Case summaries

The Court of Justice held that defending personal interests against illegally acting non-state actors due to state corruption can be regarded as ‘political opinion’ under Directive 2011/95 if perceived as opposition by the persecuting actors.

The Return Directive precludes the adoption of a return decision when the person concerned is suffering from a serious illness and there are substantial grounds to believe that their pain would significantly increase if returned, because effective treatment is not available there. Although the Directive does not require Member States to grant a right to residence to such third-country nationals, when implementing the Directive, the right to private and family life must be respected, which includes, among other elements, access to healthcare and medical treatment.

The Federal Administrative Court found that Art. 3 of the Qualification Directive does not hinder Member States to allow parents and siblings, fulfilling the requirements for family members under Art. 2(j) of the Directive, to change their status of subsidiary protection into a refugee status which they derive from their minor sponsor.

The Court decides that the relevant point in time to assess the ‘minor’ status of a beneficiary of international protection under the Qualification Directive is the date on which the applicant makes an (informal) application for international protection.

The Court decides that the notion of ‘family member’ under the Qualification Directive does not require an actual resumption of family life between the parent who benefited international protection and the child. Furthermore, the rights of a family member to claim the benefits under the Qualification Directive persist after the beneficiary of subsidiary protection reaches the age of majority, for the duration of the period of validity of the residence permit granted to them.

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. 

The CJEU ruled that a third-country national who lodged an application for international protection in a first Member State, then left and subsequently lodged a new application in a second Member State is not entitled to rely, in an action brought under Article 27(1) DRIII in that second Member State against a decision to transfer them, on the criterion for defining responsibility stablished in Article 9.  To conclude otherwise would not be in conformity with the Regulation’s general purpose to prevent secondary movements of individuals and the principle that an application for international protection must be assessed by a single Member State.

The CJEU also concluded that in the cases referred to in Article 20(5) DRIII, a possible transfer could occur without previously having been established that the requested Member State is responsible for examining the application. This is because the exercise of a take back request does not presume the responsibility of the requested Member State to examine the application, but that that Member State satisfies the conditions laid down in Article 20(5) or 18(1) (b) to (d). Adding to that, in a situation covered by Article 20(5), a Member State cannot issue a take back request when the applicant has provided reliable information establishing that that Member State must be regarded as responsible for the application.

Neither Austrian law nor the provisions of the Dublin III Regulation provide for legal remedies against a Member State’s rejection of a request for admission. The Dublin Regulation provides for a remonstration procedure between the Member States concerned in the event of a rejection, whereby after expiry of the remonstration period the requesting Member State is finally responsible for examining the application for international protection. A later agreement after the remonstration period has expired cannot establish any responsibility.

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.

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.