Case C-550/16 A et S vs. the Netherlands

By April 17, 2017No Category

Keywords: refugee family reunification.

Applicants: A and S.

Defendant: the State of the Netherlands.

Topic: Directive 2003/86 / ECof the Council of the European Union of September 22, 2003 on the right to family reunification.

Deadline for Member States to submit their written observations: February 2, 2017.

Summary of the facts:

Applicants are Eritreans who have sought to be reunited with their daughter who has received a residence permit for asylum in October 2014, with retroactive effect from the date of application.  At the time of her application (26-02-2014) the daughter was a minor (“AMA”).  Applicants residing abroad (the man in Israel man, the woman with three underage boys in Ethiopia). The application for A and S and sons has been submitted on 23-12-2014 by the NGO Refugee Work Netherlands.

In first instance, defendant has rejected the request, both under the Aliens Act 2000 and under the Directive 2003/86, on the ground that the daughter was, at the date of the application for family reunification, no longer a minor.  Both the District court (on 26-02-2015) and the Council of State (on 23-11-2015) have confirmed the decision.  The applicants have submitted that the classification as AMA should take place at the time of arrival in the Member State.  They refer to the long duration of the asylum procedure;  the daughter was not heard on the request until late in the proceedings, and, during the application, had only just become of age.  Although the Council of State ruled that the duration of the application may be relevant,  the applicants claim it misconstrued Article 2 of the Directive. The family left behind in the country of origin is thus dependent on the respondent as to whether or not a timely appeal on the family reunification rule can be done.  They assert that family reunification applications should also have retroactive effect.

The referring Dutch court reads in the pertinent article of Directive 2003/86 only two exceptions to the principle that the reference date is the moment of arrival in the Member State, both as regards the scope of the term “AMA”, both of which are not applicable here.  The Council of State ruled in its judgment of 23-11-2015 that there is no reason why the fact that a foreigner reaches the age of majority after having arrived in the Netherlands should not be taken into account in determining whether he or she falls within the scope of Article 2, introduction sub (f) of the Directive.  The District Court sees no support for that view in the Directive, since the exceptions have been listed exhaustively and appear to offer no room for exceptions from the reference date.  The communication of the European Commission to the Council and Parliament on guidelines for the implementation of Directive 2003/86 / EC on the right to family reunification (the “Guidelines”) states that since the authorization for family reunification is the general rule,  deviations are to be interpreted strictly.  The court also points out that the granting of a residence permit has a retroactive effect.  In the absence of an ‘acte eclairé, established case law of the ECJ on this point and an ‘acte clair’, the court refers the following question to the ECJ:

Questions reffered to the ECJ for a preliminary ruling:

“Should, in the context of refugee family reunification, the term ‘unaccompanied minor’, within the meaning of Article 2, introduction sub (f) of Directive 2003/86 / EC , also include a third country national or a stateless person under 18 years old, who is unaccompanied by a legal custodian at the time of arrival in the territory of a Member State and who:

– applies for asylum;

– turns 18 during the asylum procedure in the territory;

– ais assigned asylum with retroactive effect to the date of application, and

– subsequently applies for family reunification?

Deadline for Member States to submit their written observations: February 2, 2017

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