C-768/19: AG Hogan gives opinion on the point at which a person’s ‘minor’ status is assessed in order to determine whether that minor and another person are ‘family members’

Thursday, March 25, 2021

On 25 March 2021, AG Hogan published an opinion in Bundesrepublik Deutschland v SE (C‑768/19). The request for preliminary ruling arises in proceedings between S.E and the Federal Republic of Germany concerning the refusal by the latter to grant SE subsidiary protection as the parent of an unmarried minor who is a beneficiary of subsidiary protection in Germany. The CJEU is asked to determine, inter alia, what point in time is to be taken into account for the purpose of assessing whether the person eligible for protection is a ‘minor’ within the meaning of the third indent of Article 2(j) of the Qualification Directive (2011/95).

AG Hogan first analysed the CJEU’s judgments in A and S (C‑550/16) and B.M.M. (C‑133/19, C‑136/19 and C‑137/19) and outlined their application to the present case. He recalled that the caselaw highlighted the need for a uniform application of EU law and the principle of equality. In his view, Article 2(j) of the Qualification Directive must be read in light of Article 23 and recital 16 of that directive. The former stipulates in very clear, unequivocal language that ‘Member States shall ensure that family unity can be maintained’ and the latter states that the Qualification Directive respects the fundamental rights and the principles recognised by the Charter including inter alia Article 7 and Article 24 of the Charter. In that regard, AG Hogan suggested that Article 2(j) must be interpreted in the interests of the child concerned and with a view to promoting family life.

Moreover, AG Hogan opined that according to the caselaw, irrespective of whether the recognition of subsidiary protection status under the Qualification Directive is a declaratory act or not, the CJEU did not envisage that an applicant’s right to family life should be made dependent on the speed and length of a national application and decision-making process, that is entirely out of their control. As such, AG Hogan considered that the relevant point in time for assessing the ‘minor status’ of SE’s son is the date on which SE applied for international protection, provided that SE’s son had applied for international protection as a minor and provided that both family members were present in the state prior to SE’s son reaching age of majority. AG Hogan also stipulated that the material point in time is the date on which the request for asylum is made rather than the date on which the asylum application is formally lodged. As SE’s asylum application was made while his son was still a minor, it follows that SE was a family member for the purposes of Article 2(j) of the Qualification Directive.

AG Hogan also opined that inter alia the rights of family members pursuant to the third indent of Article 2(j) and Article 23(2) of the Qualification Directive do not persist for an unlimited period of time. Nevertheless, he suggested that the right of family members to claim the benefits referred to in Articles 24 to 35 of the Qualification Directive persist after the beneficiary of subsidiary protection reaches the age of majority, for the duration of the period of validity of the residence permit granted to them.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Family unity (right to)
Unaccompanied minor