Opinion of the Advocate General — ECLI:EU:C:2017:824
Date: 2017-10-26
Language of the case: Dutch
Based on: Merger Treaty (1965)
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Second Chamber), 12 April 2018 1. EU law — Interpretation — Provision containing no express reference to the law of Member States — Independent and uniform interpretation — Applies to the determination of the date on which the ‘unaccompanied minor’ status of a refugee must be determined for the purposes of Directive 2003/86, (Council Directive 2003/86, Art. 2(f)) 2. Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Family reunification of refugees — Definition of ‘unaccompanied minor’ — Refugee below the age of 18 years at the moment of his entry into the territory of a Member State and of the introduction of his application for asylum in that State, but who attained his majority in the course of the asylum procedure — Included (Council Directive 2003/86, Arts 2(f) and 10(3)(a)) 1. See the text of the decision. (see paras 39-45) 2. Article 2(f) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in conjunction with Article 10(3)(a) thereof, must be interpreted as meaning that a third-country national or stateless person who is below the age of 18 at the time 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 be regarded as a ‘minor’ for the purposes of that provision. While the possibility for an asylum applicant of submitting a family reunification application on the basis of Directive 2003/86 is thus subject to the conditions that his or her application for asylum has already been the object of a positive final decision, it must however be observed that that condition is easily explained by the fact that before the adoption of such a decision it is impossible to know with certainty whether the person concerned fulfils the conditions to be granted refugee status, which in turn determines the right to be granted family reunification. Thus, after the application for international protection is submitted in accordance with Chapter II of Directive 2011/95, any third-country national or stateless person who fulfils the material conditions laid down by Chapter III of that directive 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. In those circumstances, to make the right to family reunification under Article 10(3)(a) of Directive 2003/86 depend upon the moment at which the competent national authority formally adopts the decision recognising the refugee status of the person concerned and, therefore, on how quickly or slowly the application for international protection is processed by that authority, would call into question the effectiveness of that provision and would go against not only the aim of that directive, which is to promote family reunification and to grant in that regard a specific protection to refugees, in particular unaccompanied minors, but also the principles of equal treatment and legal certainty. Conversely, taking the date on which the application for international protection was submitted as that by reference which it is appropriate to assess the age of a refugee for the purposes of Article 10(3)(a) of Directive 2003/86 enables identical treatment and foreseeability to be guaranteed for all applicants who are in the same situation chronologically, by ensuring that the success of the application for family reunification depends principally upon facts attributable to the applicant and not to the administration such as the time taken processing the application for international protection or the application for family reunification (see, by analogy, judgment of 17 July 2014, Noorzia, C‑338/13, EU:C:2014:2092, paragraph 17). It is true that, since, as the Netherlands Government and the Commission submit, it would be incompatible with the aim of Article 10(3)(a) of Directive 2003/86 for a refugee who had the status of an unaccompanied minor at the time of his or her application but who attained his or her majority during the procedure to be able to rely on the entitlement under that provision without any time limit in order to obtain a family reunification, his or her application seeking reunification must be made within a reasonable time. For the purposes of determining such reasonable time, the answer given by the EU legislature in the similar context of Article 12(1) third subparagraph of that directive has indicative worth, with the result that it must be held that the application for family reunification made on the basis of Article 10(3)(a) of that directive must, in principle, in such a situation be submitted within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status. (see paras 51, 54, 55, 60, 61, 64, operative part)