TB v Bevándorlási és Menekültügyi Hivatal.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2019:1070
• Date: 12 December 2019
• Docket Number: C-519/18
• Procedure Type: Reference for a preliminary ruling
• Celex Number: 62018CJ0519
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

12 December 2019 (*)

(Reference for a preliminary ruling — Immigration policy — Right to family reunification — Directive 2003/86/EC — Article 10(2) — Optional provision — Prerequisites for exercising the right to family reunification — Member of a refugee’s family not referred to in Article 4 — Concept of a ‘dependant’)

In Case C‑519/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary), made by decision of 16 July 2018, received at the Court on 7 August 2018, in the proceedings

TB

v

Bevándorlási és Menekültügyi Hivatal,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, I. Jarukaitis, E. Juhász, M. Ilešič and C. Lycourgos (Rapporteur), Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– TB, by G. Győző, ügyvédek,

– the Hungarian Government, by M.Z. Fehér and G. Tornyai, acting as Agents,

– the Netherlands Government, by C. Schillemans and M. Bulterman, acting as Agents,

– the European Commission, by A. Tokár, C. Cattabriga and M. Condou-Durande, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 September 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 4(2) and (3) and Article 10(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

2 The request has been made in proceedings between TB and the Bevándorlási és Menekültügyi Hivatal (Hungarian Immigration and Asylum Office) concerning that office’s refusal to grant a residence permit for purposes of family reunification to the applicant’s sister.

Legal context

EU law

3 Recitals 2, 4 and 8 of Directive 2003/86 state:

‘(2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.

…

(4) Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty.

…

(8) Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification.’

4 Article 1 of that directive provides:

‘The purpose of this Directive is to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States.’

5 Article 3(5) of Directive 2003/86 is worded:

‘This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions.’

6 Article 4(1) to (3) of that directive provides:

‘1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:

(a) the sponsor’s spouse;

(b) the minor children of the sponsor and of his/her spouse, including children adopted …;

(c) the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her …

(d) the minor children including adopted children of the spouse where the spouse has custody and the children are dependent on him or her.

…

2. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the following family members:

(a) first-degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin;

(b) 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.

3. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), and of the unmarried minor children, including adopted children, as well as the adult unmarried children who are objectively unable to provide for their own needs on account of their state of health, of such persons.

Member States may decide that registered partners are to be treated equally as spouses with respect to family reunification.’

7 Article 10 of Directive 2003/86, which appears in Chapter V thereof, entitled ‘Family reunification of refugees’, provides:

‘1. Article 4 shall apply to the definition of family members except that the third subparagraph of paragraph 1 thereof shall not apply to the children of refugees.

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);

(b) may authorise the entry and residence for the purposes of family reunification of his/her legal guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced.’

8 According to Article 17 of that directive:

‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’

Hungarian law

9 Paragraph 19 of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law No II of 2007 on the entry and stay of third country nationals, ‘the 2007 Law’), provides:

‘1. A third country national can obtain a residence permit for the purpose of family reunification where he or she is a family member of a third country national who has a residence permit, immigration permit, permanent residence permit, interim permanent residence permit or a national or EC permanent residence permit, or of a person who holds a residence card or permanent residence card under a specific law (for the purposes of this paragraph “the sponsor”);

…

4. The following can obtain a residence permit for the purpose of family reunification:

(a) the parents dependent on the sponsor or his or her spouse or on the person who has been granted refugee status;

(b) the siblings and relatives in the direct line of the sponsor or his or her spouse or of the person who has been granted refugee status where they are objectively unable to provide for their own needs on account of their state of health.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10 On 7 September 2015, TB was granted refugee status by the competent Hungarian authority. On 12 January 2016, TB’s sister applied to the Hungarian diplomatic mission in Teheran (Iran) for a residence permit for the purposes of family reunification with TB and for a visa so that she could take possession of that residence permit.

11 That application was refused by a decision of the first-tier authority, upheld by the authority hearing the administrative appeal, on the ground, first, that, for the purposes of obtaining the residence permit applied for, TB’s sister had provided incorrect information to the competent authority and, secondly, that, having regard to her qualifications and state of health, she had not demonstrated that she was unable to provide for her own needs on account of her state of health, since, according to the medical documents submitted with her application, she was suffering from depression which required regular medical supervision.

12 TB brought an action against that rejection decision before the referring court. In support of his action, he submits, in particular, that the rule laid down in Paragraph 19(4)(b) of the 2007 Law, pursuant to which the siblings of a person who has been granted refugee status may obtain a residence permit for the purposes of family reunification, provided that they are unable to provide for their own needs on account of their state of health, infringes Article 10(1) and (2) of Directive 2003/86.

13 The referring court, which is uncertain whether that rule is compatible with Article 10(2) of Directive 2003/86, notes that the condition laid down in Paragraph 19(4)(b) is not the same as that laid down in Article 10(2) which enables Member States to authorise the reunification of family members other than those referred to in Article 4 of that directive, such as a...