Case summaries

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.

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.

An asylum applicant who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must still be regarded as a “minor” for the purposes of that provision.

When balancing the applicant’s right to family reunification and the protection of the rights of others in relation to the welfare of the state, which would be lessened if the application for family reunification were approved, the Supreme Court favours the latter since according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation when protecting the right to family life. 

The State is obliged to adopt legislation which allows the refugee to actually exercise the right to respect for family life in its territory. Under Article 53(3) of the Constitution of the Republic of Slovenia the scope of family life firstly includes the nuclear family and secondly, where specific factual circumstances dictate, members of the family who are not nuclear but who are similar or perform the same function.

The legislator limited the right to family reunification by enacting an exhaustive definition of eligible family members for reunification, excluding any other form of family unity.  According to the Constitutional Court, the legislator disproportionately restricted the right of refugees to respect for family life and violated the right of the appellant under the Article 53(3) of the Constitution.

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 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 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.