Opinion of the Advocate General — ECLI:EU:C:2021:384
Date: 2021-05-12
Language of the case: German
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation  C-91/20 — 1 
Case C-91/20 
Request for a preliminary ruling 
Date lodged: 
24 February 2020 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
18 December 2019 
Applicant and appellant on a point of law: 
LW 
Defendant and respondent on a point of law: 
Bundesrepublik Deutschland 
  
Copy 
Bundesverwaltungsgericht (Federal Administrative Court, Germany) 
ORDER 
[…] 
VG5K511/18.A 
 delivered on 
18 December 2019 
[…] 
In the administrative-law case 
LW, a minor child, 
EN 
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legally represented by her parents, 
[…] 
applicant and appellant on a point of law,   
[…] [Or. 2] 
v 
Bundesrepublik Deutschland, 
[…] 
 defendant and respondent on a point of law,   
the First Chamber of the Federal Administrative Court 
further to the hearing on 18 December 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 under Article 267 TFEU: 
1. Is Article 3 of Directive 2011/95/EU to be interpreted as meaning that 
it precludes a provision enacted by a Member State to the effect that 
the unmarried minor child of a person who has been granted refugee 
status must be granted refugee status derived from that person (that is 
to say, protection as a family member of a refugee) even in the case 
where that child — by virtue of the other parent — is, in any event, 
also a national of another country which is not the same as the 
refugee’s country of origin and the protection of which that child is 
able to avail itself of? 
2. Is Article 23(2) of Directive 2011/95/EU to be interpreted as meaning 
that, in the circumstances set out in question 1, the restriction whereby 
the entitlement of family members to claim the benefits referred to in 
Articles 24 to 35 of that directive is to be granted only as far as is 
compatible with the personal legal status of the family member 
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prohibits the minor child from being granted refugee status derived 
from the person recognised as a refugee? [Or. 3] 
3. In providing an answer to questions 1 and 2, is it material whether or 
not it is possible and reasonable for the child and its parents to take up 
residence in the country of which the child and the mother are 
nationals, the protection of which they are able to avail themselves of 
and which is not the same as the refugee’s (father’s) country of origin, 
or is it sufficient that family unity in Germany can be maintained on 
the basis of the rules governing the right of residence? 
G r o u n d s: 
I 
1 The applicant, who was born on […] 2017 in Germany, is applying for refugee 
status as a family member. She is, in any event, a Tunisian national. It has not 
been established by the court adjudicating on the substance of the case whether 
she also holds Syrian nationality. 
2 The applicant’s mother, who was born in Libya, is a Tunisian national. In her 
application for asylum, the applicant stated that, up until she left the country, she 
was habitually resident in Libya. Her application for asylum was unsuccessful. 
The applicant’s father is, by his account, a Syrian national of Arabic ethnicity and 
Muslim faith. He was granted refugee status in October 2015. 
3 By decision of 15 September 2017, the Bundesamt für Migration und Flüchtlinge 
(Federal Office for Migration and Refugees, Germany) (‘the Bundesamt’) rejected 
the applicant’s asylum application as manifestly unfounded. 
4 By the judgment under appeal of 17 January 2019, the Verwaltungsgericht 
Cottbus (Administrative Court, Cottbus, Germany) annulled the decision of 
15 September 2017 in so far as the applicant’s application to be granted protection 
as a refugee was rejected as manifestly unfounded and not as merely unfounded, 
but dismissed the remainder of the action. The applicant does not fulfil the 
conditions governing the grant of refugee status since she has no reason to have a 
well-founded fear of being persecuted in Tunisia, ‘her [Or. 4] State of origin — or 
one of them in any event’. The principle of subsidiarity in relation to international 
protection for refugees states that, if she has a well-founded fear of being 
persecuted in Syria, she must be instructed to avail herself of the protection 
available from Tunisia, of which she is a national. Neither is she eligible for 
protection as a family member of a refugee, in accordance with the first sentence 
of Paragraph 26(5) of the Asylgesetz (Law on Asylum; ‘AsylG’) in conjunction 
with Paragraph 26(2) thereof, on the basis of the protection which her Syrian 
father enjoys as a refugee in Germany. For it is contrary to higher-ranking EU 
law, and in particular to the principle of subsidiarity, which applies in EU law too 
and is a general principle of asylum law and international refugee law, to extend 
international protection to persons — like the applicant — who, on account not 
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least of their personal status as a national of another State that is able to protect 
them, and thus effectively by definition, do not require protection. 
5 In support of her appeal on a point of law, the applicant states that she is a 
Tunisian national. She submits that minor children born of parents having 
different national origins must be granted refugee status as a  family members, in 
accordance with Paragraph 26(2) of the AsylG in conjunction with 
Paragraph 26(5) thereof, even in the case where only one parent has been granted 
refugee status. This is not precluded by the principle of subsidiarity in relation to 
international protection for refugees. Article 3 of Directive 2011/95/EU allows a 
Member State, in cases where a family member is granted international protection, 
to provide for that protection to be extended to other members of that family, in so 
far as the latter are not caught by one of the grounds for exclusion laid down in 
Article 12 of Directive 2011/95/EU and in so far as their situation exhibits a 
connection with the rationale of international protection by virtue of the need to 
maintain family unity. Legislation must take particular account of the protection 
of minors and the best interests of the child. This also follows from Articles 3, 9, 
18 and 22 of, and the preamble to, the UN Convention on the Rights of the Child 
and the corresponding Joint Comment of 16 November 2017. 
6 The defendant defends the judgment under appeal. [Or. 5] 
II. 
7 The proceedings must be stayed. In accordance with Article 267 TFEU, a 
reference is to be made to the Court of Justice of the European Union (‘the Court 
of Justice’) for a preliminary ruling on the questions set out in the operative part 
of this order. Those questions concern the interpretation of Articles 3 and 23(2) 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’). 
8 1. In German law, the legal assessment of this case is governed by the Asylgesetz 
(‘AsylG’), in the version published on 2 September 2008 (BGBl. I, p. 1798), as 
last amended by Article 48 of the Law of 20 November 2019 (BGBl. I p. 1626). 
The first clause of the first sentence of Paragraph 77(1) of the AsylG provides 
that, in disputes falling within the scope of the AsylG, the court must rely on the 
situation of fact and of law obtaining at the time of the last hearing. 
9 The relevant legal framework for this case is thus formed by the following 
provisions of national law: 
 Paragraph 3 of the AsylG 
 
(1) A foreign national is a refugee within the meaning of the 
Convention of 28 July 1951 on the legal status of refugees […] if,  
 
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1. owing to a well-founded fear of being persecuted for reasons of 
race, religion, nationality, political opinion or membership of a 
particular social group,  
 
2. he resides outside the country (country of origin), (a) of which he 
is a national and is unable or, owing to such fear, is unwilling to 
avail himself of the protection of that country 
… 
 
Paragraph 26 of the AsylG 
… 
 
(2) A child of a person entitled to asylum who is unmarried and a 
minor at the time when the asylum application is filed shall, on 
request, be recognised as being entitled to asylum if the recognition 
[Or. 6] of the foreign national as being entitled to asylum is 
incontestable and not amenable to revocation or withdrawal. 
… 
 
(5) The provisions of subparagraphs 1 to 4 shall apply mutatis 
mutandis to family members, within the meaning of subparagraphs 
1 to 3, of persons entitled to international protection. Entitlement to 
asylum shall be replaced by refugee status or subsidiary 
protection. … 
… 
 
10 2. The questions referred for a preliminary ruling are material to the judgment to 
be given and require clarification by the Court of Justice. 
11 2.1 The questions referred for a preliminary ruling are material to the decision on 
the applicant’s application for refugee status. 
12 (a) The applicant does not qualify for refugee status in her own right 
(Paragraph 3(4) of the AsylG). 
13 Persons having two or more nationalities cannot be granted refugee status if they 
are able to avail themselves of the protection of one of the countries of which they 
are a national […]. This follows from the second subparagraph of Article 1(A)(2) 
of the Convention relating to the Status of Refugees of 28 July 1951 (‘the Geneva 
Convention’), as amended by the New York Protocol of 31 January 1967 […], 
which sets out the principle of subsidiarity in relation to international protection 
for refugees. In accordance with that provision, a person must not be deemed to be 
lacking the protection of the country of his or her nationality if, without any valid 
reason based on well-founded fear, that person has not availed himself or herself 
of the protection of one of the countries of which he or she is a national. Even 
persons having only one nationality who have a well-founded fear of persecution 
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in relation to another State (for example, the State of former habitual residence) 
must generally be instructed to avail themselves of the existing protection 
available from the State of which they are nationals (first subparagraph of 
Article 1(A)(2) of the Geneva Convention). Article 2(d) and (n) of Directive 
2011/95/EU and Paragraph 3(1) of the AsylG must also be interpreted to that 
effect. Accordingly, only persons who are unprotected because they benefit from 
no effective protection by a country of origin [Or. 7] within the meaning of 
Article 2(n) of Directive 2011/95/EU are refugees within the meaning of 
Article 2(d) of Directive 2011/95/EU […]. In accordance with those principles, 
the applicant does not qualify for refugee status owing to a well-founded fear of 
being persecuted. This is because the applicant is able to obtain effective 
protection from the Republic of Tunisia, a country of which she is a national. 
There is no evidence that the Republic of Tunisia would not be willing and able to 
grant the applicant the necessary protection against persecution and removal to 
Syria, the country of origin of her father, who has been recognised as a refugee, or 
to a third State (chain removal). 
14 (b) However, the minor applicant fulfils the conditions laid down in the first and 
second sentences of Paragraph 26(5) of the AsylG in conjunction with 
Paragraph 26(2) thereof for the grant of refugee status to the unmarried minor 
children of a parent recognised as a refugee. Her father, who, by his account, is 
Syrian, was granted refugee status. Paragraph 26(2) of the AsylG in conjunction 
with the first and second sentences of Paragraph 26(5) thereof covers children of a 
recognised refugee even if they were born in Germany. The parent-child 
relationship does not need to have pre-existed in the State in which the refugee is 
persecuted. Subject to EU law, the national law must be interpreted as meaning 
that protection as a family member of a refugee must be granted even in the case 
where the family member is (also) a national of a State where they do not face 
persecution. 
15 2.2 The questions referred for a preliminary ruling require clarification by the 
Court of Justice. 
16 (a) By the first question referred for a preliminary ruling, the national court wishes 
to ascertain whether, in a situation such as that at issue in the main proceedings, 
Article 3 of Directive 2011/95/EU must be interpreted as meaning that it precludes 
the rules laid down in Paragraph 26(2) in conjunction with the first and second 
sentences of Paragraph 26(5) AsylG, in accordance with which the national 
authorities are required to grant to the unmarried minor child of a recognised 
refugee the refugee status derived from that recognised refugee, even in the case 
where the child and his other parent are nationals of another [Or. 8] country 
which is not the same as the recognised refugee’s country of origin and of whose 
protection they are able to avail themselves. 
17 Article 3 of Directive 2011/95/EU allows the Member States to introduce more 
favourable standards for determining who qualifies as a refugee, in so far as those 
standards are compatible with that directive. 
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18 (aa) It is clear from the case-law of the Court of Justice that a more favourable 
standard is compatible with Directive 2011/95/EU if it does not jeopardise the 
general scheme or the objectives of the directive. National standards which 
provide for the grant of refugee status to third country nationals or stateless 
persons in situations which have no connection with the rationale of international 
protection are not compatible (judgment of the Court of Justice of 18 December 
2014, M’Bodj, C-542/13, EU:C:2014:2452, paragraph 44). Circumstances in 
which such a connection with the rationale of international protection is lacking 
are set out in the grounds for exclusion laid down in Article 12 of Directive 
2011/95/EU. Thus, for example, the reservation in Article 3 of Directive 
2011/95/EU precludes national provisions on the basis of which refugee status is 
granted to persons who are excluded from that status pursuant to Article 12(2) of 
Directive 2011/95/EU (judgment of the Court of Justice of 9 November 2010, B 
and D, C-57/09 and C-101/09, EU:C:2010:611, paragraph 115). Where family 
members of a recognised refugee are not caught by any of the grounds for 
exclusion laid down in Article 12 of Directive 2011/95/EU and their situation is, 
due to the need to maintain family unity, consistent with the rationale of 
international protection, Article 3 of Directive 2011/95/EU allows a Member State 
to extend that protection to other family members (judgment of the Court of 
Justice of 4 October 2018, Ahmedbekova and Ahmedbekov, C-652/16, 
EU:C:2018:801, paragraph 74). 
19 The extension of international protection to close family members of a beneficiary 
of international protection, which is provided for by Paragraph 26 of the AsylG 
irrespective of whether the person concerned has grounds for requiring protection 
in his or her own right too, has a dual function under national law. First, it flows 
from the experience that, when combating opposition forces, intolerant States, 
rather than [Or. 9] targeting a political opponent they cannot apprehend, tend to 
focus on persons who are particularly close to that persecuted individual, in order 
to achieve their goal of suppressing dissenting opinions in one way or another 
[…]. That correlation is highlighted in recital 36 of Directive 2011/95/EU. For the 
State of origin of the family member already recognised as the principal 
beneficiary of protection, it generally makes no difference in that regard whether 
the additional family member is a national of another State in which he or she is 
safe from persecution. Secondly, Paragraph 26 of the AsylG ‘overtransposes’ in a 
manner not required by EU law the protection which Article 23(2) of Directive 
2011/95/EU requires to be afforded to family members who do not themselves 
qualify for such protection. The national legislature does not ensure that such 
persons receive the benefits referred to in Articles 24 to 35 of Directive 
2011/95/EU by means of individual provisions. In order to preserve family unity, 
it does so by extending the status enjoyed by the beneficiary of international 
protection to the other members of that person’s family too, and — with the 
exception of persons who satisfy the personal grounds for exclusion under 
Article 12(2) of Directive 2011/95/EU (Paragraph 26(4) of the AsylG) — 
irrespective of whether the family members have any grounds for requiring 
protection in their own right. In the light of that dual function, the automatic 
granting of refugee status, under national law, to the family members of a person 
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to whom that status was granted under Directive 2011/95/EU, in any event 
generally exhibits a connection with the rationale of international protection 
(judgment of the Court of Justice of 4 October 2018, C-652/16, paragraph 72). 
20 (bb) It is necessary, however, to ascertain from the Court of Justice whether, under 
EU law, it is consistent with the general scheme and objectives of Directive 
2011/95/EU to grant protection as a family member of a refugee even to third-
country family members of a recognised refugee who are nationals of another 
country which is not the same as the refugee’s country of origin and the protection 
of which they are able to avail themselves of, or whether this is incompatible with 
their personal legal status. [Or. 10] 
21 (1) Various provisions of Directive 2011/95/EU and of the Geneva Convention, 
each of which reflects the principle of subsidiarity in relation to international 
protection for refugees, might indicate that the foregoing is incompatible. 
According to recital 4 of Directive 2011/95/EU, the Geneva Convention, as 
amended by the New York Protocol of 31 January 1967, provides the cornerstone 
of the international legal regime for the protection of refugees. The first 
subparagraph of Article 1(A)(2) of the Geneva Convention states that, for the 
purposes of that convention, the term ‘refugee’ is to apply to any person who, as a 
result of events occurring before 1 January 1951 and owing to well-founded fear 
of being persecuted, is outside the country of his or her nationality and is unable 
or, owing to such fear, is unwilling to avail himself or herself of the protection of 
that country. The first clause of the second subparagraph of Article 1(A)(2) of the 
Geneva Convention provides that, in the case of a person who has more than one 
nationality, the term ‘the country of his [or her] nationality’ is to mean each of the 
countries of which that person is a national. In accordance with the second clause 
of the second subparagraph of Article 1(A)(2) of the Geneva Convention, a person 
must not be deemed to be lacking the protection of the country of his or her 
nationality if, without any valid reason based on well-founded fear, that person 
has not availed himself or herself of the protection of one of the countries of 
which that person is a national. Article 1(A)(2) of the Geneva Convention is an 
expression of the principle of subsidiarity in relation to international protection for 
refugees. 
22 That principle is reflected in the recitals of Directive 2011/95/EU. According to 
recital 12 of Directive 2011/95/EU, the main objective of that directive is, inter 
alia, to ensure that Member States apply common criteria for the identification of 
persons genuinely in need of international protection. In accordance with 
recital 15 of Directive 2011/95/EU, those third-country nationals or stateless 
persons who are allowed to remain in the territories of the Member States for 
reasons not due to a need for international protection but on a discretionary basis 
on compassionate or humanitarian grounds fall outside the scope of that directive 
(see also, in that regard, judgment of the Court of Justice of 18 December 2014, 
C-542/13, paragraph 46). 
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23 From the point of view of substantive law, the principle of international 
subsidiarity is also expressed in Article 2(d) of Directive 2011/95/EU. The same 
[Or. 11] is true of Article [11](1)(c) of Directive 2011/95/EU. The cessation 
clause clearly indicates that a person who enjoys the protection of his or her own 
country is not in need of international protection (UNHCR, Handbook and 
Guidelines on Procedures and Criteria for Determining Refugee Status under the 
1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 
December 2011 version (German version, 2013), paragraph 129). The final clause 
of Article 23(2) of Directive 2011/95/EU is also regarded by some as a 
substantive-law expression of the principle of subsidiarity in relation to 
international protection for refugees. In this respect, personal legal status 
(‘persönliche Rechtsstellung’/‘statut juridique personnel’) includes possession of a 
different or an additional nationality ([…] see to that effect, inter alia, the Conseil 
du Contentieux des Etrangers (Council for asylum and immigration proceedings, 
Belgium), according to which Article 23 of Directive 2011/95/EU reminds the 
Member States of the need to take into account the personal legal status of the 
family member ‘(e.g. a different nationality)’. See European Asylum Support 
Office, Qualification for International Protection (Directive 2011/95/EU) A 
Judicial Analysis, 2018, p. 97, footnote 640). Compatibility with the personal 
legal status of the family member is addressed by the UN High Commissioner for 
Refugees in paragraph 184 of the ‘Handbook and Guidelines on Procedures and 
Criteria for Determining Refugee Status under the 1951 Convention and the 1967 
Protocol Relating to the Status of Refugees’, which is not legally binding but, in 
accordance with recital 22 of Directive 2011/95/EU, is nevertheless to be taken 
into account as an aid to interpretation for the purposes of achieving uniformity in 
the application of the law. That paragraph states, in relation to the second clause 
of the second subparagraph of Article 1(A)(2) of the Geneva Convention: 
 ‘If the head of a family meets the criteria of the definition, 
his dependants are normally granted refugee status 
according to the principle of family unity. It is obvious, 
however, that formal refugee status should not be granted to 
a dependant if this is incompatible with his personal legal 
status. Thus, a dependant member of a refugee family may 
be a national of the country of asylum or of another 
country, and may enjoy that country’s protection. To grant 
[Or. 12] him refugee status in such circumstances would 
not be called for.’ 
 
 
(see also, to that effect, UNHCR Standing Committee, Family Protection Issues, 
document EC/49/SC/CRP.14 of 4 June 1999, point 9, 
https://www.unhcr.org/fr/excom/standcom/4b30a6i8e/questions-relatives- 
protection-famille.html). 
24 Under Article 4(3)(e) of Directive 2011/95/EU, the assessment of an application 
for international protection is to be carried out on an individual basis and includes 
taking into account whether the applicant could reasonably be expected to avail 
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himself or herself of the protection of another country where he or she could assert 
citizenship. That standard transposes substantive conditions laid down elsewhere 
to an assessment by the authorities which, in the light of Article 1(A)(2) of the 
Geneva Convention, is concerned in particular with the requirement to investigate 
whether the applicant has more than one nationality […]. 
25 From a procedural point of view, the principle of subsidiarity in relation to 
international protection for refugees is expressed, inter alia, in Article 33(2)(b) of 
Directive 2013/32/EU and subparagraph (b) of the first sentence of Article 35 
thereof. 
26 The foregoing considerations might indicate that it is contrary to the directive for 
national law to provide for refugee status to be automatically extended to a family 
member who is a national of another country which is not the same as the 
refugee’s country of origin and the protection of which that person is able to avail 
himself or herself of. This would mean that the safeguarding of family unity in 
such a way as to preserve the rights arising from Article 23(2) of Directive 
2011/95/EU cannot be ensured — as it is under national law — by granting 
refugee status on the basis of Directive 2011/95/EU, but must be achieved by 
issuing a residence permit in accordance with the conditions laid down in the 
provisions on family reunification contained in the Aufenthaltsgesetz (Law on 
Residence). [Or. 13] 
27 (2) Militating in favour of the compatibility of extending refugee protection to the 
applicant notwithstanding her Tunisian nationality, by contrast, is the fact that 
hers is a derived refugee status, which, conversely, does not require family 
members to satisfy the criteria governing refugee status (Article 2(d) of Directive 
2011/95/EU) in their own right. If it is compatible with the directive to grant 
derived refugee status to family members even in the case where it is established 
that those family members have no reason to have a well-founded fear of being 
persecuted, it is difficult to explain why the existence of a country of origin 
affording protection which is not the same as the refugee’s country of origin 
should preclude entitlement to the grant of (derived) refugee status. After all, the 
ability [of family members] to avail themselves of the protection of the country of 
origin does not — contrary to the definition of ‘refugee’ — constitute a ground for 
exclusion. Even in this scenario, therefore, extending protection to the family 
member may, not least on account of the need to maintain family unity, exhibit a 
sufficient connection with the rationale of the international protection granted to 
the refugee. The question of whether family unity in the refugee’s country of 
refuge could also be ensured by the issue of a residence permit to the family 
member was not considered by the Court of Justice in Ahmedbekova (see 
judgment of the Court of Justice of 4 October 2018, C-652/16, paragraph 73). 
28 (b) It also falls to be ascertained what significance is to be attached to the 
reservation contained in Article 23(2) of Directive 2011/95/EU with respect to 
compatibility with the personal legal status of the family member. The reservation 
as regards compatibility with the personal legal status originates from an 
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amendment proposed by the European Parliament to the European Commission’s 
proposal for what became Directive 2004/83/EC. The wording ‘unless that status 
is incompatible with their existing status’ was explained as meaning that some 
family members may have a separate and different legal status that may not be 
compatible with international protection status (Report by the Committee on 
Citizens’ Freedoms and Rights, Justice and Home Affairs, 8 October 2002 
(COM(2001)510 — C5-0573/2001 — 2001/0207(CNS), p. 18, Amendment 22). 
[Or. 14] 
29 The UNHCR interprets that reservation as meaning that there are situations where 
the principle of derived status should not be observed, that is to say where family 
members wish to apply for asylum in their own right, or where the grant of 
derived status would be incompatible with their personal status, for example if 
they are nationals of the host country, or because their nationality entitles them to 
a better standard (UNHCR Annotated Comments on the EC Council Directive 
2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and 
Status of Third Country Nationals or Stateless Persons as Refugees or as Persons 
Who Otherwise Need International Protection and the Content of the Protection 
Granted (OJ L 304/12 of 30.9.2004), p. 38, with regard to Article 23(1) to (2)). 
30 Legal commentators argue that that reservation is directed only at nationals of the 
host Member State or of another Member State of the European Union or at third-
country nationals with a long-term right of residence […]. However, this cannot 
be inferred with the requisite clarity from Article 23(2) of Directive 2011/95/EU. 
The question therefore arises as to whether the reservation in Article 23(2) of 
Directive 2011/95/EU excludes family members, who are nationals of a third 
country which is not the same as the refugee’s country of origin and the protection 
of which they are able to avail themselves of, from entitlement to the benefits 
referred to in Articles 24 to 35 of Directive 2011/95/EU and whether it thereby 
refers in essence to the preservation of family unity in accordance with the law 
governing foreign nationals. 
31 (c) In the referring court’s view, it falls finally to be ascertained to what extent, in 
providing answers to questions 1 and 2, it is material whether, in the light of the 
refugee status enjoyed by one parent and in the factual circumstances of the 
individual case, it is possible and reasonable for the unmarried minor child and its 
parents to take up residence in the country [Or. 15] of which the child and one 
parent are nationals, the protection of which they are able to avail themselves of 
and which is not the same as the country of origin of the other parent, who is 
recognised as a refugee. It must be borne in mind in this regard that, under 
German law, family unity in the host Member State can, in principle, also be 
maintained on the basis of the provisions on family reunification contained in the 
Law on Residence, although this does not provide for an unconditional right 
covering all conceivable cases. 
32 It would be impossible for the refugee to take up residence in the country of which 
his or her family members are nationals if, for example, he or she had already 
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been refused entry to that country. It would any event be unreasonable for that 
person to do so if he or she had reason to fear of being removed to the State of 
persecution or exposed to the risk of removal to a third State (chain removal) 
(principle of non-refoulement). In the situation in the present case, however, such 
a course of action may be unreasonable not least because a refugee recognised in a 
Member State is supposed to be able to exercise with immediate effect — not only 
a mere right of residence but also — all the rights associated with the status of 
refugee; that person can do this automatically only in the State which has granted 
him or her refugee status (see also order of the Court of Justice of 13 November 
2019, Hamed and Omar, C-540/17 and C-541/17, EU:C:2019:964, paragraph 40). 
Neither is it clear whether account is also to be taken in this regard of other 
individual circumstances which, in the context of the facts of the case, make it 
seem impossible or unreasonable for the refugee, the unmarried minor child or the 
other parent to take up residence. The principle of proportionality might militate 
in favour of doing so. 
[…]