Unaccompanied asylum-seeking children are a vulnerable group of asylum seekers who arrive in the Member States to apply for international protection without their parents. In order to protect the rights of these children effectively, the Member States are under the obligation to appoint a legal guardian for them, to have adequate reception facilities that are suitable for children and to trace their family members in the country of origin or a transit country. Once it is determined that an unaccompanied child qualifies for international protection, the child has the right to be reunited with its parents. To make this possible, the Member States are under the positive obligation to allow the entry and residence of their parents. A legal question that was recently addressed by the Court of Justice of the European Union (‘the Court’) is at what specific moment it should be determined whether a right to family reunification exists. Is that the moment when the applicant made the application for international protection? Or the moment when the applicant applies for family reunification itself? This can make a big difference in cases in which the applicant was a minor at the time of lodging the asylum application, but has reached the age of majority at the time of applying for family reunification. Considering that an application for family reunification can only be lodged after the recognition of international protection, and that the asylum procedure can take a long time, the question about which moment it should be determined whether an applicant is eligible for family reunification becomes a highly relevant issue. On 12 April 2018, the Court delivered its ruling in the A.S. case concerning this question. In this blog, I will firstly discuss the position that was taken in the Netherlands before the ruling of the Court. Then I will analyse the ruling of the Court. After that I will discuss the implications of the ruling.

On 23 November 2015 – at a time when the number of asylum requests was relatively high – the Council of State held that unaccompanied children are eligible for the family reunification of their parents who were left behind in the country of origin if they were minors at the time when the application for family reunification was lodged. According to the Council of State, events occurring after the applicant applied for asylum must be taken into account in establishing whether a right to family reunification exists. The example provided by the Council of State was that if the parent(s) of an unaccompanied asylum-seeking child arrived in the Netherlands, the child could no longer be considered ‘unaccompanied’. Therefore, according to the Council of State, also reaching the age of majority must be considered as a relevant factor. The Council of State did not find it necessary to refer questions for preliminary ruling to the Court.

The relevance of this legal question becomes apparent when analysing the composition of the population of unaccompanied minors. In 2016, 63.300 unaccompanied asylum-seeking children were registered as asylum seekers in EU Member States. Sixty-eight percent of these children were sixteen or seventeen years old at the time of their asylum application. According to the EU Asylum Procedures Directive, a Member State must make a decision on an asylum application within six months, but this period may be extended with a period of nine months for instance in case of a large number of simultaneous applications. This means that an asylum procedure can take up to fifteen months. In the case of an unaccompanied asylum-seeking child older than sixteen, this could result in the final decision being delayed until after their eighteenth birthday. If the Member States were allowed to set the moment for determining eligibility for family reunification at the moment of the application for family reunification, this would mean that a significant number of unaccompanied asylum-seeking children would no longer qualify for reunification with their parents. This would make the eighteenth birthday a rather depressive event for asylum applicants whose application is still being considered.

As the legal question concerning eligibility for family reunification is essentially an interpretation of the EU Family Reunification Directive, the District Court of Amsterdam submitted preliminary questions on the interpretation of EU law to the Court on 26 October 2016. The District Court explicitly states in its reference that it questions the correctness of the interpretation of the Council of State. The Court agrees with this assessment of the District Court. According to the Court, the date on which it must be determined whether a right of family reunification exists is purely a matter of EU law. The EU Family Reunification Directive does not allow for any discretion to the Member States in this regard (para. 40-45). The Court establishes that the right to family reunification of unaccompanied children may not be made dependent on the moment at which the Member States adopt the decision to recognise the applicant as a refugee (para 55). Any other reading would lead to arbitrariness as the Member States could influence the eligibility for family reunification by making political choices affecting the length of the asylum procedure (para 56). This would lead to a lack of foreseeability on the question whether a right to family reunification exists (para 59-60). The Court establishes that the relevant moment in time to decide whether an unaccompanied asylum-seeking child is eligible for family reunification is the moment when the child applies for international protection (para 62).

The judgment of the Court was welcomed with enthusiasm. Peers concludes in his blog that this judgment means that from now on, the family members of unaccompanied refugees have a safe passage in the sense that they will no longer be forced to undertake dangerous travel routes by themselves, but that they instead will be allowed to enter lawfully for the purpose of family reunification. This, Peers argues, could literally save the lives of parents. In the Dutch newspaper NRC, Stronks welcomes the judgment and wonders whether we really needed the Court to establish that lengthy asylum procedures may not lead to a refusal of family reunification. As the case concerns domestic practice in the Netherlands, the Netherlands must from now on use the moment that the child lodged the asylum claim when determining eligibility for family reunification. As in recent years an incorrect interpretation of EU law was followed by the Dutch authorities, applicants who were unlawfully denied family reunification in the past will probably ask for a revision of the decision. The judgment will also have implications for other Member States. Like in the Netherlands, in Germany family reunification was only allowed if the applicant was still a minor at the time of the application for family reunification. That policy must be reconsidered as well.

Considering all these reflections and implications, I wonder whether in the long run the best interests of the child are actually served with this ruling by the Court. I do believe the reasoning of the Court is a correct reflection on the text and spirit of the EU Family Reunification Directive and the judgment fits in nicely with previous case law of the Court on this Directive. The argument that family reunification of unaccompanied children should not be made dependent on the efforts of the Member States to deal with an application for international protection in an expeditious manner is fully convincing to me. However, I do believe that the arrival of unaccompanied asylum-seeking children in the EU Member States while their parents are still in the country of origin should be regarded as an undesirable side effect of the legal protection of unaccompanied children. It goes without saying that unaccompanied children require extensive legal protection because they are in a particularly vulnerable position. However, the extent of the legal protection – especially regarding family reunion of parents and other family members – offers an incentive for parents to send their children to an EU Member State, with the objective of joining that child afterwards. In a legal landscape in which there are hardly any legal channels to apply for international protection in the EU, I can understand why a parent would make the terrible and heart-breaking decision to stimulate a child to make the hazardous journey to an EU Member State in order to find protection. But the legal framework in the EU should in some manner prevent children from being sent forward. In the reasoning of the Court this argument is ignored, and I can understand why. However I do believe that this is a pressing issue that should be addressed in order to fully protect the best interests of the child. The best interests should be a primary consideration, not only in individual decisions, but also in the design of the legal protection of unaccompanied minors in general. The prevention of the separation of parents and children in countries of origin should be taken seriously. The regulation on the family reunification of unaccompanied refugee children cannot solve this issue, but the Court could have at least addressed this in its judgment.