Opinion of the Advocate General — ECLI:EU:C:2022:477
Date: 2022-06-16
Language of the case: Dutch
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-230/21 – 1 
Case C-230/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
9 April 2021 
Referring court:  
Raad voor Vreemdelingenbetwistingen (Belgium) 
Date of the decision to refer:  
6 April 2021 
Applicant:  
X, acting in her own name and as legal representative of her minor 
children, Y and Z 
Defendant:  
Belgische Staat 
  
Subject of the action in the main proceedings 
The applicant brought two actions before the Raad voor 
Vreemdelingenbetwistingen (Council for asylum and immigration proceedings), 
seeking annulment of the decisions of 17 March 2020 of the authorised 
representative of the minister van Sociale Zaken en Volksgezondheid, en van 
Asiel en Migratie (Minister for Social Affairs and Public Health, and of Asylum 
Policy and Migration) refusing to grant her a visa for family reunification with her 
daughter, who was recognised as a refugee in Belgium, and refusing to issue 
humanitarian visas for the applicant’s two underage sons.  
Subject and legal basis of the request for a preliminary ruling 
Interpretation of the term ‘unaccompanied minor’ within the meaning of 
Article 2(f) read in conjunction with Article 10(3)(a) of Directive 2003/86.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/21 
 
2  
Questions referred for a preliminary ruling 
Should European Union law, in particular Article 2(f) read in conjunction with 
Article 10(3)(a) of Council Directive 2003/86/EC of 22 September 2003 on the 
right to family reunification be interpreted as meaning that a refugee who is an 
‘unaccompanied minor’, and who resides in a Member State, must be ‘unmarried’ 
under national law in order to enjoy the right to family reunification with relatives 
in the direct ascending line?  
If so, can a refugee minor whose marriage contracted abroad is not recognised for 
public policy reasons be regarded as an ‘unaccompanied minor’ within the 
meaning of Articles 2(f) and 10(3) of Directive 2003/86/EC?  
Provisions of European Union law cited 
Article 2(f), and Article 10(3) of Council Directive 2003/86/EC of 22 September 
2003 on the right to family reunification  
Articles 7 and 24 of the Charter of Fundamental Rights of the European Union 
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 
26 June 2013 establishing the criteria and mechanisms for determining the 
Member State responsible for examining an application for international 
protection lodged in one of the Member States by a third-country national or a 
stateless person 
Communication of 3 April 2014 from the Commission to the European Parliament 
and the Council on guidance for application of Directive 2003/86/EC on the right 
to family reunification. 
Provisions of national law cited 
Article 9, Article 10(1)(1)(7), Article 13 and Article 61/14 of the wet van 15 
december 1980 betreffende de toegang tot het grondgebied, het verblijf, de 
vestiging en de verwijdering van vreemdelingen (Law of 15 December 1980 on 
entry, stay, settlement and removal of foreign nationals (‘Law on foreign 
nationals’)) 
Articles 21, 27 and 35 of the Wetboek van internationaal privaatrecht (Code of 
private international law (‘WIPR’)) 
Brief summary of the facts and the procedure in the main proceedings  
1 The applicant’s daughter (°02/02/2001) entered into a marriage as a minor in 
Lebanon in December 2016 with Y.B., who held a valid residence permit in 
Belgium. 
BELGISCHE STAAT 
 
3 
2 She came to Belgium in August 2017. The Dienst Vreemdelingenzaken (Federal 
Public Service Foreign Affairs) did not recognise her marriage because it was a 
child marriage, which was considered incompatible with public policy. In 
September 2018, she was recognised as a refugee.  
3 In December 2018, the applicant applied to the Belgian representation in Beirut 
(Lebanon) for a family reunification visa to join her daughter in Belgium, as well 
as two humanitarian visas for her minor sons.  
4 In June 2019, the authorised representative of the minister van Sociale Zaken en 
Volksgezondheid, en van Asiel en Migratie (‘the Minister’) refused to issue a visa 
for family reunification and humanitarian visas for the applicant’s sons. Those 
decisions were annulled in November 2019 by the Raad voor 
Vreemdelingenbetwistingen (Council for asylum and immigration proceedings). 
5 In March 2020, the Minister’s authorised representative took new decisions by 
which the aforementioned applications were again refused. In essence, it took the 
view that, in the light of Article 27 WIPR, the daughter’s marriage was in fact a 
legally valid marriage in the country of origin and that, consequently, it was 
undeniable that she had already built up her own family unit in her country of 
origin and that therefore, even before her arrival in Belgium, she no longer 
belonged to her parents’ family nucleus. It would be discriminatory and 
contradictory to claim that she still belonged to the family nucleus and could 
therefore bring her parents to Belgium.  
Main submissions of the parties to the main proceedings 
6 According to the Minister’s authorised representative, the applicant does not fulfil 
the requirements of Article 10(1)(7) of the vreemdelingenwet (or Article 10(3)(a) 
of Directive 2003/86) because, even before her arrival in Belgium, her daughter 
no longer belonged to her parents’ family nucleus by virtue of her marriage, which 
had been legally entered into in the country of origin. Pursuant to Article 10(1)(4) 
of the vreemdelingenwet and Article 4(1) of Directive 2003/86, the nuclear family 
consists of spouses and minor unmarried children.  
7 The applicant submits, in essence, that neither the vreemdelingenwet nor Directive 
2003/86 requires her daughter to be unmarried. Moreover, her daughter’s marriage 
was not recognised in Belgium. According to the applicant, in order to have the 
right to family reunification with her parents, her daughter must merely be a minor 
and single within the meaning of Article 2(f) of Directive 2003/86, which is the 
case in this instance.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/21 
 
4  
Brief summary of the reasons for the referral 
8 The referring court takes the view, in essence, that, as far as it is aware, the Court 
of Justice has not yet had to rule on the question whether the refugee (minor) must 
be ‘unmarried’.  
9 According to the referring court, it is clear from the case-law of the Court of 
Justice (judgment of 13 November 1990, Marleasing, C-106/89, paragraph 8) that 
the terms relating to family reunification in the Belgian vreemdelingenwet must, 
as far as possible, be interpreted in the light of Directive 2003/86.  
10 It takes the view that the situation of the applicant’s daughter appears to 
correspond to that of an ‘unaccompanied minor’ within the meaning of 
Article 10(3)(a) read in conjunction with Article 2(f) of Directive 2003/86, since 
that directive does not mention anything about the marital status of the person 
concerned if the refugee reference person is an ‘unaccompanied minor’. Although 
the daughter did indeed marry her current ‘partner’ in Lebanon in 2016, that 
(child) marriage was not recognised by the Belgian authorities.  
11 The referring court observes that, according to the defendant, the ‘minor children’ 
referred to in Article 4 of Directive 2003/86 must be unmarried in order to be 
eligible for family reunification with a reference person residing in a Member 
State and that it is therefore discriminatory and contradictory for recognised 
refugees who are married minors to be allowed to bring their parents to join them. 
12 The referring court therefore wishes to ascertain from the Court of Justice whether 
the term ‘unaccompanied minor’ refugee implies that that person must be 
‘unmarried’ in order for his relatives in the direct ascending line to have the right 
to family reunification, although this is not stated as such in the definition in 
Directive 2003/86, and what the implication of an unrecognised foreign marriage 
is for the definition of ‘unaccompanied minor’.