Case summaries

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 of Justice held that Directive 2011/95 does not preclude a Member State from granting refugee status to a minor through one of his parents, even though there is no risk of persecution in case of removal to his country of nationality (Tunisia).

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.

Except for very limited exceptions, the statutory three-year waiting period for family reunification of persons granted ‘temporary protection’ does not allow for an individualised assessment of the interest of family unity in light of the concrete situation of the persons concerned. Eventually the Court finds a violation of Article 8 of the Convention since the measure (whose goal is not otherwise challenged) had a disproportionate impact in the case at hand.

A Guinean woman who has been forced into marriage at a young age and subsequently harassed into marrying her late husband’s brother, is a refugee under article 1, section A §2 of the Geneva Convention. She risks being persecuted by reason of her membership in the social group of women, and considering the regular violation of women’s rights occuring in Guinea.

CJEU rules on the correct processing of applications for international protection lodged separately by family members and the interrelationship between them.

When examining the acceptance of an asylum claim, the authorities have to study whether the testimony of the applicant is based on presumably true facts. Only if it is manifestly false could the admission of this application be denied.

The principle of family unity has to be taken into account regarding the assessment of the circumstances of the applicant, especially since his sister’s application for international protection was accepted.

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.