CJEU - C-519/18 TB, 12 December 2019

Article 10(2) of Directive 2003/86 allows Member States to define autonomously the nature of the relationship of dependence between the sponsor and the family member not referred in art. 4, as long as the national law have regard of all the relevant circumstances of the refugee’s situation through a case-by-case approach.

Facts:

In 2015, TB was granted refugee status by Hungarian authorities. Few months later, the sister applied for family reunification on the basis of Hungarian law No II of 2007 on the entry and stay of third country nationals. According to Article 19.4(b), “siblings and relatives of the sponsor or his or her spouse or of the person who was granted refugee status can obtain a residence permit for the purpose of family reunification if they are objectively unable to provide for their own needs on account of their state of health”.

The application was rejected considering that the sister had submitted incorrect information and had not demonstrated the medical condition requested by the law. The applicant appealed against the decision, arguing the incompatibility of the Hungarian law with art. 10(2) of Directive 2003/86, which submitted the right family reunification to other family members referred to in Article 4, only to the condition of dependency between the family member and the sponsor. In those circumstances the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary) decided to stay proceedings and to referred several preliminary questions to the Court of Justice.

Decision & Reasoning:

Firstly, the Court considered that Member States can freely decide to implement or not the more favourable conditions set out in Art. 10(2) of the Directive and, in doing so, their discretion is limited only by the respect of the requirement of dependence introduced by the provision itself. Since that article does not include any reference to national law in relation to the definition of dependence, the Court found necessary to reach an autonomous and uniform interpretation for all Member States. For this purpose, it took into account its existing jurisprudence on EU citizens’ family reunification that defined dependence as “the result of a factual situation characterized by the fact that material support for family member is provided by the holder of the right of residence”.

Moreover, Recital 8 of Directive 2003/86 requires Member States to pay special attention to the particular situation of refugees who, in the context of family reunification, might be unable or no longer able, to provide support to their families for reasons beyond their control. In that case, Member States must interpret the concept of dependence in the light of the fact the refugee appears, having regard to all circumstances, the family member most able to provide the material maintenance required.

Secondly, the Court found that the fact that a State decided to give application to the optional provision of Article 10(2) does not imply an automatic right of reunification to all family members as long as they are dependent on the refugee. In this sense, the voluntary nature of Art. 10(2) allows Member States to freely define the nature of the dependence as long as the implementation of the provision does not undermine the objective and the effectiveness of the Directive and keep in consideration the particular circumstances of the refugee through a case-by-case approach.

Thirdly, the directive must comply with the principle of proportionality and the rights established in the Charter of Fundamental Rights of the European Union. In that regard, the Court highlighted that the interpretation under the Charter cannot get to the point to deprive Member States of their discretion in relation to art. 10(2), although the right to respect of family life remains a cornerstone in the interpretation of the dispositions on the topic. Lastly, in relation to the interpretation of Art. 4(2) and (3) of Directive 2003/86, the Court found that the use by the Hungarian law of the same language for the implementation of Art. 10(2) is not sufficient reason to justify a request of interpretation of those provisions.

Outcome:

Article 10(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as not precluding a Member State from authorising the family reunification of a refugee’s sister only if she is, on account of her state of health, unable to provide for her own needs, provided that:

– first, that inability is assessed having regard to the special situation of refugees and at the end of a case-by-case examination taking into account all the relevant factors, and

– secondly, that it may be ascertained, having regard to the special situation of refugees and at the end of a case-by-case examination, taking into account all the relevant factors, that the material support of the person concerned is actually provided by the refugee, or that the refugee appears as the family member most able to provide the material support required.

Case Law Cited:

CJEU - C-720/17 Bilali, 23 May 2019

CJEU - C‑246/17, Diallo

CJEU - Case C-550/16 A and S, 12 April 2018

CJEU - C-558/14, Khachab

CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland

CJEU - C-578/08, Rhimou Chakroun v Minister van Buitenlandse Zaken

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