OPINION OF ADVOCATE GENERAL
WAHL
delivered on 29 November 2018 (1)
Case C‑635/17
E.
v
Staatssecretaris van Veiligheid en Justitie
(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting at Haarlem, Netherlands)
(Reference for a preliminary ruling — Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86/EC — Family reunification for beneficiaries of international protection — Article 11(2) — Burden and standard of proof required to demonstrate a family relationship — Lack of official documentary evidence — National procedural rule allowing for the rejection of an application for family reunification where the sponsor has failed to provide a plausible explanation for the lack of such evidence — Admissibility)
I.      Introduction
1.        May a national authority reject the application for family reunification introduced by a beneficiary of international protection where the beneficiary has failed to explain in a plausible manner the reasons as to why he cannot provide any official records attesting to the existence of a family relationship?
2.        That, in essence, is the question referred by the rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting at Haarlem, Netherlands) to the Court in the context of family reunification proceedings concerning a minor of Eritrean nationality whose parentage cannot be proven by the sponsor (2) by means of the requisite official records.
3.        This case affords the Court the opportunity to rule on the specific provisions aimed at beneficiaries of international protection for the exercise of their right to family reunification and, in particular, to rule on the burden and standard of proof required to demonstrate the existence of a family relationship, as provided for in Article 11(2) of Directive 2003/86.
4.        In particular, the Court will have to determine the scope of the duty of cooperation placed on the sponsor and on the competent national authority in order to establish the existence of that relationship. Specifically, the Court will have to make a balanced assessment of all the interests at play, taking account, on the one hand, of the particular challenges which beneficiaries of international protection may, due to their status and situation, face in obtaining and producing official documents from their country of origin and, on the other hand, the risk of the family reunification procedure being manipulated in order to gain, in an abusive manner, lawful entry or residence in a Member State for a third country national.
II.    Legal context
A.      EU law
5.        Directive 2003/86 lays down the conditions for exercise of the right to family reunification enjoyed by nationals of third countries residing lawfully on the territory of Member States.
6.        Recitals 2 and 8 of that Directive state as follows:
‘(2)      Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.
…
(8)      Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification.’
7.        Article 5(2) and (5) of Chapter III of that directive on the submission and examination of applications for family reunification provide:
‘(2)      The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified copies of family member(s)’ travel documents.
If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary.
…
(5)      When examining an application, the Member States shall have due regard to the best interests of minor children.’
8.        In Chapter V of Directive 2003/86, on family reunification of refugees, Article 10(2) provides:
‘The Member States may authorise family reunification of other family members not referred to in Article 4, if they are dependent on the refugee.’
9.        Article 11 of that Directive, the interpretation of which is requested in this case, provides:
‘(1)      Article 5 shall apply to the submission and examination of the application, subject to paragraph 2 of this Article.
(2)      Where a refugee cannot provide official documentary evidence of the family relationship, the Member States shall take into account other evidence, to be assessed in accordance with national law, of the existence of such relationship. A decision rejecting an application may not be based solely on the fact that documentary evidence is lacking.’
10.      In Chapter VII of that Directive on penalties and redress, Article 17 is worded as follows:
‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’
B.      Netherlands law
11.      Directive 2003/86 was transposed into Netherlands law by the Wet tot algehele herziening van de Vreemdelingenwet (Law on the general reform of the law on foreign nationals) (3) of 23 November 2000.
12.      Under Article 29(2) of that law, a minor has the right to be reunited with a parent who has been granted international protection if the application for family reunification has been made within three months from the date of the granting of that protection. That provision also applies where the minor in question is a ward with whom the sponsor has a real family relationship.
13.      The legislative practice on proof of family relationships is specified in the Vreemdelingencirculaire 2000 (2000 Circular on foreign nationals) and in the Werkinstructie 2014/9 (Work Instruction 2014/9) issued by the Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Service, Netherlands). (4)
14.      In accordance with that legislation, the sponsor must demonstrate that the person with whom reunification is sought was actually part of the sponsor’s family before his arrival in the Netherlands and that that relationship has not been severed. To that end, he must prove the identity of that person by means of official documents (passport, identity card, declaration of nationality, military passbook and so forth), and must demonstrate the actual existence of his family relationship with that person (for example, through a marriage certificate, a birth certificate, a family record book, a death certificate, and so forth), and prove that the minor is adopted or a ward. (5) The sponsor is also invited, when submitting his application, to provide any other documents which may demonstrate the existence of this family relationship.
15.      Where the sponsor applies for family reunification with a ward, the actual existence of that relationship is to be assessed by taking account, in particular, of the reasons why the ward was welcomed into the family. If the sponsor fails to provide official documents, the national legislation requires him to demonstrate, in a plausible manner, that he is not responsible for the lack of such documentation. (6)
16.      Where the competent national authority accepts, taking account of the explanation provided by the sponsor, that he is not in a position to provide official documents proving the actual existence of the family relationship, the authority is to assess, in the light of other elements of proof provided by the sponsor, such as photographs, diplomas, vaccination cards or even statements from a religious authority, whether more in-depth investigations, such as interviews including identification questions or DNA tests carried out in consular offices of the Netherlands, are necessary.
17.      However, if the competent national authority is of the view that the sponsor has failed to provide a plausible explanation as to why he does not have any official documents proving the existence of a family relationship and, in addition, considers the other evidence supplied by the sponsor to be insufficient, the authority is not obliged to carry out further investigations and can therefore reject the application for family reunification.
III. Facts, procedure and the questions referred
18.      The sponsor is an Eritrean national who resides in the Netherlands with her daughter. On 11 March 2015, the Netherlands authorities granted her subsidiary protection status and, based on that, a residence permit.
A.      Examination of the application for family reunification by the State Secretary
19.      On 16 April 2015, the sponsor submitted an application for family reunification on behalf of the applicant, a minor of Eritrean nationality who was born on 1 July 2003 in Eritrea. (7) She claims that the minor is the son of her older sister and has, since the death of his parents when he was five years old, been placed in her care. The sponsor had fled Eritrea in 2013 for Sudan with her daughter and this child. Nevertheless, she was forced to leave him behind in Sudan when she fled to the Netherlands, due to a lack of money. The minor, now 15 years old, was placed with an acquaintance in Sudan.
20.      It is common ground that, in this case, the sponsor has not provided any official documentary evidence of the identity of the minor in question, the death of his parents or her guardianship of him. The expert evaluation of the written confirmation issued to that effect by the Eritrean Liberation Front showed that it had been issued by an authority that was not competent to do so; the Netherlands Government further clarifying at the hearing that it was a forged document.
21.      It is also common ground that the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands) (8) has stated, throughout the proceedings, the reasons why a family relationship had not been established and asked the sponsor to explain, in a detailed and comprehensive manner, why she did not have the required official documents.
22.      The State Secretary claimed that there was no plausible explanation for the absence of documentary evidence of the minor’s identity in so far as, according to the information report on the situation in Eritrea produced by the European Asylum Support Office (EASO), (9) Eritrea issues identity cards, school or student cards and residents’ cards. As a result of the arguments put forward by the sponsor in this regard, the State Secretary did not challenge her anymore on the lack of such evidence.
23.      Nevertheless, he put some further questions to the sponsor in order to establish the reasons for and nature of her relationship with the minor in question, which she answered through an organisation representing her interests.
24.      However, the State Secretary maintained his position that there was no plausible explanation for not providing official evidence of the death of the minor’s biological parents and of the sponsor’s guardianship of him. According to the State Secretary, as follows from the EASO information report, Eritrea issues death certificates as well as guardianship documents. In accordance with the relevant national legislation, he therefore did not consider it necessary to conduct any additional inquiries, such as the holding of an interview with identification questions, and rejected the application for family reunification by decision of 12 May 2016. By decision of 27 October 2016, he also rejected, as unfounded, the sponsor’s complaint regarding the decision of 12 May 2016.
25.      As a result, the sponsor lodged an appeal before the referring court.
B.      The appeal before the referring court
26.      Before the referring court, the State Secretary argued that the procedure followed was in conformity with Article 11(2) of Directive 2003/86, taking account, in particular, of the words used by the EU legislature in the first sentence of that provision. According to him, the words ‘where a refugee cannot provide official documentary evidence of the family relationship’ would imply that the sponsor must provide a plausible explanation for the lack of such evidence. Thus, the State Secretary submitted that ‘if official documentary evidence can be required and the refugee does not have it but does not provide a plausible explanation as to why he does not have it, [the competent national authority is] not obliged to take into account other evidence or to hold an interview with identification questions’.
27.      In contrast, the applicant argued that the procedure did not comply with Article 11(2) of Directive 2003/86. First, taking account, in particular, of the second sentence of that provision, a Member State cannot reject an application for family reunification solely because the sponsor has not provided official documentary evidence of a family relationship. In such a scenario, the Member State must, in fact, take into account other evidence of the existence of such a relationship which implies that it holds an interview including identification questions. Next, the applicant disputes the State Secretary’s interpretation that the word ‘cannot’ implies that the sponsor must provide a plausible explanation of the fact that he does not have, did not have or could not have access to the documentary evidence. Finally, the applicant states that, if such an interpretation is adopted by the Court, the explanations provided in this case for the absence of death certificates of the biological parents of the minor concerned are plausible.
28.      The referring court has doubts as to the interpretation of Article 11(2) of Directive 2003/86 and, in particular, the interpretation of the first sentence thereof, ‘where a refugee cannot provide official documentary evidence of the family relationship’. In this regard, it notes that the EU legislature did not make express provision for a test of plausibility nor for a margin of appreciation on the part of Member States. Nevertheless, it wonders whether the word ‘cannot’ does not suggest that the refugee must provide a plausible explanation of the fact that he has not provided and still cannot provide official documentary evidence of the relationship. On this point, the court refers to the principles governing the assessment of an application for international protection, according to which, in the context of that assessment, account may be taken of the fact that the applicant has made a genuine effort to substantiate his application and has provided a satisfactory explanation for the lack of evidence, demonstrating a risk of persecution or of serious harm in his country of origin.
C.      The questions referred
29.      In light of the foregoing, the rechtbank Den Haag, zittingplaats Haarlem (District Court, The Hague, sitting at Haarlem) decided to stay proceedings and to refer the two following questions to the Court for a preliminary ruling:
‘(1)      Having regard to Article 3(2)(c) of Directive 2003/86 and the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638), does the Court have jurisdiction to reply to questions referred by the Netherlands courts for a preliminary ruling concerning the interpretation of provisions of that directive in a case concerning the right of residence of a member of the family of a beneficiary of subsidiary protection, if, under Netherlands law, that directive has been declared directly and unconditionally applicable to beneficiaries of subsidiary protection?
(2)      Must Article 11(2) of Directive 2003/86 be interpreted as precluding the rejection of a refugee’s application for family reunification solely because of the fact that he has not provided any official documentary evidence of the family relationship with his application,
or
must Article 11(2) of Directive 2003/86 be interpreted as precluding the rejection of a refugee’s application for family reunification on the sole ground of a lack of any official documentary evidence of the family relationship only if that refugee has given a plausible explanation for the fact that he has not provided such documentary evidence and for his statement that he is not yet able to provide such documentary evidence?’
30.      The applicant and the sponsor, as well as the Netherlands Government and the European Commission have submitted written and oral observations.
31.      It must nevertheless be pointed out that since the making of the reference for a preliminary ruling, the Court has had an opportunity, in its judgment of 7 November 2018, K and B (C‑380/17, EU:C:2018:877), to rule on a question identical to the first question and has declared that it does have jurisdiction.
IV.    Analysis
32.      Before analysing the second question referred, it should be pointed out that the Netherlands Government does not agree with its wording.
33.      In its observations, the Netherlands Government submits that the premiss on which the request for a preliminary ruling is based is wrong. In particular, it considers that the way it is phrased does not reflect the reality of the procedure before the referring court. Contrary to the wording of the question referred, the State Secretary has not rejected the sponsor’s application purely because she had not provided official documents and had not provided a plausible explanation for the absence of such documents. In fact, the State Secretary had, before rejecting the application, carried out various investigations during the assessment procedure, taking account of other evidence such as the statement from the Eritrean Liberation Front and asking the sponsor additional questions designed to ascertain the reasons for and the nature of her relationship with the minor in question.
34.      Before both the referring court and the Court, the sponsor complains that the State Secretary, in applying the relevant national legislation, rejected her application for family reunification without first having granted her request to hold an interview with identification questions. That is a further investigatory measure, as referred to in Article 5(2) of Directive 2003/86.
35.      Therefore, in view of these considerations, I consider that the second question which the referring court is asking the Court is, in essence, whether, in the context of an assessment of an application for family reunification made by a beneficiary of international protection without accompanying official documentary evidence of a family relationship, a competent national authority can, under Article 11(2) of Directive 2003/86, reject such an application without conducting further investigations, where that beneficiary has not explained, in a plausible manner, the reasons why he cannot provide such evidence.
A.      Preliminary remarks
36.      Before proceeding with the interpretation of Article 11(2) of Directive 2003/86, I wish to make some preliminary remarks regarding the particular difficulties which this case presents.
37.      The EU legislature does not, in fact, define the concept of ‘family’ for the purposes of Directive 2003/86.
38.      It is clear from recital 9 and Article 4(1) of that directive that family reunification should apply, in any case, to members of the nuclear family, that is to say, the spouse and the minor children, 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 by virtue of international obligations. (10)
39.      As regards, in particular, the family reunification of beneficiaries of international protection, it is clear from Article 10(2) of Directive 2003/86, that the Member States may authorise family reunification of ‘other family members not referred to in Article 4, if they are dependent on the refugee’. In this context, the Netherlands legislation authorises family reunification of wards with whom the sponsor has real family ties.
40.      In so far as the existence of a family necessarily includes the existence of a family relationship, which is a particular legal relationship, the benefit of the right to family reunification implies that the existence of that family relationship be demonstrated, and, in the case of a ward, the actual existence of such a relationship. That relationship is, in principle, established by official documents issued by the competent authorities of the country of origin.
41.      It is in this regard that this case raises difficulties, since the sponsor has not submitted any official document capable of proving the actual existence of this family relationship with the minor in question, which is necessary for the application of Directive 2003/86. The ‘guardianship’ which she claims to have of this child appears, in reality, to be more akin to a customary and voluntary arrangement to take charge of the care, education and protection of a child who is a member of the wider family. In this type of situation, in order to best serve the interests of that child, it is necessary to ensure that his biological parents are in fact deceased and that he has a real family relationship with the sponsor, in order to ensure that he is not exposed to a risk of abuse or exploitation.
42.      Having identified the particular features of this case, it is now appropriate to examine the rules and principles governing proof of the family relationship within the meaning of Article 11(2) of Directive 2003/86.
B.      The rules and principles governing evidence of the family relationship within the meaning of Article 11(2) of Directive 2003/86
43.      In the framework of the family reunification procedure set out in Directive 2003/86, the EU legislature distinguishes between two types of procedure for proof of a family relationship.
44.      The first is a general procedure aimed at nationals of third countries, for which the material conditions are set out in Article 5(2) of that directive.
45.      That provision requires the sponsor to submit documentary evidence of the family relationship with his application. Nevertheless, the competent national authority may consider such evidence to be insufficient to establish the existence of that relationship and may thus decide to conduct interviews with the sponsor and his family and carry out such other investigations as are found to be necessary. (11) In line with the provisions set out in Article 16 of Directive 2003/86, the EU legislature seeks to prevent fraudulent or abusive applications for family reunification based, for example, on marriages of convenience or fraudulent or fictitious acknowledgments of paternity, by going beyond the requirement for the submission of official documents to the carrying out of further investigations so that the actual existence of the family relationship can be demonstrated. (12)
46.      The second procedure is a special procedure designed for beneficiaries of international protection, for whom the material conditions are set out in Article 11 of Directive 2003/86.
47.      This regime must guarantee the effectiveness of the right to a normal family life by bringing together family members who, because of the situation in their country of origin, have fled persecution and serious harm and have been separated during a forced displacement or escape.
48.      Having regard to the particular difficulties faced by this group in obtaining or producing official documents from their country of origin, this procedure lays down, in accordance with recital 8 of Directive 2003/86 and in line with the case-law of the European Court of Human Rights, the conditions for demonstrating the family relationship, which must necessarily be more ‘favourable’ for the exercise of this right. (13)
49.      Thus, where a beneficiary of international protection makes an application for family reunification, the general provisions of Article 5 of Directive 2003/86 apply, subject to the specific provisions laid down in Article 11(2) of that Directive.
50.      That article lays down special rules ‘where a refugee cannot provide official documentary evidence of the family relationship.’
51.      First, it is clear from the first sentence of Article 11(2) of Directive 2003/86 that the Member States are obliged to take into account ‘other evidence’ of the family relationship. (14) These must be assessed in accordance with national law. (15) Nevertheless, the margin of appreciation which Member States enjoy should not be used in such a way as to defeat the objective of Directive 2003/86, which is to adapt the procedure regarding evidence to the particular difficulties which beneficiaries of international protection are likely to face. The requirements for such evidence must be realistic and adapted to the actual situation in which the persons in question find themselves. (16)
52.      Second, it is clear from the wording of the second sentence of Article 11(2) of that Directive that ‘a decision rejecting an application may not be based solely on the fact that documentary evidence is lacking’. In my opinion, there can be no doubt that the EU legislature is referring here to official documentary evidence. This provision follows the logic of the previous paragraph of this Opinion by setting out a clear and unconditional prohibition under which the lack of documentary evidence of the existence of the family relationship does not, of itself, constitute a reason for rejecting the application for family reunification. That provision is also in line with the recommendations of the Council of Europe (17) and the United Nations High Commissioner for Refugees (HCR). (18)
53.      The question which this case now raises is whether, in the context of an application for family reunification, which is not supported by any official documentary evidence of the family relationship, a Member State may have recourse to the further investigations, provided for in Article 5(2) of Directive 2003/86, subject to the condition that the sponsor provide a plausible explanation as to why he cannot provide those documents.
C.      The duty of the sponsor to provide a plausible explanation for the lack of official documentary evidence of the family relationship
54.      The Court has acknowledged that there is no individual right for members of a family to be allowed onto the territory of the Member States and that the Member States enjoy certain discretion when they examine applications for family reunification and may impose conditions on the exercise of that right. (19)
55.      Nevertheless, the Court has also recognised that this power must be strictly interpreted since the authorisation of family reunification remains the general rule and this discretion must not be used by Member States in a manner which would undermine the objective of Directive 2003/86. (20)
56.      In the present case, the requirement established by the relevant legislation, even if not clear from the express terms of Directive 2003/86, is perfectly in keeping with the framework of cooperation which must be established between the sponsor and the competent national authority for the assessment of an application for family reunification which is not supported by any official documentary evidence, and makes it possible, if it is implemented in a way which respects the procedural requirements of that directive, to achieve its objectives without disregarding the particular regime enjoyed by beneficiaries of international protection.
1.      The obligation at issue falls within the scope of the sponsor’s duty of cooperation in the context of the assessment of an application for family reunification which is not supported by any official documentary evidence
57.      As is clear from the wording of Article 5(2) and Article 11(2) of Directive 2003/86, the burden of proof rests, in the first instance, on the applicant. It is he who initiates the procedure in order to benefit from a right and it is also he alone who possesses the official documentary evidence to support his statements and to establish the existence of the family relationship claimed, on which the granting of the application depends.
58.      The EU legislature also places a duty of cooperation on Member States. It is thus clear from the aforementioned provisions that, where a beneficiary of international protection is incapable of producing official documentary evidence to prove the family relationship, the Member State is obliged, in accordance with Article 11(2) of Directive 2003/86, to take into consideration other evidence of the existence of that relationship and may, furthermore, pursuant to Article 5(2) of that Directive, conduct further investigations, such as interviews with the sponsor and his family members, and any other investigations that are found to be necessary.
59.      It is in the context of this cooperation, and for the purposes of its proper conduct, that the competent national authority may, in my view, request the sponsor to explain why he cannot provide any officially registered records proving the existence of the family relationship and may, in my view, attach particular importance to the plausible nature of the explanation given.
60.      In fact, if the purpose of the investigatory procedure provided for in Article 11(2) of Directive 2003/86 is to adapt the applicable procedure for the demonstration of family relationships, providing more flexible rules for the benefit of beneficiaries of international protection, it must also include obligations on those beneficiaries so as to ensure, in accordance with Article 16 of the Directive, that the procedure for family reunification is not used in an abusive or fraudulent manner, in order to circumvent the rules on entry to and residence in a Member State of third country nationals, or to do so maliciously, placing children at risk of abuse, exploitation or trafficking. (21)
61.      In these circumstances, where a beneficiary of international protection decides to initiate the procedure for family reunification, despite the absence of any official documentary evidence of the family relationship, the onus of proof upon him implies that, for the purposes of the assessment of his application, he must explain why he cannot provide such documents.
62.      The competent national authority cannot be expected to undertake an assessment of the application by conducting further investigations, even though the sponsor has not provided any official records proving the existence of the family relationship and has not, despite the steps taken and the means placed at his disposal, put forward any satisfactory explanation.
63.      Thus, although the sponsor is not required to prove the actual existence of the family relationship by official documents, he must nevertheless endeavour to explain, in a sufficiently detailed and comprehensive way, the reasons why he cannot provide such documents. That must allow him to demonstrate that his application is genuine, despite the lack of those documents, and that the assessment of that application requires the cooperation of the competent national authority to enable the gathering of all the evidence that can prove the existence of that relationship. (22)
64.      It is therefore in the light of the explanation provided by the sponsor and, where relevant, the other evidence presented, that the competent national authority will be in a position to distinguish between a situation in which it is appropriate to reject the application outright because it is manifestly unfounded or because it is fraudulent or abusive and a situation in which it is appropriate to assist the sponsor by conducting further investigations because there are clear grounds for believing that he is genuinely not able to provide any official documents.
65.      It is clear that the requirements for the explanations provided by the sponsor must be proportionate in order that no unreasonable burden is placed on him with respect to what is necessary for the demonstration of his inability.
66.      The level of those requirements must consequently depend on the nature and the level of difficulty actually experienced by the sponsor in obtaining official documents. While the competent national authority can therefore require a detailed and comprehensive explanation where it is clear that the sponsor can obtain those documents, it must, in my view, reduce the stringency of those requirements where it is found that obtaining such documents is impossible due to, for example, the non-existence of, or serious shortcomings in, the civil registry services in the sponsor’s country of origin.
67.      It should be noted here that an obligation such as that established by the national legislation at issue is an obligation provided for in the context of the assessment of an application for international protection.
2.      The obligation at issue falls within the scope of an applicant’s obligations in the context of the assessment of an application for international protection
68.      The procedure for assessing an application for international protection and that for assessing an application for family reunification do indeed have two distinct purposes. The first seeks to grant the status of refugee or beneficiary of subsidiary protection to those who are exposed to acts of persecution or risks of serious harm in their country of origin. The second seeks to reunite family members of a beneficiary of international protection who have been separated during a forced displacement or because they were forced to flee.
69.      These procedures do, however, share common features relating to the identity of the applicant and the very particular situation in which he finds himself, which, without doubt, explains why the European Court of Human Rights refers to its case-law on evidence of a risk of persecution in the event of a return to the country of origin (application for international protection) when determining the burden and standard of proof required to demonstrate a family relationship (application for family reunification). (23)
70.      Thus, in both procedures, the cooperation which must be established between the applicant and the competent national authority is based on the same premiss, namely that an applicant for international protection or a beneficiary of the same is not, taking into account the fact that he has been forced to flee his country of origin, in a position to have official documents which prove, in particular, his identity, his nationality or the existence of a family relationship.
71.      In the context of an application for international protection, the Court has ruled that an applicant is obliged, in accordance with Article 13(1) of Directive 2013/32/EU, (24) to cooperate with the competent national authority, in particular for the purposes of determining his identity, his nationality and the grounds justifying his application; that means supplying, as far as possible, the required supporting documents and, where appropriate, the explanations and information requested. (25) These represent the essential and necessary elements for the assessment of the application.
72.      This obligation is in line with that laid down in Article 4(5) of Directive 2011/95/EU, (26) on the assessment of the facts and circumstances to be undertaken by the competent national authority in order to examine such an application. That article provides that, where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects do not need confirmation if the applicant has made a genuine effort to substantiate his application, if he has submitted all the relevant elements and has provided a ‘satisfactory’ explanation for the lack of the other relevant elements, (27) if his statements are found to be coherent and plausible and if they do not run counter to available specific and general information relevant to his application.
73.      In light of all the above elements, I therefore consider that Article 11(2) of Directive 2003/86 can be interpreted as meaning that a competent national authority is entitled to require a sponsor to provide a plausible explanation where he fails to supply official documentary evidence of the existence of a family relationship.
74.      It is nevertheless appropriate to restrict the discretion enjoyed by the authority in that regard.
D.      The competent national authority’s obligations when assessing the plausible nature of the sponsor’s explanations
75.      The national authority alone is competent to evaluate, under the control of the national courts, the explanation given by the sponsor. It must nevertheless implement this obligation in accordance with the procedural requirements of Directive 2003/86 and, in particular, those referred to in Article 17 thereof.
76.      Thus, while the sponsor is obliged to explain, in a plausible manner, why he cannot prove the existence of a family relationship by official documents, the competent national authority must, for its part, carry out an appropriate assessment of his explanation.
77.      In particular, and in accordance with Article 17 of Directive 2003/86, (28) the national authority must carry out an individualised assessment which must take account not only of the relevant specific and general information concerning the situation in the sponsor’s country of origin but also of his personality, his specific situation and the particular difficulties faced by him. (29)
78.      This approach allows delimiting an assessment which is marked by subjectivity, despite the factual evidence on which that assessment must be based.
79.      On the one hand, the explanations for the sponsor’s inability to provide any official documents proving the existence of a family relationship must be assessed objectively, having regard to both the specific and general information relating to the situation in his country of origin. It must be information which is relevant, objective, reliable, specific and up to date and likely to be included in reports produced by national and international administrations, in particular, the bodies of the Council of Europe or under the aegis of the United Nations system, but also information within the scope of judgments of international courts, such as judgments of the European Court of Human Rights. (30) In the context of an application for family reunification which is not accompanied by any official documents proving the existence of a family relationship, those types of information, to which the national authorities have full access, should enable an assessment of the functioning of the civil registry services in the country of origin and, in particular, the reality of shortcomings affecting certain areas of that country or certain groups of persons.
80.      That is the approach adopted by the EU legislature in the context of the assessment of applications for international protection.
81.      Thus, in accordance with Article 4(3)(a) of Directive 2011/95, the Member States must carry out an assessment of an application on an individual basis, taking into account all relevant facts as they relate to the country of origin, including the laws and regulations of that country and the manner in which they are applied. Furthermore, in accordance with Article 4(5)(c) of Directive 2011/95, the coherent and plausible nature of the applicant’s statements is to be assessed in the light of the available specific and general information relevant to the applicant’s case. (31)
82.      To enable competent national authorities to meet those requirements day-to-day and to achieve harmonisation of the procedures for the assessment of applications for international protection in the Member States, EASO was entrusted with the task of drawing up information reports, including an assessment, by subject matter, of the situation in the country of origin of the applicant for international protection. These reports are drawn up on the basis of the gathering of relevant, reliable, accurate and up-to-date information on countries of origin, making use of all relevant sources of information, including that from governmental, non-governmental and international organisations. (32)
83.      In the present case, the State Secretary thus referred, for the purposes of his assessment, to the section ‘Official civil status documents’ in EASO’s information report on Eritrea. (33)
84.      Nevertheless, it is up to the referring court to ensure that that report represents an adequate source of information for the purposes of its assessment and that it enables reliable and precise information to be gleaned therefrom regarding the actual functioning of the civil registry services in rural areas and/or in the sponsor’s place of origin, the issuing of death certificates and guardianship documents and the extent to which the sponsor can, in reality and in conformity with the relevant national legislation, obtain official records from his country of origin or its diplomatic representations.
85.      On the other hand, the explanations regarding the sponsor’s inability to provide official documents proving the existence of a family relationship must be assessed with regard to his individual status and personal situation, and in conformity with Article 17 of Directive 2003/86 and the case-law of the Court. The information report from EASO is not a substitute for an individual assessment of the application that takes account of the sponsor’s capabilities.
86.      Age and, in particular, whether the sponsor is a minor, gender, level of education, origin and social status, but also the reasons which justified the grant of international protection and the trauma experienced, may thus constitute factors to be taken into consideration when assessing the reasons why he does not have official documents and the level of difficulties which he may face.
87.      In view of these considerations, I am of the opinion that Article 11(2) of Directive 2003/86 does not preclude national legislation such as that at issue if the competent national authority carries out an appropriate assessment of the explanations provided by the sponsor, taking account not only of the relevant general and specific information concerning the situation in the sponsor’s country of origin but also of the particular situation in which the sponsor finds himself.
V.      Conclusion
88.      Having regard to all the foregoing considerations, I propose that the Court answer the second question referred for a preliminary ruling by the rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting at Haarlem, Netherlands) as follows:
Article 11(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as not precluding national legislation under which the beneficiary of international protection is obliged, for the purposes of the assessment of his application for family reunification, to explain in a plausible manner the reasons why he is not able to provide official documentary evidence of a family relationship, provided that the competent national authority considers his explanations in the light not only of the relevant general and specific information concerning the situation in his country of origin but also of the particular situation in which he finds himself.
1      Original language: French.
2      Article 2(c) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12) defines ‘sponsor’ as ‘a third country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her’.
3      Stb. 2000, No 495.
4      This was replaced by the Werkinstructie 2016/17 (Work Instruction No 2016/17).
5      The 2000 circular on foreign nationals specifies at paragraph C2/4 that the child in question may also be a ward with whom the sponsor has a real family relationship.
6      See, in this regard, the explanations of the Immigration and Naturalisation Service ‘The family reunification procedure for holders of an asylum residence permit’, available at the following internet address: https://ind.nl/Documents/GHA_Engels.pdf (p. 6, part 1, step 3).
7      The facts set out in this Opinion also take into account the details given in the national court file available to the Court.
8      ‘The State Secretary’.
9      Country of Origin Information Report, Eritrea, Country Focus, May 2015, available at the following internet address: https://coi.easo.europa.eu/administration/easo/PLib/EASO-Eritrea-CountryFocus_EN_May2015.pdf and expressly referred to by the State Secretary in the letters sent to the sponsor, which were annexed to the observations lodged with the Court. With regard to the creation of EASO, see Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ 2010 L 132, p. 11).
10      Pursuant to recital 10 and Article 4(2) and (3) of Directive 2003/86, Member States may authorise family reunification for relatives in the direct ascending line, adult unmarried children, unmarried or registered partners, as well as, in the event of a polygamous marriage, minor children of a further spouse or sponsor.
11      It is clear from the Communication from the Commission to the European Parliament and the Council on guidance for the application of Directive 2003/86 [COM(2014) 210 final, ‘the guidance’] that every application must include documentary evidence and that the ‘necessity’ of conducting interviews or other investigations must be assessed on a case-by-case basis in the context of an individualised assessment of the application (paragraph 3.2., p. 10).
12      Article 16(1)(b) and (c) of the Directive provides that Member States may reject an application for entry and residence for the purposes of family reunification where the sponsor and his family members do not or no longer live in a real marital or family relationship. In accordance with paragraph 2 of that provision, they may also reject an application where it is shown that false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used or where the marriage, partnership or adoption was contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State.
13      See, in this regard, the Green Paper of the Commission on the right to family reunification of third country nationals living in the European Union (Directive 2003/86) [COM(2011) 735 final), in particular, paragraph 4.2, ‘Other asylum related questions (p. 7), and the Commission guidance, in particular, paragraph 6.1.2 (p. 23 and 24). See also, in this regard, ECtHR 10 July 2014, Mugenzi v. France (CE:ECHR:2014:0710JUD005270109, § 54).
14      This obligation is also in line with the case-law of the European Court of Human Rights, see ECtHR, 10 July 2014, Tanda-Muzinga v. France (CE:ECHR:2014:0710JUD000226010, § 79).
15      See, in this regard, judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraphs 42 and 45).
16      In accordance with Article 5(2) of Directive 2003/86, Member States may carry out interviews with the sponsor and his family and conduct other investigations that are found to be necessary. At paragraph 6.1.2 of its guidelines, the Commission points out that this ‘other evidence’ of the family relationship may consist of written and/or oral statements from the applicants, interviews with family members, or investigations carried out on the situation abroad. These statements can then be corroborated by supporting evidence such as audiovisual materials, any documents or physical materials such as diplomas or proof of money transfers. The Commission considers that, where serious doubts remain after other types of proof have been examined, or where there are strong indications of fraudulent intent, DNA testing can be used as a last resort, such tests not being able to prove extended or dependent family members, especially in cases of adoption (p. 23).
17      See, in this regard, Recommendation No. R (99) 23 of the Council of Ministers of the Council of Europe to Member States on family reunion for refugees and other persons in need of international protection, adopted on 15 September 1999.
18      See, in this regard, Conclusion No 24 of the Executive Committee of the High Commissioner’s programme adopted during its 32nd session, available on the following website: http://www.unhcr.org/publications/legal/41b041534/compilation-conclusions-adopted-executive-committee-international-protection.html (p. 43).
19      See, to this effect, judgments of 27 June 2006, Parliament v Council (C‑540/03, EU:C:2006:429, paragraph 59), and of 6 December 2012, O & Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 79).
20      See, to this effect, judgment of 6 December 2012, O & Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 74 and the case-law cited).
21      Moreover, the Commission guidelines state that, in the interests of both society and of genuine applicants, it is imperative that the Member States take firm action against abuse and fraud of the rights conferred by Directive 2003/86 (see, in particular, paragraph 7.3 ‘Abuse and Fraud’, p. 27).
22      The Court has, moreover, ruled that a Member State is better placed than an applicant to have access to certain types of documents (see, in this regard, judgment of 22 November 2012, M. (C‑277/11, EU:C:2012:744, paragraph 66)).
23      See, in this respect, ECtHR, 10 July 2014, Tanda-Muzinga v. France (CE:ECHR:2014:0710JUD000226010, § 69).
24      Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).
25      See judgment of 14 September 2017, K. (C‑18/16, EU:C:2017:680, paragraph 38).
26      Directive 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).
27      See judgment of 25 January 2018, F (C‑473/16, EU:C:2018:36, paragraph 41 and the case-law cited).
28      See, in this regard, paragraphs 6.1.2. and 7.4. of the Commission’s guidance.
29      See, in this regard, judgment of 4 March 2010, Chakroun (C‑578/08, EU:C:2010:117), in which the Court ruled that Article 17 of Directive 2003/86 precludes national legislation which allows the competent national authority to reject an application for family reunification without carrying out an actual examination of the situation of each applicant. In that case, the Court held to be contrary to that directive national legislation providing for a minimum income level below which all family reunifications were refused, in so far as the application for family reunification would be rejected irrespective of ‘an actual examination of the situation of each applicant’ (paragraph 48).
30      I am referring, by analogy, here to the criteria identified by the Court in its judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198), regarding the information on which national authorities must rely in order to judge the deficiencies in the prison system in a Member State. Those criteria seem to me to be relevant, a fortiori, to the question of assessment of the functioning of the civil-status services in a State.
31      Pursuant to Article 4(5)(c) of Directive 2011/95, ‘where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection, and where certain aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation when…the applicant’s statements are found to be coherent and plausible and [where] they do not run counter to available specific and general information relevant to the applicant’s case’ (emphasis added).
32      See Article 4(a) and (b) of Regulation 439/2010.
33      See references to this report in footnote 9 of this Opinion.