Childhood’s End? The Court of Justice upholds unaccompanied child refugees’ right to family reunion

Professor Steve Peers,
University of Essex

Turning 18 is a big moment in any
young person’s life. Although it rarely entails, by itself, an immediate change
in their social and economic links with their parents, it is widely recognised
as a significant rite of legal
passage, marking as it does the official date of becoming an adult.

But what if the main legal impact
of turning 18 is not the enhancement of a young person’s legal rights, but
rather their deterioration? That is often the scenario in immigration or asylum
law, in particular for those who need protection the most: unaccompanied
minors. Since immigration and asylum procedures often take some time, the
question then arises what happens if applicants are underage when a process
began, but become an adult before it finishes. Do they retain throughout that
process the special legal protection accorded to children? At what point
exactly does that special legal status end?

That was the issue in yesterday’s
judgment in A and S, which
was the first time the Court of Justice has ruled on the family reunion rights
of child refugees. The judgment concerns the EU’s family reunion Directive,
which contains special rules for the family reunion of refugees in general, and
unaccompanied minor refugees in particular. 
However, it is possible that it has an impact on the status of young
people in EU immigration and asylum law more generally.

The basic EU rules on family reunion

The EU’s family reunion Directive
sets minimum standards, so states can be more generous if they wish. It mainly
concerns reunion of spouses and minor children with a non-EU sponsor; admission
of further family members is optional in most cases. It does not apply to the
UK, Ireland and Denmark. However, it will
apply to family reunion of UK citizens in the EU (besides those living in
Ireland and Denmark) after the post-Brexit transition period, when the UK is no
longer covered by EU free movement law, unless (a) they are covered by the
withdrawal agreement (see discussion here), or (b) the EU (or, if legally possible, individual
Member States) and the UK agree special rules on post-Brexit family migration.

The standard rules in the
Directive require that: the sponsor has a residence permit valid for at least
one year, and has “reasonable prospects” of obtaining permanent residence; the
family members must reside outside the territory when the application is made (although
Member States can derogate from that rule); “public policy, public security or
public health” are grounds for rejection; conditions relating to accommodation,
sickness insurance and “stable and regular resources” may be imposed; Member
States may require “integration measures”; and there can be a waiting period of
two years of lawful stay of the sponsor before family reunion takes place.

There are also exclusions from the
scope of the Directive. It does not apply at all to: asylum seekers; persons
with temporary protection; persons with subsidiary protection on the basis of
national or international law; and family members of EU citizens (whether they
have moved within the EU or not). Implicitly it does not apply to irregular
migrants, since by definition they do not have a residence permit with the prospect
of long-term residence, until and unless Member States decide to regularise
their status.   

Member States can set lower standards than the Directive,
where it allows for such derogations, although this is subject to detailed
conditions. These derogations exist as regards: children over 12, who arrive
separately from the rest of the family; minimum ages for the sponsor or spouse;
children over 15; and a waiting period of three years.

The Court of Justice has ruled on
the Directive several times, as regards: its validity in light of human rights
concerns (EP v Council);
its application to dual EU/non-EU citizens (O and S) the
sufficient resources condition (Chakroun and Khachab); the
minimum age of spouses (Noorzia,
discussed here); and the
integration conditions (K and A,
discussed here). Pending
cases concern: the application of the Directive by analogy to family reunion
with “home State” EU citizens (C and A) and
persons with subsidiary protection (K and B and E); the
rejection of a separate residence permit due to failure to comply with
integration conditions (K); and loss of
a residence permit due to fraud which the family member was unaware of (YZ and others).

As well as the special rules for
refugee family reunion set out in the original Directive, subsequent EU legislation
contains more favourable rules for the family reunion of other groups of non-EU
citizens: holders of an EU Blue Card for
highly-skilled workers (discussed here); intra-corporate transferees
(discussed here); and researchers
(discussed here). The proposal to amend
the Blue Card law (discussed here) would enhance
these rules further. Yesterday’s judgment is the first time the ECJ has
interpreted any of these special

Exceptions for

The special rules apply to a
refugee who has been “recognised” by a Member State, meaning that their asylum
application for refugee status in that State was successful. A “refugee” is
defined not by reference to EU law, but to international law – the UN (Geneva) Convention on the Status of Refugees and its protocol – since the
Directive was adopted before the EU adopted its own asylum laws. Member States.
Member States may limit the special rules to family relationships which predate
entry to the Member State.

These rules waive a number of
conditions for family reunion: the optional derogation for those over 12; the
conditions relating to accommodation, sickness insurance and “stable and
regular resources” (although Member States can
apply those conditions if the sponsor or family members have “special links”
with a non-EU country, or if the application was submitted more than three
months after refugee status was granted); and the waiting period. The rules on
evidence of family relationships are also relaxed, in the event that
documentary evidence is unavailable. Finally, the optional “integration
measures” requirement can only be applied after family reunion, whether the
family relationship existed before entry or not. 

Conversely, other conditions still
apply: the requirement of a residence permit valid for at least one year, with
“reasonable prospects” of obtaining permanent residence; residence outside the
territory when the application is made; and “public policy, public security or
public health”. Satisfying the first of these criteria is made easier by EU
law, since the Qualification Directive
requires refugees, once their status is recognised, to receive a residence
permit valid for at least three years, and refugees can qualify for EU
long-term residence status under the relevant Directive.

Most importantly for our case,
the refugee rules make the admission of the parents of unaccompanied minor
refugees mandatory, rather than optional; and they waive the conditions that
otherwise apply to the admission of migrants’ parents (they must be “dependent”
on the sponsor and they “do not enjoy proper family support in the country of

The judgment

The A and S case concerns a young Eritrean woman who arrived in the
Netherlands and made an asylum application just before turning 18. Her
application was successful after her birthday, and a NGO shortly afterward
applied on her behalf for admission of her parents and siblings on the basis of
the special rules in the family reunion Directive.  But could she rely on the special rules at
all – given that she was over 18 when the application for family reunion was
made, and indeed when her refugee status was recognised?

The Dutch government argued that
the relevant date when a person must be considered a minor should be determined
by national law, while the Commission argued for the date of the application
for family reunion, and the Polish government argued for the date of the
decision on the family reunion application. The applicants (the young woman’s
parents) argued for the date of her initial entry onto the territory. No one
argued for another reasonable possibility: the date of the decision on the
refugee application (although that would raise the question of what the date
would be if that decision was appealed). Ultimately the Court decided that the
relevant date was the date of
applying for refugee status

The Court’s starting point was
(as it had ruled before) the “right” of family reunion guaranteed by the
Directive, which the addition of the intention (in the preamble of the
Directive) to ensure “more favourable conditions for refugees for the exercise
of” that right, “on account of the reasons which obliged them to flee their
country and prevent them from leading a normal family life there”. Those more
favourable rules include a mandatory admission of the parents of unaccompanied
minors, waiving the normal conditions which would usually apply.

Next, the Court noted that the
definition of “unaccompanied minor” in the Directive was not absolutely fixed
at entry: parents could arrive after the child’s entry, or desert the child
after entry. In that context, it was unclear from the text of the Directive
when the requirement of being 18 had to apply. But that did not mean Member
States had discretion to decide that issue; the Court applied the normal rule
that in the absence of an express reference to the laws of the Member States, a
provision of EU law “must normally be given an autonomous and uniform interpretation
throughout the European Union, and that interpretation must take into account,
inter alia, the context of the provision and the objective pursued by the
legislation in question”.

Since other provisions of the
Directive refer explicitly to national law, the absence of such a reference in
the definition of “unaccompanied minor” had an a contrario effect. The objective of the Directive was to give a
right of admission to their parents, in the context of protecting family life
with more favourable conditions for refugees. This case had to be distinguished
from Noorzia, on the minimum age of
spouses for family reunion, which concerned an optional rule that expressly
gave Member States discretion to decide on the age.  Ultimately, then, the issue could not be left
to each Member State to determine.

Rather, the uniform definition of
“unaccompanied minor” had to be determined “by reference to the wording,
general scheme and objective of that directive, taking into account the
regulatory context in which it is found and the general principles of EU law”.  As noted already, the wording didn’t settle
the issue. The general scheme included the exclusion of asylum-seekers from the
scope of the Directive, and the application of the special rules only after the
refugee had been “recognised as such by the Member States”. In that context,
the Court noted that the EU’s Qualification Directive requires refugee status
to be granted if an applicant satisfies the relevant conditions, and states
that “recognition of refugee status is a declaratory act”, so that a person who
meets the conditions for refugee status “has a subjective right to be
recognised as having refugee status…even before the formal decision is adopted
in that regard”.

So it followed that the date for
assessing the applicant’s age could not be when the decision on refugee status
was taken.  Such an interpretation would
make status as a minor dependent on the functioning of national
administrations, and thus undermine the effectiveness of the family reunion
rules and the aims of the Directive, along with “the principles of equal
treatment and legal certainty”. That’s because two different children of the
same age who applied for asylum would be in a different position depending on
how quickly their application was processed, an issue which was outside their
control – governed rather by Member States’ decisions about organising their
administration. In any event, due to “substantial surges” in asylum
applications, decision making might be long winded and “time limits laid down
in that regard by EU law are often exceeded”, so a “substantial proportion of
refugees” who are unaccompanied minors might be denied their family reunion
right. (Note that, with respect, the Court is confused here: the rules in the
EU’s asylum
procedures Directive
on time limits to decide on asylum applications don’t
apply until July 2018).

Rather than taking up the option
in EU law to fast-track such cases, there might be the “opposite effect”, which
would frustrate the objectives of EU legislation and the EU Charter rules on
rights of the child. Here the Court obliquely recognises the possible cynicism
of national interior ministries, which might simply delay deciding on
applications until a child turns 18 if that would lead to preventing the
admission of parents. Furthermore the Court rules that using the date of the
decision on refugee recognition would “undermine legal certainty” for the young
applicants as regards their family reunion.

The Court’s
preferred interpretation – using the date
on which the asylum application
was submitted – “enables identical treatment and foreseeability to be
guaranteed for all applicants who are in the same situation chronologically”, as
the outcome would depend on facts intrinsic to them, not to the efficiency of
national administrations.  However, the
Court did accept the argument of the Dutch government and the Commission that
some time limit should apply. In the judges’ view, a “reasonable time” would “in
principle” be three months after the decision on refugee status, matching the optional
three-month deadline explicitly set out in the Directive for refugees to make
an application for family reunion before the conditions of accommodation,
sickness insurance and sufficient resources apply.

Finally, the
Court rejected other possible dates to determine the young person’s age:
date of entry into the territory of a Member State had to be rejected because
of the link of the family reunion right with refugee status, which could only
be granted after an asylum application; and the date of applying for family
reunion, or the date of the decision on that application, would infringe the
basic logic of the Court’s reasoning.


The core motivation of the Court’s
judgment – to give broad effect to family reunion rights in general, and to the
special family reunion rights of child refugees in particular – reflects a
rights-based reasoning, rather than the control-based approach taken by many
Member States and the EU institutions during the perceived “refugee crisis” of
the last few years. Although the Court ties its interpretation of the family
reunion Directive closely to the asylum process – even though there was no EU
asylum law when the Directive was adopted – it nevertheless views that process
with suspicion, as a potential mechanism for frustrating the applicant’s
rights. The Court may have an opportunity to develop this line of reasoning
further soon, if it is willing to answer questions in the pending cases (referred
to above) where the Member State concerned has extended the special rules for
refugees in the family reunion Directive to apply also to sponsors with
subsidiary protection status (an alternative form of “international protection”
which applies where applicants don’t satisfy the criteria for refugee status).

If the Court had fully followed
its own logic on the declaratory effect of granting refugee status, then its
final conclusion of using the date when the minor applies for asylum is
suspect, for the child concerned must have been a refugee either as soon as
they entered the territory, or at some later point (likely before they actually
applied for asylum) when the situation in their country of nationality or (if
stateless) habitual residence changed for the worse. While the Court is right
to say that the Directive links the special family reunion rights with refugee
status, that link is built in to the Directive anyway because the special family
reunion right can never be triggered in the first place unless a successful asylum
application is made. In any event, the Court’s judgment means that it is wise
for an unaccompanied child who is nearly 18 to apply for asylum as soon as possible
after entering the territory, to avoid any risk that they will not be able to
invoke the special family reunion rights in the event that their application
for refugee status is successful.

What constraints do Member States
still retain on family reunion for refugees just turning 18? They can still try
to limit access to their territory for the would-be young refugees. However, if
those potential refugees make it to the territory, Member States can’t simply ban
minors from applying for refugee status in the first place, since the asylum
procedures Directive requires that they must be able to apply for asylum one
way or another. If refugee status is granted, Member States can use any of the applicable
options to restrict family reunion in general or the special refugee rules in
particular that they have not already invoked. (Note that some of those options
are off the table, since they are subject to a “standstill” rule and so had to
be invoked already if they were going to be validly applied).

The Court even gives Member States
a new limitation: a possible three month deadline “in principle” for the young
refugees to trigger the special rules for their parents to join them. But if the
sponsors are subject anyway to the three month deadline to avoid the conditions
of accommodation, sickness insurance and sufficient resources, they will need
to move quickly in any event. Although refugees have rights to employment in the
qualification Directive, it might be hard for a young refugee to find a good
enough job in the time available (access to employment for asylum seekers is limited, by the EU’s
reception condition directive); and unlike EU free movement law, the family
reunion Directive, as confirmed by the case law (see Khachab) requires the sufficient resources to come from the sponsors,
not from their family members. In light of the principle of effectiveness, the three
month deadline should not apply to those who were wrongly deprived of their
family reunion rights before the Court’s judgment (see the recent King judgment
on working time holiday pay, by analogy),

Are there broader implications of
the judgment for other EU asylum legislation? (There are also special rules on
unaccompanied minors in the EU’s returns Directive,
concerning irregular migrants). This would be relevant to the qualification
Directive, which includes, among other things, an obligation to trace
unaccompanied child refugees’ family members. For its part, the asylum
procedures Directive grants unaccompanied minors, among other things,
exemptions from some procedural limitations; it also sets out rules on the
sometimes controversial issue of assessing the age of children in the event of
a dispute. The reception conditions Directive
also requires some special treatment of unaccompanied minors, including in the
context of detention. Finally, the Dublin rules on
responsibility for asylum seekers contain a special rule for responsibility for
the asylum applications of unaccompanied minors, which the Court of Justice
previously interpreted generously.
 Like the family reunion Directive, all this
legislation has essentially the same definition of “unaccompanied minors” as
the family reunion Directive, without addressing the “passage into adulthood”
point. (Note that conversely, EU criminal law legislation on child suspects’ rights
– discussed here – does
explicitly address this issue, setting out rules on this point similar to the
Court’s family reunion judgment in its Article 2(3)).

The Court’s judgment might cause
political difficulty for Member States, given that the special rules on
unaccompanied minors were highly contested when EU refugee legislation was last
renegotiated, ending in 2013. (A modest proposal on unaccompanied minors and the
Dublin rules, dating from 2014 and discussed here, got nowhere).
The issue may well arise again now that the legislation is being revised a
further time, in particular as regards the Dublin rules, where (as discussed here), the
Commission seeks to overturn the Court’s prior ruling in favour of
unaccompanied minors.

Legalese aside, what is the impact
of the new judgment for the families of young refugees? It means they can come
straight to the Member State where their child lives, without having to go
through the Dublin process first. (Although the Dublin rules allocate
responsibility to the State where a family member is a refugee, there are
sometimes problems applying this in practice; and the Commission proposal to
amend the Dublin rules seeks to undercut those family rules indirectly). When they
arrive, they will have access in principle to rights of access to employment et
al on the same basis as their young refugee family member, as set out in the qualification

But most fundamentally, the
ruling means that family members have safe passage: the obligation to give them
authorisation for legal entry means they can travel to the EU without having to
pay smugglers and risk mistreatment or drowning en route. So it’s no exaggeration
to say that this judgment could literally save the lives of the parents of some
vulnerable young refugees.

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

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