CJEU: Opinion AG Bot in Case C-550/16 A. and S., 26 October 2017

Date: 
Thursday, October 26, 2017

On 26 October 2017, Advocate General Bot published his Opinion in case C-550/16 A. and S., which concerned the right to family reunification of children who reach the age of majority after lodging an application for international protection and before requesting reunification with their family.

The main proceedings concern an Eritrean child who applied for asylum in the Netherlands at the age of 17. She was granted asylum in the Netherlands at the age of 18 and received a residence permit retroactively dated from the moment of her asylum application. She requested to be reunited with her family, but had this request rejected by the Immigration Service (IND) on the basis that she was no longer a minor at the moment of her application for family reunification, which the IND argued should be the decisive date when establishing if she was a minor. The District Court (Rechtbank Den Haag) sought the CJEU’s clarification on the decisive date to consider an applicant as an “unaccompanied minor” for the purposes of family reunification.

The Advocate General recalled that the right to respect for private and family life must be read in light of the obligation to take the best interests of the child as a primary consideration in all acts involving the child. AG Bot also reaffirmed that the right to family reunification should not be dependent on national authorities’ expedition to examine applications for international protection and that, as the CJEU affirmed in case C-338/13 Noorzia, the examination of a request for family reunification should depend primarily on circumstances attributable to the applicant, not to the administration.

AG Bot put forward that the CJEU should guarantee an enhanced protection to unaccompanied minors and young adults in order to address their vulnerability. It would be hard to conclude, he argued, that the dependency link between a child and his or her parents ceases to exist immediately after the attainment of the age of majority. The Advocate General concluded that ignoring the vulnerability of an unaccompanied child who arrived in Europe and reached the age of majority prior to the granting of international protection would run counter to the objectives of the Family Reunification Directive. In that sense, Member States should not dispose of a margin of appreciation when deciding on a request for family reunification by an unaccompanied minor, even if he or she turned eighteen after lodging the application for international protection.

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



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Keywords: 
Best interest of the child
Child Specific Considerations
Family member
Family reunification
Unaccompanied minor
Vulnerable person