Opinion of the Advocate General — ECLI:EU:C:2021:247
Date: 2021-03-25
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation  C-768/19 — 1 
Case C-768/19 
Request for a preliminary ruling 
Date lodged: 
18 October 2019 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
15 August 2019 
Defendant and appellant on a point of law: 
Bundesrepublik Deutschland 
Applicant and respondent in the appeal on a point of law: 
SE 
  
[…] 
Bundesverwaltungsgericht (Federal Administrative Court) 
ORDER 
[…] 
In the administrative dispute between 
1. SE, 
[…]  
[…] 
applicant and respondent in the appeal on a point of law, 
EN 
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[…] [Or. 2] […] 
and 
Bundesrepublik Deutschland 
(Federal Republic of Germany), 
[…] 
defendant and appellant on a point of law, 
other party: 
The Representative of the Federal Interest  
at the Bundesverwaltungsgericht,  
[…] 10557 Berlin, 
the First Chamber of the Bundesverwaltungsgericht,  
on the basis of the hearing held on 15 August 2019  
[…] 
has made the following order: 
The proceedings are stayed. 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. In the case of an applicant for asylum who, before the point at which 
the age of majority is reached by his child, by way of whom a family existed 
in the country of origin and to whom subsidiary protection status was 
granted, following the attainment of majority, on the basis of an application 
for protection filed before the age of majority was reached (‘the beneficiary 
of protection’), entered the host Member State of the beneficiary of 
protection and also made an application for international protection there 
(‘the applicant for asylum’), and in the case of a national provision which, in 
relation to the granting of a right to be granted subsidiary protection, that 
right being derived from the beneficiary of subsidiary protection, makes 
reference to Article 2(j) of Directive 2011/95/EU, is the point in time at 
which the [Or. 3] decision on the asylum application of the applicant for 
asylum is taken or an earlier point in time to be taken into account for the 
question as to whether the beneficiary of protection is a ‘minor’ within the 
meaning of the third indent of Article 2(j) of Directive 2011/95/EU, such as 
the point in time at which 
(a) the beneficiary of protection was granted subsidiary protection status, 
(b) the applicant for asylum made his asylum application, 
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(c) the applicant for asylum entered the host Member State, or 
(d) the beneficiary of protection made his asylum application? 
2. In the event 
(a) that the point in time at which the application is made is decisive: 
Is the request for protection expressed in writing, verbally or in any other 
way and made known to the national authority responsible for the asylum 
application (request for asylum) or the formal application for international 
protection to be taken as the basis in this respect? 
(b) that the point in time at which the applicant for asylum enters the 
territory or the point in time at which he makes the asylum application is 
decisive: Is it also significant whether, at that point in time, the decision on 
the application for protection of the beneficiary of protection who was 
subsequently recognised as being a beneficiary of subsidiary protection had 
not yet been taken? 
3. (a)  What requirements are to be imposed in the situation 
described in Question 1 in order for the applicant for asylum to be a ‘family 
member’ (Article 2(j) of Directive 2011/95/EU) who is present ‘in the same 
Member State in relation to the application for international protection’ in 
which the person who was granted international protection is present and by 
way of whom the family ‘already’ existed ‘in the country of origin’? Does 
this require, in particular, that family life between the beneficiary of 
protection and the applicant for asylum within the meaning of Article 7 of 
the Charter has been resumed in the host Member State, or is the mere 
simultaneous presence of the beneficiary of protection and the applicant for 
asylum in the host Member State sufficient in this respect? Is a parent a 
family member even if, depending on the circumstances of the individual 
case, entry into the territory was not intended for the purpose of actually 
assuming responsibility within the meaning of the third indent of Article 2(j) 
of Directive 2011/95/EU for a beneficiary of international protection who is 
still a minor and unmarried? [Or. 4] 
(b) If Question 3(a) is to be answered to the effect that family life between 
the beneficiary of protection and the applicant for asylum within the 
meaning of Article 7 of the Charter must have been resumed in the host 
Member State, is the point in time at which it resumed significant? In that 
regard, must account be taken, in particular, of whether family life was re-
established within a certain period of time after the applicant for asylum 
entered the territory, or at the point in time at which the applicant for asylum 
makes the asylum application or at a point in time at which the beneficiary 
of protection was still a minor? 
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4. Does the status of an applicant for asylum as a family member within 
the meaning of the third indent of Article 2(j) of Directive 2011/95/EU end 
when the beneficiary of protection reaches the age of majority and the 
associated responsibility for a person who is a minor and unmarried ceases 
to exist? In the event that this is answered in the negative: Does this status as 
a family member (and the associated rights) continue to exist indefinitely 
beyond that point in time or does it cease to exist after a certain period of 
time (if so: what period of time?) or upon the occurrence of certain events (if 
so: which events?)? 
Grounds: 
I 
1 The first applicant requests that he be granted subsidiary protection status. 
2 The applicant is, by his own account, an Afghan national. He is the father of a son 
born on 20 April 1998, who entered the territory of the Federal Republic of 
Germany in 2012. By a final decision of the Bundesamt für Migration und 
Flüchtlinge (Federal Office for Migration and Refugees) of 13 May 2016, 
moreover, his asylum application was rejected and he was granted subsidiary 
protection status. 
3 By his own account, the applicant entered the Federal Republic of Germany by 
land in January 2016. He applied for asylum in February 2016 and filed a formal 
application for international protection on 21 April 2016. The Federal Office for 
Migration and Refugees rejected his requests to be granted the right of asylum and 
refugee status [Or. 5] or subsidiary protection status and his request for a 
declaration that there are grounds prohibiting his deportation pursuant to the first 
sentence of Paragraph 60(5) and (7) of the Aufenthaltsgesetz (German Law on 
residence; ‘the AufenthG’). 
4 By the contested judgment, the Verwaltungsgericht (Administrative Court) 
imposed an obligation on the defendant to grant subsidiary protection status to the 
applicant on the basis of Paragraph 26(5), in conjunction with the first sentence of 
Paragraph 26(3), of the Asylgesetz (Law on asylum; ‘the AsylG’), as the parent of 
an unmarried minor who is a beneficiary of protection. According to the 
Verwaltungsgericht, the son of the applicant had still been a minor at the time 
when the asylum application was made, which is the relevant time in this regard. 
In this connection, an asylum application was to be regarded as having been made 
as soon as the competent authority became aware of the request for asylum of the 
person seeking protection. 
5 By its ‘leap-frog’ appeal on a point of law, the defendant claims that the first 
sentence of Paragraph 26(3) of the AsylG has been infringed. Pursuant to the first 
sentence of Paragraph 77(1) of the AsylG, it argues, the decisive factor for the 
assessment of the factual and legal situation is, in principle, and thus in this case 
too, the time of the last hearing before the court ruling on the merits or — in the 
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absence of such a hearing — the time of the final decision of the court ruling on 
the merits. Paragraph 26(3) of the AsylG does not contain any express statutory 
exemptions in this regard. Its factual requirements and its structure suggest that, in 
any event, only a minor who was still a minor when his own status was granted 
can derive a right. The provision serves the special protection interests of the 
minor entitled to protection, which, in principle, exist only as long as he is a 
minor. Even if minority were to be based on the time of the parent’s asylum 
application, however, it is not the time of the material request for asylum 
(Paragraph 13 of the AsylG) that is decisive in that regard, but rather the time of 
the formal asylum application (Paragraph 14 of the AsylG). For the purpose of 
satisfying the application requirement laid down in the first sentence of 
Paragraph 26(3) of the AsylG, it is not sufficient that the competent authority — 
in this case the Federal Office for Migration and Refugees — is merely aware of 
the request for asylum. A prerequisite for recognition is a (formal) application, 
which, in order to be effective, can be made only with the competent authority. 
II 
6 The proceedings are to be stayed. A preliminary ruling on [Or. 6] the questions 
set out in the operative part of the decision is to be obtained from the Court of 
Justice of the European Union (‘Court of Justice’) pursuant to Article 267 TFEU. 
These questions concern the interpretation of Article 2(j) of Directive 2011/95/EU 
of the European Parliament and of the Council of 13 December 2011 on standards 
for the qualification of third-country nationals or stateless persons as beneficiaries 
of international protection, for a uniform status for refugees or for persons eligible 
for subsidiary protection, and for the content of the protection granted (OJ 2011 
L 337, p. 9; ‘Directive 2011/95/EU’). 
7 1. The legal assessment under national law is governed by the Law on asylum 
(AsylG) […]. 
8 The relevant legal framework of the case is formed by the following provisions of 
national law: 
Paragraph 13 of the AsylG 
(1) An asylum application exists if it can be inferred from the foreign 
national’s intention, expressed in writing, verbally or in any other way, that 
he seeks protection in the territory of the Federal Republic from political 
persecution or that he requests protection against removal or any other form 
of forced return to a State in which he is at risk of persecution within the 
meaning of Paragraph 3(1) or of serious harm within the meaning of 
Paragraph 4(1). 
(…) 
Paragraph 14 of the AsylG 
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(1) The asylum application shall be lodged at the local branch of the 
Federal Office which is assigned to the reception centre responsible for 
admitting the foreign national. (…) 
(…) 
Paragraph 26 of the AsylG 
(…) 
(2) An unmarried minor who is the child of a beneficiary of asylum and 
who was a minor at the time of his asylum application shall be recognised as 
being eligible for asylum on application if the recognition of the foreign 
national as a beneficiary of asylum cannot be challenged and that 
recognition cannot be revoked or withdrawn. 
(3) The parents of an unmarried minor who is a beneficiary of asylum or 
another adult within the meaning of Article 2(j) [Or. 7] of Directive 
2011/95/EU shall be recognised as being eligible for asylum on application, 
if 
1. the recognition of the person’s eligibility for asylum cannot be 
challenged, 
2. the family within the meaning of Article 2(j) of Directive 2011/95/EU 
already existed in the State in which the person eligible for asylum is 
politically persecuted, 
3. they entered the territory prior to the recognition of the person’s 
eligibility for asylum or they lodged the asylum application immediately 
after entering the territory, 
4. the recognition of the person’s eligibility for asylum cannot be revoked 
or withdrawn, and 
5. they are responsible for taking care of the person eligible for asylum. 
Points 1 to 4 of the first sentence shall apply mutatis mutandis to unmarried 
siblings of the minor person eligible for asylum who are minors at the time 
of their application. 
(…) 
(5) The provisions of subparagraphs 1 to 4 shall apply mutatis mutandis to 
family members within the meaning of subparagraphs 1 to 3 of beneficiaries 
of international protection. Eligibility for asylum shall be replaced by 
refugee status or subsidiary protection. (…) 
(…) 
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Paragraph 77 of the AsylG 
(1) In disputes coming within the scope of this Law, the court shall take 
into account the situation of fact and of law obtaining at the time of the last 
hearing; if judgment is given without a hearing, the relevant point in time 
shall be that at which judgment is given. (…) 
(…) 
9 2. The questions referred are germane to the final decision and require 
clarification by the Court of Justice. 
10 2.1 The questions referred are relevant to the decision on the applicant’s 
request to be granted subsidiary protection status on the basis of Paragraph 26(5), 
in conjunction with the first sentence of Paragraph 26(3), of the AsylG, as the 
parent of an unmarried minor eligible for protection. 
11 The applicant is a family member within the meaning of the first sentence of 
Paragraph 26(5) of the AsylG and pursuant to the first sentence of 
Paragraph 26(3) of the AsylG and a father within the meaning of the first sentence 
of Paragraph 26(3) of the AsylG and therefore a parent of his unmarried son. The 
son is eligible for subsidiary protection within the meaning of the first sentence of 
Paragraph 26(3) of the AsylG and Article 18 of Directive 2011/95/EU. The 
granting of subsidiary protection status cannot be challenged (point 1 of the first 
sentence of Paragraph 26(3) of the AsylG). In accordance with point 2 of the first 
sentence of Paragraph 26(3) of the AsylG, the family within the meaning [Or. 8] 
of Article 2(j) Directive 2011/95/EU existed in Afghanistan, as the State in which 
the son faces a risk of suffering serious harm within the meaning of Article 15 of 
Directive 2011/95/EU. The applicant also entered the territory before his son was 
recognised as a person eligible for subsidiary protection (point 3 of the first 
sentence of Paragraph 26(3) of the AsylG). There are no grounds for assuming 
that the recognition of the son as a person eligible for subsidiary protection could 
be revoked or withdrawn (see point 4 of the first sentence of Paragraph 26(3) of 
the AsylG), nor is there anything to indicate that the applicant is caught by the 
grounds for exclusion pursuant to the first sentence of Paragraph 26(4) and 
Paragraph 4(2) of the AsylG. 
12 The applicant’s application to be granted subsidiary protection as a parent would 
therefore be successful if, at the time which is decisive for the assessment, the son 
was a minor within the meaning of the first sentence of Paragraph 26(3) of the 
AsylG and the applicant was responsible for taking care of him within the 
meaning of point 5 of the first sentence of Paragraph 26(3) of the AsylG. 
13 Paragraph 26(3) of the AsylG is intended as a means of implementing 
Article 23(2) of Directive 2011/95/EU […]. Pursuant to the latter provision, 
Member States are to ensure that members of the family of the beneficiary of 
international protection who do not individually qualify for such protection are 
entitled to claim the benefits referred to in Articles 24 to 35 of that directive, in 
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accordance with national procedures and as far as is compatible with the personal 
legal status of the family member. The notion of family and therefore also the 
notion of family member for the purpose of the national basis for entitlement are 
governed by the express reference to Article 2(j) of Directive 2011/95/EU in 
point 2 of the first sentence of Paragraph 26(3) of the AsylG. Pursuant to the third 
indent of Article 2(j) of Directive 2011/95/EU, the term ‘family member’ of the 
beneficiary of international protection, when that beneficiary is a minor and 
unmarried, includes the father of that person, in so far as he is present in the same 
Member State in relation to the application for international protection and the 
family already existed in the country of origin. It is not clear from the wording of 
the provision which point in time is relevant for the purpose of assessing whether 
the beneficiary of international protection is a minor and whether, and possibly 
within what limits, the father’s status [Or. 9] as a family member continues to 
exist even after the beneficiary of international protection attains the age of 
majority. 
14 2.2 The questions referred require clarification by the Court of Justice. 
15 (a) By Question 1, the referring court seeks, in a situation such as that in the 
present case, to determine what point in time is to be taken into account for the 
purpose of assessing whether the person eligible for protection is a ‘minor’ within 
the meaning of the third indent of Article 2(j) of Directive 2011/95/EU. 
16 So far, in relation to the minority of the beneficiary of protection, the national 
case-law has in some cases also taken account — in line with the principle under 
Paragraph 77 of the AsylG, a principle that is generally applicable under the 
national law pertaining to the asylum process — of the time at which the decision 
on the parent’s asylum application was taken (which, in accordance with the 
German transposition concept, is also always based on the derived family 
protection, which is identical in terms of its legal effect). In other cases, however, 
it has been deemed sufficient that the beneficiary of protection was still a minor at 
the time when the parent made the asylum application. In this respect, the reasons 
provided are generally based on provisions of EU law, and the explicit fixing of 
the time in the case of derived international protection for children (see 
Paragraph 26(2) of the AsylG) is transferred to international protection for 
parents, despite the lack of legislation in this regard. 
17 In this respect, the wording of Article 2(j) of Directive 2011/95/EU does not 
provide any clear insight in the context of the granting of subsidiary protection to 
a parent. The fact that the third indent of Article 2(j) of [the German version of] 
Directive 2011/95/EU expressly differentiates between the perfect tense (with 
regard to the beneficiary of international protection and the existence of the family 
in the country of origin) and the present tense (with regard to residence, 
responsibility for the beneficiary of protection, and minority) might indicate that 
the minority of the beneficiary of protection must be assessed on the basis of a 
current point in time, such as, for instance, the point in time at which the decision 
on the (asylum) application of the parent is taken. The requirement for a 
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connection between the asylum application of the beneficiary of protection and 
the residence of the family member in the host Member State may also militate in 
favour of the argument [Or. 10] that, at the earliest, a point in time following the 
point at which the family member established his residence is decisive for the 
assessment of the minority of the beneficiary of protection. Considering the 
directive from a systematic perspective, the reference to the ‘accompanying’ 
members of the family of applicants for asylum in the second sentence of 
recital 16 of Directive 2011/95/EU as well as the principle of (maintaining) family 
unity enshrined in Article 23 and in the second sentence of recital 18 of Directive 
2011/95/EU may also point towards this. From a teleological perspective, the 
principles of safeguarding the best interests of the child, equal treatment, legal 
certainty and the practical effectiveness of EU law may militate against an 
assessment of minority at a point in time at which the proceedings are already well 
advanced. However, in the case of foreign nationals who have already reached the 
age of majority at the time when the decision is taken, the granting of subsidiary 
protection to a parent who has travelled to the country to join a child is objectively 
no longer suitable for safeguarding the interests of a child. 
18 Both Question 1 and the other questions relate to a situation in which the family 
member who is a beneficiary of protection and from whom a protection status is to 
be derived has not been recognised as a refugee, but rather has merely been 
granted subsidiary protection status. For the purpose of determining the relevant 
point in time, a distinction may be made in this respect between a person eligible 
for international protection for whom refugee status has been recognised 
(Article 13 et seq. of Directive 2011/95/EU) and a third-country national or 
stateless person who has been granted subsidiary protection status (Articles 18 and 
19 of Directive 2011/95/EU). Regarding the recognition of refugee status, 
recital 21 of Directive 2011/95/EU makes it clear that the recognition of refugee 
status is a declaratory act. In paragraphs 53 and 54 of its judgment of 12 April 
2018 — C-550/16 [ECLI:EU:C:2018:248] — concerning Article 2(f) of Directive 
2003/86/EC, the Court of Justice of the European Union deduced from that recital 
that, after the application for international protection is submitted in accordance 
with Chapter II of Directive 2011/95/EU, a person who fulfils the material 
conditions has a subjective right to be recognised as having refugee status, and 
that is so even before the formal decision is adopted in that regard, meaning that 
the right to family reunification pursuant to Article 10(3)(a) of Directive 
2003/86/EC could not depend upon the moment at which the competent national 
authority formally adopted the decision recognising [Or. 11] the refugee status of 
the person concerned. Irrespective of the question of whether the case-law on the 
definition in Article 2(f) of Directive 2003/86/EC is transferable to the almost 
identically worded definition in Article 2(l) of Directive 2011/95/EU and/or the 
family unity to be maintained pursuant to Article 23 of Directive 2011/95/EU, 
there is no comparable recital — regarding the granting of subsidiary 
protection — which expresses the required granting as a (purely or primarily) 
declaratory act. Another factor that may militate in favour of a distinction between 
the link to refugee protection, for which an extension to the targeted persecution 
due to the (continued) existence of family proximity to family members cannot be 
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ruled out, and the link to the granting of subsidiary protection status is the fact 
that, in those cases, a parent seeks to derive subsidiary family protection from his 
child without himself having asserted valid reasons for the assumption that, if he 
were to return to his country of origin, he would run a real risk of suffering serious 
harm within the meaning of Article 15 of Directive 2011/95/EU; the presumption 
of an extension of persecution that is linked to family ties is generally not justified 
in this case. 
19 (b) In the event that Question 1 is answered to the effect that the relevant time 
for the assessment of minority is the time at which the application for the granting 
of international protection is made, by either the beneficiary of protection or the 
family member, Question 2.(a) serves to clarify the follow-up question of whether 
the point in time at which the material request for asylum is made or the point in 
time at which the asylum application is formally lodged is to be regarded as the 
point in time at which the application is made. 
20 The first sentence of Article 6(2) of Directive 2013/32/EU of the European 
Parliament and of the Council of 26 June 2013 on common procedures for 
granting and withdrawing international protection (OJ 20103 L 180, p. 60; 
‘Directive 2013/32/EU’) draws a distinction between making an application for 
international protection and lodging it. The provision obliges Member States to 
ensure that a person who has made an application for international protection has 
an effective opportunity to lodge it as soon as possible. Article 6(3) of Directive 
2013/32/EU permits Member States to prescribe that applications for international 
protection be lodged in person [Or. 12] and/or at a designated place. Article 6(4) 
of Directive 2013/32/EU justifies an exception to the rule laid down in 
Article 6(3) of Directive 2013/32/EU (CJEU, judgment of 26 July 2017 — 
C-670/16 [ECLI:EU:C:2017:587], Mengesteab — paragraph 101). Pursuant to the 
former provision, notwithstanding Article 6(3) of Directive 2013/32/EU, an 
application for international protection is deemed to have been lodged once a form 
submitted by the applicant or, where provided for in national law, an official 
report, has reached the competent authorities of the Member State concerned. In 
line with Article 6(2) of Directive 2013/32/EU, the material request for asylum 
pursuant to Paragraph 13(1) of the AsylG does not require a specific form, 
whereas the asylum application pursuant to the first sentence of Paragraph 14(1) 
of the AsylG must in principle be formally lodged at the competent local branch 
of the Federal Office. This is not put on record and does not become the subject of 
an administrative procedure under asylum law until the request for asylum has 
been formally received by the competent authority. 
21 The fact that Article 6 of Directive 2013/32/EU authorises the Member States to 
provide for the formal lodging of an application and only requires them to make it 
possible to do this as soon as possible, without specifying any specific time limits 
in that regard, could militate in favour of an assessment of minority at the time 
when the application is formally lodged. Although no minimum, indicative or 
maximum time limits are prescribed here […], it must be possible for the 
application to be formally lodged immediately, that is to say, without undue delay. 
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However, it has not been established beyond doubt whether taking the formal 
lodging of an application into account is in line with the principles of equal 
treatment, legal certainty and effet utile. 
22 (c) In so far as the assessment of the minority of the beneficiary of protection 
is to be based on the time at which the family member within the meaning of the 
third indent of Article 2(j) of Directive 2011/95/EU enters the territory or on the 
time at which the asylum application is made by that family member, Question 
2.(b) seeks clarification as to whether this also applies to the case where, at that 
point in time, the decision on the application for protection of the beneficiary of 
protection who was subsequently recognised as being a beneficiary of subsidiary 
protection had not yet been taken. [Or. 13] 
23 (d) Question 3.(a) seeks further clarification as to the overarching 
requirements of Article 2(j) of Directive 2011/95/EU, pursuant to which the 
family member must be present in the same Member State in relation to the 
application for international protection and the family must have already existed 
in the country of origin. 
24 In this regard, clarification is required as to what material requirements 
Article 2(j) of Directive 2011/95/EU imposes on the elements ‘in relation to the 
application for international protection’, ‘present in the same Member State’ and 
‘the family already existed in the country of origin’, in a situation such as that in 
the present case. In this respect, clarification is required, in particular, as to 
whether family life within the meaning of Article 7 of the Charter between the 
beneficiary of protection and the family member — the parent in this case — must 
have resumed in the host Member State or whether the mere simultaneous 
presence of the beneficiary of protection and the family member in the host 
Member State is sufficient for establishing the status of family member. 
25 It is clear from the wording of Article 2(j) of Directive 2011/95/EU that the 
elements ‘present (…) in relation to the application for international protection’ 
and ‘the family already existed in the country of origin’ are to be interpreted as 
meaning that the mere simultaneous presence of the beneficiary of protection and 
the family member in the host Member State is not sufficient. The requirement 
that the family has already existed in the country of origin is based on the 
assumption that the proximity of the members of the core family to the protection-
relevant events in the country of origin normally means that the family member 
himself is also vulnerable (see recital 36 of Directive 2011/95/EU). The system on 
which the directive is based could also point towards an understanding along these 
lines, in which regard Article 23 and recitals 16, 18 and 19 of Directive 
2011/95/EU are to be considered. Article 23(1) of Directive 2011/95/EU serves to 
maintain family unity. Article 23(1) of Directive 2011/95/EU extends the scope of 
the article to include, in addition to the family members specified in Article 2(j) of 
Directive 2011/95/EU, other close relatives who lived together as part of the 
family at the time of leaving the country of origin, and who were wholly or mainly 
dependent on the beneficiary of international protection at that time. It can be 
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inferred from both provisions [Or. 14] that Article 23 of Directive 2011/95/EU is 
intended, in particular, to protect the dependent members of the family unit, in 
particular minors. In order to achieve that protection objective, the provision also 
benefits the other family members covered by it. Recitals 18 and 19 of Directive 
2011/95/EU could also support such an interpretation of the provision. Recital 18 
of Directive 2011/95/EU encourages Member States to treat the best interests of 
the child as a primary consideration and refers in particular to the principle of 
family unity in this respect. Pursuant to recital 19 of Directive 2011/95/EU, it is 
necessary to broaden the notion of family members, taking into account the 
different particular circumstances of dependency and the special attention to be 
paid to the best interests of the child. Recital 16 of Directive 2011/95/EU, 
according to which the directive seeks to ensure full respect for human dignity and 
the right to asylum of applicants for asylum and their ‘accompanying’ family 
members, does not preclude an interpretation requiring the family unit to be 
restored while exercising parental responsibility in the best interests of the child; 
in that regard, the present Chamber does not fail to recognise that the word 
‘accompanying’ is also open to a broader understanding (see, in relation to the 
understanding of ‘accompanying’ in the context of the rights of EU citizens […] 
CJEU, judgment of 16 July 2015 — C-218/14 [ECLI:EU:C:2015:476], Singh and 
Others — paragraph 54). From a teleological perspective, there is reason to 
believe that, by limiting the concept of family members to the members of the 
nuclear family (parents and their minor children) by establishing a connection (‘in 
relation to’) with the application for international protection and by linking the 
‘existence of the family in the country of origin’, the third indent of Article 2(j) of 
Directive 2011/95/EU requires the resumption of family life between the family 
members within the meaning of Article 7 of the Charter. Article 7 of the Charter 
must also be read in conjunction with the obligation to have regard to the child’s 
best interests, recognised in Article 24(2) of the Charter, and with account being 
taken of the need, expressed in Article 24(3), for a child to maintain on a regular 
basis a personal relationship with his or her parents (CJEU, judgment of 
6 December 2012 — C-356/11 and C-357/11 [ECLI:EU:C:2012: 776] — 
paragraph 76). In addition to the existence of legal ties, family life is characterised 
by a de facto family unit (see ECtHR, judgment of 2 November 2010 — 
no. 3976/05 [ECLI:CE:ECHR:2010:1102JUD000397605], Yigit v. Turkey — 
[Or. 15] paragraph 93) and a close family proximity between parents and their 
minor children […]. In that regard, the referring court takes the view that there 
would be reservations in assuming that the conditions laid down in the third indent 
of Article 2(j) of Directive 2011/95/EU are also satisfied where, depending on the 
circumstances of the individual case, the applicant parent’s stay in the host 
Member State is not at least to a certain extent intended to assume responsibility 
for the unmarried minor child who is the beneficiary of protection. 
26 (e) Question 3.(b) follows on from Question 3.(a) and seeks clarification 
regarding the relevant point in time for the assessment of a resumption of family 
life within the meaning of Article 7 of the Charter between the beneficiary of 
protection and the parent in the host Member State. 
BUNDESREPUBLIK DEUTSCHLAND 
 
13 
Anonymised version 
27 The referring court takes the view that it would hardly be in line with the 
objectives of Article 2(j) of Directive 2011/95/EU, which are set out in (d), if an 
applicant for asylum could invoke the resumption of family life to substantiate his 
status as a family member without there being any temporal restriction on the 
resumption of family life. In that regard, the concept of ‘in relation to the 
application for international protection’ could militate in favour of the view that 
Article 2(j) of Directive 2011/95/EU requires that the restoration of the de facto 
family unit must take place within a certain period after entry into the territory. 
28 Furthermore, the words ‘responsible’ and ‘is a minor’ in the third indent of 
Article 2(j) of Directive 2011/95/EU also suggest that the beneficiary of 
protection must have still been a minor within the meaning of Article 2(k) of 
Directive 2011/95/EU at the relevant time of the restoration of the family unit in 
the host Member State. 
29 (f) Question 4 seeks clarification as to whether the status of an applicant for 
asylum as a family member within the meaning of the third indent of Article 2(j) 
of Directive 2011/95/EU ends when the beneficiary of protection reaches the age 
of majority and the associated responsibility for a person who is a minor and not 
married ceases to exist. [Or. 16] 
30 The third indent of Article 2(j) of Directive 2011/95/EU provides that the father of 
the beneficiary of international protection is a member of the family when that 
beneficiary is a minor, is present in the same Member State in relation to the 
application for international protection and the family already existed in the 
country of origin. The link between the status of family member to the period of 
minority of the beneficiary of protection, which is limited by Article 2(k) of 
Directive 2011/95/EU, as well as the protection of the best interests of the child 
pursued by the third indent of Article 2(j) of Directive 2011/95/EU, could militate 
in favour of status of the father as a family member within the meaning of the 
third indent of Article 2(j) of Directive 2011/95/EU being lost when the 
beneficiary of protection reaches the age of majority. 
31 If the status of the father of the beneficiary of protection as a family member 
within the meaning of the third indent of Article 2(j) of Directive 2011/95/EU 
does in principle continue to exist beyond the point at which the child reaches the 
age of majority, clarification is required as to whether — beyond the situation in 
which the father’s stay in the host Member State or the child’s eligibility for 
protection comes to an end — that status ceases to exist at a certain point in time 
or upon the occurrence of a certain event. 
32 […] [Entitlement to make the reference] 
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