Opinion of the Advocate General — ECLI:EU:C:2019:681
Date: 2019-09-05
Language of the case: Hungarian
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Hungary

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Translation C-519/18 — 1 
Case C-519/18  
Request for a preliminary ruling 
Date lodged: 
7 August 2018 
Referring court: 
Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) 
Date of the decision to refer: 
16 July 2018 
Applicant: 
TB 
Defendant: 
Bevándorlási és Menekültügyi Hivatal (Immigration and Asylum 
Office, Hungary) 
  
Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and 
Labour Court, Hungary) 
[...] 
In administrative immigration proceedings [...] brought by TB [...] Budapest [...], 
applicant, [...] against the Bevándorlási és Menekültügyi Hivatal (Hungarian 
Immigration and Asylum Office) Budapest [...], defendant [...], this court has 
made the following 
Order: 
The court suspends the proceedings and submits to the Court of Justice of the 
European Union a reference for a preliminary ruling on the following questions: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 16. 7. 2018 — CASE C-519/18 
 
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1. Must Article 10(2) of Council Directive 2003/86/EC on the right to family 
reunification be interpreted as meaning that, if a Member State, under that 
article, authorises the entry of a family member other than those referred to 
in Article 4, only the requirement under Article 10(2) (that the family 
member must be ‘dependent on the refugee’) can be applied to that family 
member? 
2. If the first question is answered in the affirmative, does the status of 
‘dependent’ person (‘dependency’) as referred to in Article 4(2)(a) of the 
Directive imply a factual situation in which the various aspects of 
dependency must all be present, or is it sufficient that any of those aspects is 
present, depending on the specific circumstances of each case, for there to be 
dependency? In that context, is it consistent with the requirement established 
in Article 10(2) (that the family member must be ‘dependent on the 
refugee’) that a national provision, excluding any individual assessment, 
takes account of a single factual element, an indicator of dependency 
(‘[being] objectively unable to provide for [his or her] own needs on account 
of [his or her] state of health’), as a factor meaning that the requirement in 
question is satisfied? 
3. In the event that the first question is answered in the negative and that, 
therefore, a Member State can apply other requirements in addition to that 
set out in Article 10(2) (that the family member must be ‘dependent on the 
refugee’), does this mean that the Member State is entitled, if it sees fit, to 
establish any requirement, including those laid down in Article 4(2) and (3) 
in relation to other family members, or can the Member State only apply the 
requirement contained in Article 4(3) of the Directive? In that case, what 
factual situation is entailed by the requirement ‘objectively unable to provide 
for their own needs on account of their state of health’ in Article 4(3) of the 
Directive? Must it be interpreted as meaning that such family members are 
unable [to provide] for ‘their own needs’ or that ‘they are unable’ to look 
after ‘themselves’, or, if applicable, in some other way? 
[procedural matters of domestic law] 
Basis for the reference: 
I. Factual background 
On 12 January 2016 the applicant’s sister [...] (‘the applicant for residence’) 
applied to the Hungarian diplomatic mission in Teheran for a residence permit for 
purposes of family reunification and a visa for the purpose of obtaining the 
residence permit, indicating as the sponsor the applicant, whom the asylum 
authority had recognised as having refugee status by a decision [...] of 
7 September 2015. 
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The authority hearing the administrative appeal [...] confirmed the [...] first-tier 
decision, by which the first-tier authority had refused the application under 
Paragraph 13(1)(d) and Paragraph 18(1)(a) and (b) of the a harmadik országbeli 
állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law 
No II of 2007 on the entry and stay of third country nationals, ‘the 2007 Law’), 
claiming, on the one hand, that the applicant for residence had provided the 
asylum authority with false data and inaccurate facts in order to obtain the right of 
residence and, on the other hand, because, having regard to her training and 
health, the applicant had not proved that she was objectively unable to provide for 
her own needs on account of her state of health inasmuch as, according to the 
medical documents submitted with her application, she was suffering from 
depression that obliged her to take medication regularly. 
In the administrative action, the applicant submits that the defendant failed 
adequately to examine the facts when applying Paragraph 18(1)(a) and (b) of the 
2007 Law. Thus, he maintains that the defendant unlawfully (due to lack of 
evidence) found that false data and inaccurate facts had been put forward in the 
original documents filed, because those documents and the data in them — such 
as family relationships — were an accurate reflection of reality. The applicant 
requested that a reference for a preliminary ruling be made concerning the 
interpretation of Paragraph 18(1)(a) and (b) of the 2007 Law, but withdrew that 
request in the light of the [...] judgment of the Kúria (Supreme Court, Hungary) 
that had been delivered in the meantime, in which the Kúria (Supreme Court) 
ruled, in line with the applicant’s position, on the interpretation of the contested 
provision and the evidence required to be produced thereunder. 
Challenging the substance of the refusal based on Paragraph 19(4)(b) of the 2007 
Law, the applicant requested that a reference for a preliminary ruling be made in 
connection also with the grounds of refusal based on failure to satisfy the 
requirement laid down in that paragraph, under which applicants for residence 
must demonstrate during the procedure that they are objectively unable to provide 
for their own needs as a result of their state of health. In the applicant’s view, the 
rules contained in Paragraph 19(4) of the 2007 Law given as grounds for the 
refusal conflict with Article 10(1) and (2) of Directive 2003/86/EC on family 
reunification (‘the Directive’), as a result of which the applicant invoked the direct 
effect of the Directive by virtue of the primacy of EU law.  
The defendant contends that the administrative action should be dismissed, 
claiming that its decision is not unlawful. It made no submission concerning the 
request that a reference for a preliminary ruling be made. 
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II. Law applicable in this case 
Paragraph 19 of the 2007 Law 
‘(1) A third country national can obtain a residence permit for the purpose of 
family reunification where he or she is a family member of a third country 
national who has a residence permit, immigration permit, permanent residence 
permit, interim permanent residence permit or a national or EC permanent 
residence permit, or of a person who holds a residence card or permanent 
residence card under a specific law (for the purposes of this paragraph “the 
sponsor”); 
(2) The following can obtain a residence permit for the purpose of family 
reunification: 
(a) a family member of a person who has been granted refugee status, or 
(b) the parent of an unaccompanied minor who has been granted refugee status 
or, in the absence of the parent, the minor’s legally appointed guardian. 
(3) Family reunification with a person who has been granted refugee status may 
not be refused merely because no documents are available proving the existence 
of the family relationship. 
(4) The following can obtain a residence permit for the purpose of family 
reunification: 
(a) the parents dependent on the sponsor or his or her spouse or on the person 
who has been granted refugee status; 
(b) the siblings and relatives in the direct line of the sponsor or his or her spouse 
or of the person who has been granted refugee status where they are 
objectively unable to provide for their own needs on account of their state of 
health. 
...’. 
(Article 4 of the Directive) 
‘1. The Member States shall authorise the entry and residence, pursuant to this 
Directive and subject to compliance with the conditions laid down in Chapter IV, 
as well as in Article 16, of the following family members: 
(a) the sponsor’s spouse; 
(b) the minor children of the sponsor and of his/her spouse, including children 
adopted in accordance with a decision taken by the competent authority in the 
Member State concerned or a decision which is automatically enforceable due to 
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international obligations of that Member State or must be recognised in 
accordance with international obligations; 
(c) the minor children including adopted children of the sponsor where the 
sponsor has custody and the children are dependent on him or her. Member States 
may authorise the reunification of children of whom custody is shared, provided 
the other party sharing custody has given his or her agreement; 
(d) the minor children including adopted children of the spouse where the 
spouse has custody and the children are dependent on him or her. Member States 
may authorise the reunification of children of whom custody is shared, provided 
the other party sharing custody has given his or her agreement. 
2. The Member States may, by law or regulation, authorise the entry and 
residence, pursuant to this Directive and subject to compliance with the conditions 
laid down in Chapter IV, of the following family members: 
(a) first-degree relatives in the direct ascending line of the sponsor or his or her 
spouse, where they are dependent on them and do not enjoy proper family support 
in the country of origin; 
(b) the adult unmarried children of the sponsor or his or her spouse, where they 
are objectively unable to provide for their own needs on account of their state of 
health. 
3. The Member States may, by law or regulation, authorise the entry and 
residence, pursuant to this Directive and subject to compliance with the conditions 
laid down in Chapter IV, of the unmarried partner, being a third country national, 
with whom the sponsor is in a duly attested stable long-term relationship, or of a 
third country national who is bound to the sponsor by a registered partnership in 
accordance with Article 5(2), and of the unmarried minor children, including 
adopted children, as well as the adult unmarried children who are objectively 
unable to provide for their own needs on account of their state of health, of such 
persons. 
Member States may decide that registered partners are to be treated equally as 
spouses with respect to family reunification. 
…’ 
(Article 10 of the Directive) 
‘1. Article 4 shall apply to the definition of family members except that the 
third subparagraph of paragraph 1 thereof shall not apply to the children of 
refugees. 
2. The Member States may authorise family reunification of other family 
members not referred to in Article 4, if they are dependent on the refugee.’ 
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III. Reasons why the request for a preliminary ruling is necessary 
In the applicant’s submission, which this court finds to be well founded, 
Paragraph 19(4)(b) of the 2007 Law conflicts with Article 10(2) of the Directive 
because, according to Article 10(2), the Member States may also authorise family 
reunification of other family members not referred to in Article 4, if they are 
dependent on the refugee, but, where the national legislature avails itself of that 
option to regulate matters differently and extends the right in question to other 
members of the refugee’s family, it cannot impose a completely different 
requirement from that laid down by the Directive. 
In the view of this court, the non-compliance described above cannot be assessed 
unless there is a reference for a preliminary ruling, and it has therefore examined 
whether the requirements laid down in the CILFIT case (283/81) for referring 
questions for a preliminary ruling are satisfied. 
Given that the defendant refused the application for a residence permit relying on 
two grounds, in order to find in favour of the applicant for residence this court 
must find the applicant’s administrative action to be well founded in respect of 
each of those grounds for refusal. The issue of whether Paragraph 19(4)(b) of the 
2007 Law complies with Article 10(2) of the Directive therefore goes to the 
substance of the matter, and, in consequence, the requirement for making a 
reference for a preliminary ruling (that the question must be relevant) is satisfied, 
in other words, a court might decide differently on the substance of the case if the 
answer to the question is in the applicant’s favour. 
This court has also examined whether the Court of Justice of the European Union 
has interpreted the contested provision, that is to say, whether a Hungarian court 
has made a reference for a preliminary ruling in relation to that provision. 
In that context, this court has found that, in its judgment KfV.III.37.968/2014/6, 
the Kúria (Supreme Court) examined whether it was necessary to make a 
reference for a preliminary ruling in relation to Paragraph 19(4)(b) of the 2007 
Law. As a result of that examination it concluded that ‘nevertheless, in the view of 
the Kúria [Supreme Court], neither the possibility of applying Article 10(2) of the 
EC Directive directly in this case, nor the need to make a reference for a 
preliminary ruling relating to the interpretation of that article, was raised 
because the mere fact that Article 10(2) has allowed the Member States also to 
authorise family reunification for other family members not referred to in 
Article 4 if they are dependent on the refugee does not mean that family 
reunification can only be subject to the requirement established in that article, 
that is to say, to the fact of being dependent on the refugee. The applicant has 
therefore incorrectly claimed that, in the case of siblings, considered to be “other 
family members not referred to in Article 4”, the Hungarian legislature has, 
contrary to the EC Directive, established a requirement that they must be 
“objectively unable to provide for their own needs on account of their state of 
health.”’ 
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Furthermore, whilst in its judgment Kfv.III.37.419/2016/6 
(https://birosag.hu/ugyfelkapcsolati-portal/birosagi-hatarozatok-gyuitemenye), the 
Kúria (Supreme Court) examined the requirements under Paragraph 19(4) of the 
2007 Law and, in that context, the status of ‘dependent persons’ of parents (point 
(a)), the judgment gives no guidance on whether the requirement that they must be 
‘objectively unable to provide for their own needs on account of their state of 
health’ under Paragraph 19(4)(b) of the 2007 Law is substantively the same as the 
status of dependent persons in the case of the refugee’s siblings, or on whether 
that requirement under the 2007 Law complies with the rules in the Directive. 
That is because, although the Kúria (Supreme Court) concluded, in the case of the 
siblings’ applications, that it could not declare the two provisions to which these 
proceedings also relate — Paragraph 19(4)(b) of the 2007 Law and Article 10(2) 
of the Directive — to be inconsistent without making a reference for a preliminary 
ruling, it rejected the request that a reference for a preliminary ruling be made, 
holding that the defendant had not properly examined the facts, and that it was 
therefore not possible to determine in those proceedings whether, in the case of 
the siblings, an examination of the complex relationship of dependency was 
relevant. 
This court has accordingly found that the requirement for making a reference for a 
preliminary ruling (that the Court of Justice of the European Union has not yet 
interpreted the provision of Community law in question) is satisfied. 
This court has also borne in mind that, although the two judgments of the Kúria 
(Supreme Court) cited above also relied on the fact that the applicant had 
submitted its request [...] out of time as a ground for refusing the request that a 
reference for a preliminary ruling be made [procedural matters of domestic law], 
in the present case this court considers that the matter of the interpretation of 
Article 10(2) of the Directive has arisen again as a result of the discrepancy 
between national law and EU law, which means that any national law that 
contravenes EU law must be disapplied by the court of its own motion by virtue of 
the primacy of EU law. This court was therefore obliged to initiate, of its own 
motion, the procedure for making a reference for a preliminary ruling as a 
condition for disapplying national law. 
The questions raised relate to the fact that the applicant for residence, as the 
refugee’s sister, is not a person ‘objectively unable to provide for [her] own needs 
on account of [her] state of health’, which is a ground for refusing the application, 
and to the difference between the rules in Paragraph 19(4) of the 2007 Law and 
the wording, in English and Hungarian, of the rules in Article 10(1) and (2) of the 
Directive, and to the substantively different concepts that the two provisions use 
in the same context.  
According to Article 10(1) of the Directive, the definition of the family members 
of the refugee who are entitled to unconditional family reunification is contained 
in Article 4. That list does not include siblings. In relation to refugees’ siblings, 
Article 10(2) of the Directive contains the relevant family reunification provision. 
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According to that article, the Member States may also authorise residence for the 
purpose of family reunification for ‘other family members’ not referred to in 
Article 4, if they comply with the requirement laid down. The requirement that 
Article 10(2) of the Directive lays down in relation to other family members is, in 
[the English version], that they must be ‘dependent on the refugee’, which means, 
in a free translation into Hungarian, ‘a menekülttel függő viszonyban lévő’ [that 
they are in a relationship of dependency in relation to the refugee], whereas the 
official translation of the Directive into Hungarian contains the expression 
‘menekült eltartottja’ [supported by the refugee] as a requirement for family 
reunification in relation to other family members. 
Under Paragraph 19(4)(b) of the 2007 Law, in contrast, a requirement for 
authorising family reunification in the case of the refugee’s siblings is that they 
must be ‘objectively unable to provide for their own needs on account of their 
state of health’, which therefore, in this court’s view, strengthens the requirement 
in the Directive and makes it stricter. 
The requirement under Paragraph 19(4)(b) of the 2007 Law may correspond to the 
notion of being ‘objectively unable to provide for their own needs on account of 
their state of health’ included as a requirement for family reunification in the case 
of the family members referred to in Article 4(2)(b) and Article 4(3) of the 
Directive. The list of those family members includes the adult unmarried children 
of the sponsor or his or her spouse, and the adult unmarried children that the 
sponsor has with his or her unmarried partner or registered partner, but not the 
sponsor’s siblings. 
In this court’s view, which it shares with the applicant, so far as the refugee’s 
siblings are concerned, Paragraph 19(4)(b) of the 2007 Law cannot depart from 
the requirement of being ‘dependent on the refugee’ established in the Directive 
because, under Article 10(2) of the Directive, a Member State, when it 
incorporates the Directive into its internal legal order, is only entitled to make 
other provision in respect of the definition of the persons who are ‘other family 
members’. However, when it is a question of applications for family reunification 
by family members included in that category of persons, the Member State is 
obliged to transpose the requirement for family reunification established in the 
Directive that the person must be ‘dependent on the refugee’, and it cannot impose 
as a condition the requirement of being ‘objectively unable to provide for their 
own needs on account of their state of health’ which Article 4(2)(b) of the 
Directive establishes in relation to other family members. 
As regards the difference in content between the two requirements, this court 
would also note that, in relation to the parents of a refugee or sponsor, in case 
Kfv.III.37.419/2016 cited above, the Kúria (Supreme Court) held, in relation to 
application of the requirement for family reunification established in 
Paragraph 19(4)(a) of the 2007 Law (that is to say, the status of dependent person 
as a situation of dependency) that, in the procedure for issuing residence permits 
for the purpose of family reunification, the authority, having regard to the case-
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law of the Court of Justice of the European Union, must examine, in relation to 
the status of dependent person, whether there is a complex relationship of 
dependency between the family members (Paragraph 19(4) of the 2007 Law and 
Articles 4 and 10 of Directive 2003/86/EC). 
According to the decision of the Kúria (Supreme Court), ‘[23] the status of 
dependent person is interpreted both in the Commission’s communication 
(COM/2014/0210 final) on interpretation of the Directive and in the case-law of 
the Court of Justice. A significant number of the relevant rulings of the Court of 
Justice — on which the applicants moreover rely — were delivered in relation to 
Directive 2004/38/EC, and those rulings therefore relate to family reunification 
for holders of the right to move and reside freely, whereas only a small number 
relate to the directive in question in this case (Directive 2003/86/EC). 
Nevertheless, the Commission’s communication emphasises that the terms used in 
those decisions do not suggest that the findings in the cases relating to holders of 
the right to move and reside freely cannot also be used as a criterion for assessing 
the status of dependent person in the case of third-country applicants. 
[24] As regards whether a person is dependent, various judgments are drafted in 
such a way that the status of ‘dependent’ family member is the result of a factual 
situation characterised by the fact that material support for the family member is 
provided by the holder of the right of residence [Lebon (316/85) and Zhu and 
Chen (C-200/02), for example]. It is a feature of most of the cases that the status 
of dependent person entails not only economic dependency, but also physical, 
emotional and material dependency [Rahman (C-83/11) and Lebon (316/85)]. 
The status of dependent person can therefore in reality be described as a complex 
relationship of dependency, one aspect of which is economic dependency.’(BH 
2017.3.102.) 
In the light of the reasoning likewise set out in that decision of the Kúria 
(Supreme Court), this court notes that, according to the judicial practice developed 
in relation to Paragraph 19(4)(a) of the 2007 Law, the status of dependent person 
and the requirement under Paragraph 19(4)(b) of the 2007 Law of being 
‘objectively unable to provide for their own needs on account of their state of 
health’ are substantively dissimilar. Therefore, in this court’s view, the question 
that needs to be determined in the first instance in order to decide upon the 
application by the sibling of a third-country national refugee for a residence 
permit for the purpose of family reunification is whether the requirement of being 
‘dependent on the refugee’ established in the Directive in the case of other family 
members is completely the same, both conceptually and substantively, as the 
notion of being ‘supported by the refugee’ [‘a menekült eltartottja’] contained in 
the Hungarian translation and, furthermore, whether the requirement laid down in 
the 2007 Law in the case of siblings of the refugee that they must be ‘objectively 
unable to provide for their own needs on account of their state of health’ 
completely encompasses the content of the status of a person ‘dependent on the 
refugee’ and, if it does not, what notion is most appropriate for resolving the 
conceptual discrepancy between the two expressions. 
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For the foregoing reasons, this court finds it necessary for the questions raised to 
be answered in the context of a reference for a preliminary ruling, because it 
cannot give a reasoned ruling in this case unless those questions are resolved as a 
preliminary issue [...]. 
[...] [procedural matters of domestic law] 
Budapest, 16 July 2018 
[...] [signatures]