Case summaries

A national law which requires the sponsor and his/her spouse to have reached the age of 21 by the date on which the application for family reunification is submitted (rather than by the date on which the decision on the application is made) is consistent with Art. 4 (5) of the Family Reunion Directive (Directive 2003/86/EC)

The International Protection Act's (ZMZ) definition of family members is not inconsistent with the Constitution of the Republic of Slovenia nor with Article 8 of the European Convention on Human Rights  (ECHR).

The ZMZ does not give the body that decides on international protection the discretion to broaden the circle of family members in special circumstances, nor are such obligations or discretions given by EU legislation or the ECHR.

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.

The applicant sought to rely on her Islamic proxy marriage to her husband, a recognised refugee in Ireland, to resist removal to the UK under the Dublin Regulations. Her application for judicial review failed as she was held to have forfeited her right under Article 7 of the Dublin II Regulation due to delay on her part in asserting that right.

The Family Reunification Directive does not make a distinction between whether a family relationship arose before or after the entry of the resident into the Member State. An application for family reunification may not be refused where the sponsor, the resident within EU territory, has proved that he has stable and regular resources which are sufficient to maintain himself and the members of his family, but who, given the level of his resources, will, nevertheless, be entitled to claim special assistance in order to meet exceptional, individually determined, essential living costs, tax refunds, or income-support measures.

The provisions of Article 29(1)(b) of the Legislative Decree of 25 July 1998, No 286, which allow reunification with adult children to take place under stricter conditions than those relating to underage children or dependent parents, are consistent with the Constitution.

The European Parliament sought the annulment of Article 4(1), Article 4(6) and Article 8 of the Family Reunification Directive, as being incompatible with the right to respect for family life and non-discrimination based on age.

The Court found that these provisions created a limited margin of appreciation for Member States which was no greater than that allowed for in ECtHR case law, and could be exercised compatibly with fundamental rights.