Opinion of the Advocate General — ECLI:EU:C:2023:375
Date: 2023-05-04
Language of the case: German
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-560/20 – 1 
Case C-560/20 
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: 
26 October 2020 
Referring court or tribunal: 
Verwaltungsgericht Wien (Austria) 
Date of the decision to refer: 
25 September 2020 
Appellants: 
CR 
GF 
TY 
Respondent authority: 
Landeshauptmann von Wien (head of government of the province 
of Vienna) 
      
Subject matter of the main proceedings 
Issue of a residence permit 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular Directive 2003/86/EC, Article 267 TFEU 
Questions referred for a preliminary ruling 
I. 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 Council 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-560/20 
 
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Directive 2003/86/EC of 22 September 2003 on the right to family reunification if 
the refugee reached the age of majority after being granted asylum but during the 
procedure for granting a residence permit to his parents? 
II. If Question I 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 
the Court of Justice of 12 April 2018, C-550/16, A and S, 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’? 
III. If Question I 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 event that the adult sister of the refugee 
were to be refused a residence permit, the parents of the refugee would be de facto 
compelled to waive their right to family reunification under Article 10(3)(a) of 
Directive 2003/86/EC because that adult sister of the refugee is in urgent need of 
the permanent care of her parents on account of her state of health and therefore 
cannot remain in the country of origin alone? 
IV. If Question II is to be answered in the affirmative: What criteria are to be 
applied when assessing whether such an application for family reunification was 
submitted ‘in principle’ within a period of three months within the meaning of the 
statements made in the judgment of the Court of Justice of 12 April 2018, 
C-550/16, A and S, paragraph 61? 
V. If Question II is to be answered in the affirmative: Can the refugee’s parents 
continue to rely on their right to family reunification under Article 10(3)(a) of 
Directive 2003/86/EC if three months and one day have elapsed between the date 
on which the minor was declared to have refugee status and the date on which 
they applied for family reunification? 
VI. Can a Member State require the refugee’s parents, in principle, to meet the 
conditions of Article 7(1) of Directive 2003/86/EC in a family reunification 
procedure under Article 10(3)(a) of Directive 2003/86/EC? 
VII. Is the requirement to meet the conditions referred to in Article 7(1) of 
Directive 2003/86/EC in the context of family reunification under Article 10(3)(a) 
of Directive 2003/86/EC dependent on whether the application for family 
reunification was submitted within a period of three months after the granting of 
the refugee status within the meaning of the third subparagraph of Article 12(1) of 
Directive 2003/86/EC? 
Provisions of Community law cited 
TFEU, in particular Article 20 
LANDESHAUPTMANN VON WIEN 
 
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Council Directive 2003/86/EC of 22 September 2003 on the right to family 
reunification, in particular Articles 2, 4, 7 and 9 
Provisions of international law cited 
European Convention on Human Rights – ECHR, Article 8 
Provisions of national law cited 
Niederlassungs- und Aufenthaltsgesetz (Law on establishment and residence) – 
‘the NAG’, in particular Paragraphs 2, 11 and 46 
Asylgesetz (Law on asylum) – ‘the AsylG’, in particular Paragraphs 34 and 35 
Brief summary of the facts and procedure 
1 Three cases concerning the issuing of residence permits under Article 46(1)(2) 
NAG are pending before the Verwaltungsgericht (Administrative Court). These 
three cases concern the parents (CR and GF) and the adult sister (TY) of RI, a 
refugee recognised in Austria. In the forms of order sought by the applicants, they 
request family reunification with RI. All the aforementioned people are Syrian 
citizens. 
2 RI came to Austria as an unaccompanied minor on 31 December 2015 and 
submitted an application for international protection on 8 January 2016. RI was 
granted refugee status by decision of the Bundesamts für Fremdenwesen und Asyl 
(Federal Office for Immigration and Asylum, Austria), which was served on 
5 January 2017 – and which, in accordance with Austrian law, became final on 
2 February 2017. 
3 On 6 April 2017, CR, GF and TY filed applications for family reunification with 
RI pursuant to Paragraph 35 of the AsylG. These applications were rejected by 
decision of the Austrian Embassy in Damascus, which was served on 29 May 
2018, because RI had since reached the age of majority. That decision became 
final on 26 June 2018. 
4 By email of 11 July 2018, CR, GF and TY submitted the applications for family 
reunification under Paragraph 46(1)(2) NAG that are at issue in the present case, 
invoking their rights deriving from Directive 2003/86/EC and invoking, with 
regard to TY, Article 8 ECHR. Those applications were rejected by decisions of 
the Landeshauptmann von Wien of 20 April 2020, because the applications had 
not been submitted ‘within three months of the granting of the refugee status’. An 
admissible appeal was lodged against those decisions in due time and referred to 
the Verwaltungsgericht Wien (Administrative Court of Vienna) for a decision. 
The latter held a public hearing in the related appeal cases on 3 September 2020. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-560/20 
 
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5 Based on the results of the investigation, it is clear that the appellants CR, GF and 
TY are unable to provide evidence of a right to accommodation regarded as usual 
for the area concerned in Austria, of sickness insurance compulsory in Austria or 
of stable and regular income. Furthermore, it is clear that TY suffers from cerebral 
palsy and is permanently dependent on a wheelchair and on support with regard to 
food intake and daily personal hygiene. She is essentially cared for by her mother 
CR and otherwise has no access to a social network in her current place of 
residence. She could not be left alone in Syria by her parents. 
Principal arguments of the parties to the main proceedings 
6 The appellants before the Administrative Court of Vienna deduce from 
paragraph 34 of the A and S judgment that, in the case of an application for family 
reunification under Article 10(3)(a) of Directive 2003/86/EC, the evidence 
referred to in Article 7(1) of Directive 2003/86/EC, for which provision has been 
made under Austrian law, cannot be required of the applicants. 
Brief summary of the basis for the reference 
7 The question that arises, in essence, for the Administrative Court of Vienna in the 
present case is whether the applicants can derive rights from Directive 
2003/86/EC, even though the refugee RI has since reached the age of majority. In 
the A and S judgment, the Court of Justice stated that a third-country national or 
stateless person who is below the age of 18 at the moment of his or her entry into 
the territory of a Member State and of the introduction of his or her asylum 
application in that State, but who, in the course of the asylum procedure, attains 
the age of majority and is thereafter granted refugee status must continue to be 
regarded as a ‘minor’ for the purposes of Article 2(f) in conjunction with 
Article 10(3)(a) of Directive 2003/86/EC. 
8 In the present cases, however, the third-country national did not attain the age of 
majority in the course of the asylum procedure – as was the case in the situation 
underlying the A and S judgment – but only during the family reunification 
procedure within the meaning of Article 10(3)(a) of Directive 2003/86/EC. In 
view of the reasons put forward by the Court of Justice for its decision in the A 
and S judgment, it is clear to the Administrative Court of Vienna that the 
reasoning given in that judgment is transferable to cases such as the present one 
(the considerations in the judgment of the Court of Justice of 16 July 2020, 
C-133/19, B.M.M. and Others, also indicate that, in the context of Directive 
2003/86/EC, the circumstance of the age of majority being attained during a 
pending procedure is not, in principle, significant, but rather account should be 
taken of the minority on the date the application is submitted). However, since – 
as far as the Administrative Court of Vienna is aware – there is not yet any case-
law from the Court of Justice on this point, Question I is asked. 
LANDESHAUPTMANN VON WIEN 
 
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9 If that question is answered in the affirmative, the question that then arises for the 
Administrative Court of Vienna is whether the reasoning given in paragraph 61 of 
the A and S judgment, according to which the application for family reunification 
made on the basis of Article 10(3)(a) of Directive 2003/86/EC must, in principle, 
be submitted within a period of three months of the date on which the ‘minor’ 
concerned was declared to have refugee status, is to be transferred to the present 
situation (Question II). Since, in the present cases, the age of majority was 
attained after refugee status had been granted, it would also be conceivable that 
such a period does not begin to run until the date on which the refugee attains the 
age of majority and that, therefore, an application for family reunification under 
Article 10(3)(a) of Directive 2003/86/EC submitted at a time when the refugee 
was still a minor has in any event been submitted in good time, irrespective of the 
temporal link between the submission of the application and the date on which 
asylum is granted. 
10 If Question II is also to be answered in the affirmative, the Administrative Court 
of Vienna is unable to ascertain, from the case-law of the Court of Justice, the 
criteria against which adherence to a period of, ‘in principle’, three months is to be 
assessed (Question IV.) 
11 In the present appeal cases, three months and one day elapsed between the date on 
which the minor was granted asylum and the applications for family reunification 
pursuant to Article 10(3)(a) of Directive 2003/86/EC. For the Administrative 
Court of Vienna, the question arises as to whether this means that the period of, 
‘in principle’, three months referred to in paragraph 61 of the A and S judgment 
has been observed (Question V). 
12 In that context, the Administrative Court of Vienna considers that the applicants 
cannot be accused of having pursued the legal remedy of submitting an 
application under Paragraph 35 of the Law on asylum, which, in accordance with 
Austria law, was the correct legal remedy on the date on which they submitted 
their applications for family reunification, and their applications were 
subsequently dismissed on the ground that the refugee had in the meantime 
reached the age of majority, because the applicants naturally had no influence on 
the point in time at which their applications were processed. The follow-up 
applications for family reunification under point 2 of Paragraph 46(1) NAG that 
are at issue in the present proceedings were eventually submitted immediately 
after the applications under Paragraph 35 AsylG had been dismissed, such that the 
Administrative Court of Vienna is not aware of any failure to comply with the 
time limit in this respect, and the question of whether the applications for family 
reunification were in principle submitted within three months of asylum having 
being granted can therefore relate only to the first applications for family 
reunification under Paragraph 35 AsylG three months and one day after the minor 
was granted asylum. 
13 It is not apparent to the Administrative Court of Vienna, from paragraph 34 or any 
other passage of the A and S judgment, that, in the case of an application for 
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family reunification under Article 10(3)(a) of Directive 2003/86/EC, the 
applicants cannot be required to provide the evidence referred to in Article 7(1) of 
Directive 2003/86/EC (see paragraph 6 above). Article 10(3)(a) of Directive 
2003/86/EC guarantees the family reunification of the first-degree relatives in the 
direct ascending line without applying the conditions laid down in Article 4(2)(a). 
This means that it is not necessary that the relatives are dependent on the family 
reunification sponsor and do not enjoy proper family support in the country of 
origin. However, the Administrative Court of Vienna is unable to see, either from 
the wording of that provision or from the general scheme of the Family 
Reunification Directive, for what reasons the requirements laid down in Article 7 
of Directive 2003/86/EC should not, in principle, apply to family reunification 
under Article 10(3)(a) of Directive 2003/86/EC (see, by contrast, family 
reunification under Article 4(1) of Directive 2003/86/EC, for which the 
application of Article 7 of Directive 2003/86/EC is expressly excluded pursuant to 
the first subparagraph of Article 12(1) of Directive 2003/86/EC). Question VI 
therefore arises. 
14 Furthermore, it is unclear to the Administrative Court of Vienna whether the 
request for such evidence depends on whether the application for family 
reunification was submitted within a period of three months after the granting of 
the refugee status, as laid down in the third subparagraph of Article 12(1) of 
Directive 2003/86/EC. In its schematic context, the period referred to in that 
subparagraph could, by virtue of the reference in the first subparagraph, relate 
only to the family members referred to in Article 4(1) of Directive 2003/86/EC. 
However, the provision could also be construed as meaning that it applies in 
principle to every application for family reunification (the judgment of the Court 
of Justice, C-380/17, K and B, paragraphs 46 and 47 could be understood in that 
sense), which is why Question VII seeks clarification regarding the interpretation 
of the third subparagraph of Article 12(1) of Directive 2003/86/EC. 
15 Austrian law does not cover the sponsor’s sister as a family member. In this 
respect, Austria has not made use of the possibility provided for in Article 10(2) 
of Directive 2003/86/EC. The appellants before the Administrative Court of 
Vienna argue that the care situation of the adult sister in the country of origin is 
not stable, no other relatives live in the country of origin and the sister is therefore 
entirely dependent on the continued care of her parents. 
16 For the Administrative Court of Vienna, it can be inferred from that situation that, 
if the sponsor’s sister were not also granted a residence permit at the same time, 
the applicant parents of the sponsor would be compelled in practice to waive any 
rights to family reunification they may be able to derive from Article 10(3)(a) of 
Directive 2003/86/EC. 
17 In its existing case-law on Article 20 TFEU (Case C-34/09, Zambrano, Case 
C-256/11, Dereci, Case C-133/15, Chavez-Vilchez and Others), the Court of 
Justice has held that a refusal of residence may be impermissible in relation to a 
third-country national where such a refusal would lead to a situation where 
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citizens of the Union would have to leave the territory of the Union. In those 
circumstances, those citizens of the Union would, in fact, be unable to exercise the 
substance of the rights conferred on them by virtue of their status as citizens of the 
Union. In the view of the Administrative Court of Vienna, however, the Court of 
Justice’s case-law to date relates, first, only to citizenship of the Union and, 
second, only to situations in which a third-country national is required to leave the 
territory of the European Union, but not to situations in which entry is refused. 
18 No Union citizens are involved in the present appeal cases, so a violation of the 
core element of Article 20 TFEU is out of the question. Nevertheless, it can be 
argued that, in so far as they are entitled to family reunification under Directive 
2003/86/EC, the applicants CR and GF are effectively deprived of the possibility 
of exercising the right to family reunification conferred on them by EU law if 
another person is denied the right of residence. In the view of the Administrative 
Court of Vienna, the considerations relating to Article 20 TFEU set out in the 
judgments of the Court of Justice cited above can be transferred to the exercise of 
the right to family reunification under Article 10(3)(a) of Directive 2003/86/EC, 
which is why Question III seeks to ascertain whether such de facto compulsion 
may extend the scope of Directive 2003/86/EC to other persons. 
19 It should be considered in this context that, in accordance with Austrian law, it is 
conceivable that, for overriding reasons relating to private and family life within 
the meaning of Article 8 ECHR, the sponsor’s adult sister may be granted the 
right of residence despite the failure to meet the legal requirements. However, an 
entitlement to a right of residence deriving directly from EU law could go beyond 
the protective content of Article 8 ECHR, which is why the question referred 
proves to be necessary to resolve the present appeal case concerning the 
applicant’s sister.