The Netherlands: Cohabitation is not a requirement for family reunification of refugees

Date: 
Monday, February 20, 2017

On 20 February 2017 the Council of State of the Netherlands has judged that cohabitation is not a requirement to apply Chapter V of the Family Reunification Directive (family reunification of refugees).
 
The applicant and his wife, both of Palestinian origin, met in Lebanon in 2009 and were married through a long distance ceremony in 2013. The applicant, coming from Lebanon, was residing in Belgium at the time of the marriage, while his wife was residing in Syria. In 2014, the wife received refugee status in the Netherlands. The couple saw each other again in Belgium in 2015. The applicant requested to join his wife in the Netherlands, but according to the Secretary of State Article 9(2) of the Family Reunification Directive could be interpreted as meaning that the spouse of a recognised refugee can only get derivative refugee status if they actually lived together before the flight of the sponsor.

On appeal, the Council of State holds that the Family Reunification Directive does not allow a Member State to require that the applicant and the sponsor actually lived together. Article 9(2) requires that family members must have belonged to the family of the refugee at the time of entry of the refugee. In order to determine the meaning and scope of this provision of EU law, the wording of the provision as well as the objectives of the system of which it is part should be taken into account. According to the Council of State it cannot be deduced from the definition of “family reunification” in Article 2 of the Family Reunification Directive that the couple must actually have lived together in order to qualify for family reunification. Article 11(2) in conjunction with Article 9(2) of the Family Reunification Directive requires that a valid marriage prior to entry into the Netherlands exists in accordance with Dutch international private law. According to settled case-law of the CJEU (see for example case C-578/08 Chakroun of 4 March 2010, para. 43), Member States cannot use their margin of appreciation, in this case the discretion to refuse applying the more favourable provisions of Chapter V in the case of family reunion where family ties existed before the sponsor entered the Netherlands, in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof. In this regard, the Department also refers to paragraph 8 of the preamble of the Family Reunification Directive which states that the situation of refugees requires special attention and therefore more favourable conditions for the exercise of their right to family reunification have been created. This means that setting stricter conditions for family reunification in such a case is not allowed.

As the Secretary of State has expressed during the hearing that it is not in dispute that the applicant and the sponsor were married before they entered the Netherlands, and thus there is a legal family relationship, the Council of State decides that the conditions under Chapter V of the Family reunification Directive have been fulfilled. The appeal by the applicant is allowed.

Based on an unofficial translation by the ELENA Weekly Legal Update.



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Keywords: 
Family member
Family reunification
Family unity (right to)