Luxembourg - Administrative Tribunal, 37507, 31 January 2017

Country of Decision:
Country of Applicant:
Date of Decision:
31-01-2017
Citation:
37507
Court Name:
Administrative Tribunal, Fourth Chamber
National / Other Legislative Provisions:
Luxembourg - o Law of 29 August 2008 : articles 12 (1) and d) and 13
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Headnote: 

Regarding family reunification, individuals can be considered as belonging to the same family if there is a clear economic dependency, not merely because they have biological ties. In order to establish this dependency, the judge may use both national and international sources. 

Facts: 

The applicant, a woman of Russian nationality, applied for a residence permit for private reasons, for family reunification, with the Luxembourg authorities. By letter of 09 November 2015, she was informed that her request had been rejected, which she then appealed. 

Decision & Reasoning: 

The tribunal stated that in order for the family reunification to be granted, there is one condition to fulfill: the member of the family (the one applying) should be in charge of the family member abroad and with whom the applicant would like to be reunited.

At this stage, the expression “in charge of” needs to be defined. The tribunal made a reference to the parliamentary preparation work (they themselves referred to CJEU jurisprudence). The tribunal found that an economically dependent person is a person that requires material support from the applicant, to the point where this support is the only way the individual is able to provide for their own basic necessities in the country of origin (p.11/13).

Regarding the correct moment in which to appreciate this dependency, the judge made a direct reference to CJEU case law in order to declare that the provision in question is aiming at preserving family unity. In that sense, the dependency must exist at the moment when the request is made to the Luxembourg authorities.

In reality, it is important to remark that the tribunal examined factually the relation of the dependency of the mother. In order to do so, the tribunal does not hesitate to compare the personal situation of the applicant with that of the general population, which is to be taken into account within the economical context of the country concerned (Russia), and especially, to be taken into account according to international sources, even though these are not expressly mentioned in the ruling. 

Outcome: 

Having found that the personal situation of the mother was beyond, without a doubt, in a situation of dependency, the tribunal found that the State had no other choice but to grant this request of family reunification.

 

Observations/Comments: 

Regarding the sources, it is important to note that the tribunal did not hesitate to take into account the considerations brought forth by the CJEU and to refer to international sources in order to better understand the situation regarding the country of residence of the applicant’s family member.

Regarding the notion of family, the judge provided for a larger interpretation of the notion as the tribunal did not limit itself to simply looking at biological links between the individuals concerned. This decisions shows that it is possible to unite two or more individuals based on the notion of economic dependency in order to grant family reunification. 

The original version of this summary was written by Passerell a.s.b.l. and a translation completed by Jessica Pradille.