European Union: Court of Justice of the European Union

1. The Court of Justice has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation under national law. 2. Article 12(1) of Directive 2003/86 does not preclude national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules provided that that legislation: – lays down that such a ground of refusal cannot apply to situations in which particular circumstances render the late submission of the initial application objectively excusable; – lays down that the persons concerned are to be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively; and – ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in Articles 10 and 11 or in Article 12(2) of the directive.

7 November 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Family reunification | Countries: Netherlands

The second subparagraph of Article 46(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that subsidiary protection status, granted under legislation of a Member State such as that at issue in the main proceedings, does not offer the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical. Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

On 18 October, the Court of Justice of the European Union (CJEU) delivered its judgment on a preliminary reference submitted by the Slovenian Supreme Court, on the difference between refugee and subsidiary protection statuses. The need for a preliminary ruling arose in the context of asylum proceedings, where a minor national of Afghanistan was granted subsidiary protection status, following several unsuccessful legal challenges. When the issue was brought before the Supreme Court of Slovenia, the domestic judges decided to refer a question to the CJEU regarding the admissibility of the applicant’s appeal against his subsidiary protection status in the context of sufficient interest, according to Article 46 (2) of Directive 2013/32/EU. The question was centred on the difference in cessation and duration requirements of the two statuses, as well as the ancillary rights thereof. The Court first noted that the recitals of Directive 2011/95/EU indicate that EU legislators intended to establish an integral framework for all beneficiaries of international protection, save for objectively necessary exceptions for beneficiaries of subsidiary protection status. After analysing the content of Article 47 of the Charter of Fundamental Rights, the Court stated that this article sets a requirement for a restrictive interpretation of any exception from the right to an effective remedy before a court, such as the one introduced by the aforementioned article of Directive 2013/32/EU. As such, for a subsidiary protection beneficiary’s action to be deemed inadmissible due to lack of sufficient interest, the rights and benefits granted must indeed be the same as those the applicant would enjoy if they held refugee status, even if the difference only encompasses ancillary rights. Moreover, a difference between the duration of the two statuses has to be regarded as difference in rights and benefits that justifies an admissible legal challenge. Lastly, any relevant assessment on the existence of different rights and benefits for international protection beneficiaries should not depend on the appellant’s individual situation, but rather on an overall assessment of national legislation. According to the Court’s restrictive interpretation, this is dictated by the text of Article 46 (2), as well as the need for the predictability of this legal provision, which would vary unacceptably according to each applicant’s personal circumstances. ELENA Weekly Legal Update - 19 October 2018

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

This request for a preliminary ruling concerns the interpretation of Article 12(1) of Directive 2011/95/EU 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), and Article 35 and Article 46(3) of Directive 2013/32/EU 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 July 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 2011 Recast Qualification Directive (EU) | Topic(s): EU Qualification Directive - Effective remedy - Exclusion clauses - Palestinian | Countries: Bulgaria - Palestine, State of

(1) The Court has jurisdiction to answer the questions referred for a preliminary ruling by the referring court which relate to the interpretation of the provisions of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a case concerning the right of residence of a member of the family of a beneficiary of subsidiary protection status, where the provisions of that directive have been declared directly and unconditionally applicable to the beneficiaries of subsidiary protection status in national law. (2) The system provided for under Directive 2003/86 precludes a national provision, such as that at issue in the main proceedings, under which an application for family reunification on the basis of the more favourable provisions of Chapter V of that directive can be rejected for the sole reason that it was not submitted within the three-month period laid down in the third subparagraph of Article 12(1) of that directive, since that period cannot be regarded as a time bar and that application must be considered in the light of Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned, with a view to promoting family life and preventing both the objective and the effectiveness of Directive 2003/86 from being undermined. In addition, the failure to have regard to the guiding principles of that directive in the event of the rejection of an application for family reunification for the purposes of Article 12 thereof because the three-month period provided for in the third subparagraph of paragraph 1 of that article is exceeded cannot be justified by the fact that the examination of another application submitted under Article 7(1) of Directive 2003/86 would take account of those guiding principles.

27 June 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Family reunification - Right to family life | Countries: Netherlands

Article 26(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as precluding a Member State that has submitted, to another Member State which it considers to be responsible for the examination of an application for international protection pursuant to the criteria laid down by that regulation, a request to take charge of or take back a person referred to in Article 18(1) of that regulation from adopting a transfer decision and notifying it to that person before the requested Member State has given its explicit or implicit agreement to that request.

31 May 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 2013 Dublin III Regulation (EU) | Topic(s): Refugee status determination (RSD) / Asylum procedures | Countries: France - Germany - Iraq

interpretation of the second subparagraph of Article 27(2), Article 28(1) and Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

2 May 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Exclusion clauses - National security / Public order | Countries: Afghanistan - Belgium - Bosnia and Herzegovina - Croatia - Netherlands

interpretation of Articles 2(e) and 15(b) of Council Directive 2004/83/EC of 29 April 2004

24 April 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Complementary forms of protection - Mental health - Torture | Countries: Sri Lanka - United Kingdom of Great Britain and Northern Ireland

Article 2(f) of Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in conjunction with Article 10(3)(a) thereof, must be interpreted as meaning that a third-country national or stateless person who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must be regarded as a ‘minor’ for the purposes of that provision.

12 April 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Family reunification - Unaccompanied / Separated children | Countries: Eritrea - Netherlands