CJEU: AG Wahl delivers opinion in case C-635/17

Thursday, November 29, 2018

On 29 November, Advocate General Wahl delivered an opinion on family reunification and the standard of proof required upon assessment of family ties.

This case concerns an Eritrean national who resides with her daughter in the Netherlands. In 2015, the Dutch authorities granted her subsidiary protection status and a residence permit. After receiving this status, the applicant submitted an application to reunite with a minor Eritrean child. The applicant claimed that this minor is the son of her older sister and that he was placed under her authority since the death of his parents when he was 5 years old.

However, as the applicant did not provide official supporting documents attesting to the identity of the minor, the death of the parents and the guardianship, her application was denied. The applicant brought the case before the District Court of The Hague, claiming that the standard of proof required was contrary to Article 11 (2) of the Family Reunification Directive. The Court referred a question to the CJEU on the correct interpretation of that article.

First, the Advocate General points out that it is clear that the burden of proof lies first and foremost on the applicant. In cases where supportive documentation cannot be retrieved, a national authority is entitled to require the sponsor to provide a plausible explanation as to why they cannot provide official proof of family ties. Such a requirement for explanations, however, cannot disregard factual circumstances that may have contributed to the inability to produce documents or explain their absence. To do so, would amount to placing a disproportionate burden on applicants coming from countries with weak or inexistent registration frameworks.

Consequently, the national authority must also, on its side, carry out an appropriate examination of the explanations provided by the applicant. These explanations should be considered not only in view of relevant information, concerning the situation in the sponsor’s country of origin, but also of the particular situation of the sponsor and how this may affect the possibility of providing information.

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

This item was reproduced with the permission of ECRE from the weekly ELENA 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.   



Assessment of facts and circumstances
Family reunification