Opinion of Advocate General Collins delivered on 4 May 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:375
• Date: 04 May 2023
• Celex Number: 62020CC0560
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 4 May 2023(1)

Case C‑560/20

CR,

GF,

TY

respondent authority:

Landeshauptmann von Wien

(Request for a preliminary ruling from the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria))

(Reference for a preliminary ruling – Immigration policy – Right to family reunification – Directive 2003/86/EC – Family reunification of refugees – Unaccompanied minor – Article 10(3)(a) – Parents applying for family reunification with an unaccompanied minor with refugee status together with disabled adult sister of refugee – Member of refugee’s family not referred to in Article 10(2) and Article 10(3) – Article 3(5) – Possibility for the Member States to adopt more favourable provisions – Article 4(2)(b) – Family reunification with adult unmarried children of the sponsor who are unable to provide for their own needs on account of their state of health – Article 17 – Examination of applications for reunification on a case-by-case basis – Balanced and reasonable assessment of all relevant interests – Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union)

I. Introduction

1. The present request for a preliminary ruling from the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria) concerns the eligibility for family reunification of the parents and the disabled adult sister of an unaccompanied minor refugee. (2) For that purpose, the referring court seeks to ascertain the date on which to assess the refugee’s status as a minor. It also inquires whether, as a matter of EU law, a residence permit must be granted to the disabled adult sister of an unaccompanied minor refugee where a refusal to do so would have the effect of preventing the parents from exercising their right to family reunification.

II. Legal framework

A. European Union law

2. Article 2(c) of Directive 2003/86 defines the term ‘sponsor’ as ‘a third country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her’.

3. By Article 2(f) of Directive 2003/86 the term ‘unaccompanied minor’ is defined as ‘third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they entered the territory of the Member States’.

4. By Article 3(5) thereof, Directive 2003/86 will not affect the possibility for Member States to adopt, or to maintain, more favourable provisions.

5. Under Article 4(2)(b) of Directive 2003/86, Member States may authorise, pursuant to that directive and subject to compliance with the conditions laid down in Chapter IV thereof, the entry and residence of the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health.

6. Article 10 of Directive 2003/86 provides that:

‘…

2. The Member States may authorise family reunification of other family members not referred to in Article 4, if they are dependent on the refugee.

3. If the refugee is an unaccompanied minor, the Member States:

(a) shall authorise the entry and residence for the purposes of family reunification of his/her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a);

…’

7. Under Article 12 of Directive 2003/86:

‘1. By way of derogation from Article 7, the Member States shall not require the refugee and/or family member(s) to provide, in respect of applications concerning those family members referred to in Article 4(1), the evidence that the refugee fulfils the requirements set out in Article 7.

…

Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after the granting of the refugee status.

…’

B. Austrian law

8. The relevant provisions of national law are Paragraphs 11 and 46 of the Bundesgesetz über die Niederlassung und den Aufenthalt in Österreich (Niederlassungs- und Aufenthaltsgesetz – NAG) (Federal Law on establishment and residence in Austria; ‘the NAG’) of 16 August 2005 (3) and Paragraphs 34 and 35 of the Bundesgesetz über die Gewährung von Asyl (Asylgesetz 2005) (Federal Law concerning the granting of asylum (Law on asylum 2005); ‘AsylG 2005’) of 16 August 2005. (4)

III. The facts of the main proceedings and the questions referred for a preliminary ruling

9. RI is a Syrian national, born on 1 September 1999. He arrived as an unaccompanied minor in Austria on 31 December 2015 and applied for international protection on 8 January 2016. The Bundesamt für Fremdenwesen und Asyl (Federal Office for Immigration and Asylum, Austria) granted RI refugee status while he was a minor and notified him of that decision on 5 January 2017. On 6 April 2017, three months and one day thereafter, RI’s parents, CR and GF, and his adult sister, TY, (5) applied (6) to the Embassy of Austria in Syria for permission to enter and to reside in Austria with RI for the purposes of family reunification. RI was a minor at the time those applications were filed. The Embassy of Austria rejected them (7) on the ground that RI had become an adult during the course of the family reunification procedure. There was no appeal against that decision and it became final on 26 June 2018.

10. On 11 July 2018, CR, GF and TY applied to the Landeshauptmann von Wien (Head of Government of the Province of Vienna) for residence permits for the purposes of family reunification under Paragraph 46(1)(2) of the NAG. CR and GF relied on their rights under Directive 2003/86. TY based her application on Article 8 of the European Convention on Human Rights (‘ECHR’). On 20 April 2020, the Landeshauptmann von Wien (Head of Government of the Province of Vienna) rejected those applications since they had not been lodged within three months of the date of when RI’s refugee status was recognised.

11. CR, GF and TY (‘the applicants’) challenged those decisions before the Verwaltungsgericht Wien (Administrative Court, Vienna). That court inquires, inter alia, as to whether the applicants have a right to family reunification pursuant to Article 10(3)(a) of Directive 2003/86 given that RI became an adult in the course of the family reunification procedure. If not, it wishes to know the date when that application for family reunification ought to have been submitted in order for that right to exist.

12. Following a hearing, the Verwaltungsgericht Wien (Administrative Court, Vienna) found that the applicants are not entitled to accommodation considered as ‘normal’, (8) do not have ‘sickness insurance’ (9) and have no stable and regular income. (10) They accordingly do not meet the requirements of Article 7 of Directive 2003/86. The referring court also found that TY, who lives with her parents in Syria, suffers from cerebral palsy, as a result of which she is confined to a wheelchair and requires daily personal care, including assistance with eating. Her mother, CR, provides that care. TY’s parents cannot leave her alone as the care her mother provides is otherwise unavailable in Syria and no other family members reside there.

13. The Verwaltungsgericht Wien (Administrative Court, Vienna) held that since the Republic of Austria does not apply the option in Article 10(2) of Directive 2003/86, TY is not a family member for the purposes of family reunification as a matter of Austrian law. The referring court thus considers that RI’s parents would be forced to waive their right to family reunification under Article 10(3)(a) of Directive 2003/86 if RI’s sister, TY, were not granted a residence permit at the same time as them. It asks if the interpretation of Article 20 TFEU in the judgments in Ruiz Zambrano (11) and in Dereci and Others (12) may apply by analogy to the exercise of the right to family reunification pursuant to Article 10(3)(a) of Directive 2003/86, so as to extend that directive’s scope to categories of persons other than those it expressly provided for. The referring court points to the fact that, under Austrian law, TY may be eligible for a residence permit for compelling reasons relating to her private and family life pursuant to Article 8 ECHR. It nevertheless considers that a right to a residence permit under EU law may confer greater protection than that which might be available through the application of Article 8 ECHR by the Austrian authorities.

14. In those circumstances, the Verwaltungsgericht Wien (Administrative Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Can the third-country national parents of a refugee who has applied for asylum as an unaccompanied minor and has been granted asylum as a minor continue to rely on Article 2(f) in conjunction with Article 10(3)(a) of [Directive 2003/86] if the refugee reached the age of majority after being granted asylum but during the procedure for granting a residence permit to his [or her] parents?

(2) If Question 1 is to be answered in the affirmative: In such a case, is it necessary that the parents of the third-country national comply with the period for submitting an application for family reunification referred to in the judgment of … 12 April 2018, … A and S [(C‑550/16, EU:C:2018:248, paragraph 61)], namely “in principle, … within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status”?

(3) If Question 1 is to be answered in the affirmative: Must the adult third-country national sister of a recognised refugee be granted a residence permit directly on the basis of EU law if, in the...