

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.

The High Court granted an order under section 4 of the Human Rights Act 1998 that the scheme of “Right to Rent” set out in sections 20-37 of the Immigration Act 2014 was incompatible with ECHR rights, along with a further order that it could not be extended beyond England without a further evaluation. 

A national measure requiring private coach transporters crossing internal borders to check the documents of the passengers on board and refuse the access to those not provided with passport or residence permit is prohibited under Article 21(a) of Regulation No 562/2006 (Schengen Borders Code) as it has an effect equivalent to that of border checks.

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.

In the case of doubts about family relationships, both the Federal Office for Immigration and Asylum (BFA) and the Austrian embassy abroad must for the purpose of family reunification enable applicants to have a DNA-analysis carried out at their request and inform them of this possibility. The purpose of this DNA-analysis is to enable the applicant to eliminate existing doubts about a family relationship and thus to achieve family reunification.

The three-month time limit for take back requests, as prescribed by Article 21(1) of the Dublin III Regulation, will apply as soon as the competent authorities of the relevant Member State have been informed, with certainty, of the fact that international protection has been requested. Where certain responsibilities for the registration of applications have been delegated to a competent legal entity, the authorities will be deemed to have been so informed once the legal entity in question has made a written record of the applicant’s intention to claim asylum. 

Article 47 CFR EU requires that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues.

It follows that Article 47 CFR EU requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court.