Luxembourg - Administrative Tribunal, 20 January 2017, n° 38741 du rôle

Three points need to be developed with regards to the reasoning of the court: the notion of “written” according to Art. 10 of the Regulation, the qualification of “family members” (article 2-g of the Regulation) and the question of the violation of Art. 17 of the Regulation.

First, regarding the “written” requirement, the 4th Chamber found that it must be produced by “all those concerned”. Indeed, the Court found that because the term is not defined within the Regulation, it concluded that “written” encompasses all that is clearly labelled.  Second, arguing that it is impossible for all those concerned to designate all the family members, the court found that the fact that the applicant (and all international protection applicants for that matter) had not made a written request in the sense of Art. 10 of the Regulation, should not result in the non-application of this provision.

Regarding Art. 2 g) of the Regulation, the tribunal tried to determine whether two engaged individuals could constitute members of the same family. The tribunal noted that the Regulation does state that the family should already exist in the country of origin. In this instance, the individuals met and got engaged in the Netherlands, while their country of origin is Iran. As such, they do not fulfil the condition set forth in Art. 2 g) of the Regulation.

Finally, the court found that the sovereignty clause (Art. 17 of the Regulation) conferred onto the State a discretionary and non-absolute power; it can use it within the frame of the law. Indeed, the tribunal insisted on rendering the arbitrary character of this clause preventative, as it is conditioned by the national judge (administrative in this case). As such, the fact that the State hasn’t used this yet does not constitute an error on its part. In other words, the administrative tribunal made this sovereignty clause a power that is at the disposal of the State.

One interesting aspect of the decision is that the court mentioned the pregnancy of the applicant which the Ministry would not have known about at the time of its decision to transfer the applicant to Germany. On this point, the tribunal declared that the examination of a manifest error in appreciation can only be conducted within the context in which the decision was first taken by the Minister. Consequently, the tribunal does not recognise full judicial power in itself.