A and S v Staatssecretaris van Veiligheid en Justitie.
Date: 2018-04-12
32


In that regard, recital 8 of that directive states that it provides more favourable conditions for refugees for the exercise of their right to family reunification, on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there.
41


It must be recalled that, in accordance with the need for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question (judgment of 26 July 2017, Ouhrami, C‑225/16, EU:C:2017:590, paragraph 38 and the case-law cited).
42


In that regard, it must be observed, first, that neither Article 2(f) nor Article 10(3)(a) of Directive 2003/86 contains any reference to the national law or to Member States, which is unlike other provisions in the same directive, such as Article 5(1) and Article 11(2), which suggests that, if the EU legislature had wished to leave to the discretion of each Member State the responsibility for determining the moment until which the person concerned must be a minor in order to benefit from the right to family reunification with his or her parents, it would have included such a reference in that context also.
44


Finally, Directive 2003/86 pursues not only, in a general way, the objective of promoting family reunification and granting protection to third-country nationals, in particular minors (see, to that effect, judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 69) but, by Article 10(3)(a) thereof, seeks specifically to guarantee an additional protection for those refugees who are unaccompanied minors.
45


In those circumstances, while Directive 2003/86 does not explicitly determine the moment until which a refugee must be a minor in order to be able to benefit from the right to family reunification referred to in Article 10(3)(a), it follows however from the objective of that provision, the fact that it confers no discretion on Member States and the lack of a reference to the national law in that regard, that the determination of that moment cannot be left to each Member State to assess.
47


Unlike Article 10(3)(a) of Directive 2003/86, Article 4(5) thereof is optional and, moreover, explicitly leaves to Member States a discretion for determining the minimum age of the sponsor and his or her spouse that they wish, as the case may be, to require for the legitimate aim of ensuring better integration and preventing forced marriages. Therefore, the disparities that follow from the fact that each Member State is free to define the date by reference to which the national authorities must assess whether the condition as to age is satisfied are perfectly reconcilable within the nature and purpose of Article 4(5) of Directive 2003/86, contrary to the position for Article 10(3)(a) thereof.
52


In that regard, it should first be recalled that refugee status must be granted to a person where he or she meets the minimum standards set by EU law. Pursuant to Article 13 of Directive 2011/95, Member States are to grant refugee status to all third country nationals or stateless persons who qualify as a refugee in accordance with Chapters II and III of that directive, without having any discretion in that respect (see, to that effect, judgment of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 63).
54


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.
60


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).
61


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.