Op-Ed: “Protection of family unity and the common European asylum system” by Alessia di Pascale and Bruno Nascimbene
As Advocate General (AG) Pikamäe reminds us in the opening words of his Opinion in XXXX v Commissaire général aux réfugiés et aux apatrides (C-483/20), delivered a few days ago, ‘migration routes are often the result of a combination of two elements: chance and necessity’. So what happens if family members (spouses, parents and children) separate on their way to Europe, arriving by different routes, and obtain protection (with the recognition of different statuses) in different EU Member States, each meeting the requirements for access to protection? Can chance or necessity affect their position and the conditions for their reunion under EU law?
These are the questions raised by the appeal brought before the Belgian Conseil d’Etat, and addressed by it to the Court of Justice, in the context of a preliminary reference introduced in 2020. The case in the main proceedings concerns a Syrian national, who had been granted refugee status in 2015 in Austria, while his daughters, one of whom was a minor, had arrived separately in Belgium and had been granted subsidiary protection status there. Their father had joined them and they had rebuilt a genuine family life by living together. However, finding himself in an irregular situation in Belgium, he had reapplied for international protection in 2018, but, in February 2019, the Belgian authority responsible for recognising international protection had rejected his application as inadmissible on the grounds that the applicant already benefited from a form of protection in another Member State. Indeed, according to Article 33(2)(a) of Directive 2013/32, Member States may declare an application for international protection inadmissible, and not examine it, where, as in the present case, another Member State has granted protection. It must therefore be asked whether this provision entails the inevitable rejection, even automatical, of the application.
The reasoning of AG Pikamäe starts from an analysis of the mechanism provided for in Article 33(2)(a) of Directive 2013/32. This provision, interpreted systematically and teleologically, appears to be aimed at satisfying the general principle of procedural economy, closely linked to the objective of speeding up the conduct of proceedings, as well as at preventing the so-called ‘secondary movements’ (Opinion, points 16-20). However, starting from the literal content of the provision, AG Pikamäe points out that the inadmissibility mechanism represents, on the one hand, a mere option offered to Member States (‘Member States may consider’ an application for international protection inadmissible) and not an obligation, and, on the other hand, also a derogation from the obligation of Member States to examine all applications on the merits according to the rules laid down by the Asylum Procedures Directive. Moreover, this mechanism does not exclude the obligation for Member States to recognise the possibility of a personal interview before a decision on the application is taken (Article 14(1) of Directive 2013/32). This provision also applies to decisions on admissibility, except only in the case of a subsequent application.
The Court of Justice itself has already admitted an exception to the inadmissibility mechanism, in cases where the applicant has been granted a form of international protection by another Member State, if the foreseeable living conditions in which that applicant would find himself as a beneficiary of such protection in that other Member State would expose him to a serious risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 CFREU (Ibrahim and Others, Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17, paragraph 101, and Hamed and Omar, Joined Cases C-540/17 and C-541/17, paragraph 43).
Given, therefore, that the provision in Article 33 must be interpreted as optional, could the same exception highlighted by the Court also apply where there is a risk of an infringement of the applicant’s fundamental rights relating to the protection of family life? As AG Pikamäe notes, Directive 2011/95 seeks to ensure full respect for human dignity and the right to asylum of ‘asylum seekers and their accompanying family members’ (Recital 16) and expressly requires States to ensure the preservation of the family unit. ‘While the protection of family life, provided for in Article 7 of the Charter, is not one of the main objectives of that directive, it should be recalled that, according to settled case law, that Article must be read in conjunction with the obligation to have regard to the child’s best interests, recognised in Article 24(2) of the Charter, and with account being taken of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with his or her parents. Recital 33 of Directive 2013/32 clearly states that the best interests of the child must be a primary consideration of Member States when applying the directive, in accordance with the Charter and the UN Convention on the Rights of the Child of 1989, and this is reflected in an express and general obligation laid down in Article 25(6) of the directive. In assessing the best interest of the child, Member States must in particular take due account of the minor’s well-being and social development, including his or her background’ (Opinion, points 31-32). The AG therefore concludes that, if the applicant for international protection were to be exposed, in the event of him being returned to the Member State which initially granted him refugee status or the benefit of subsidiary protection, to a serious risk of being subjected to treatment contrary to Article 7 of the Charter, in conjunction with Articles 18 and 24 thereof, the Member State with which the new application was lodged could not rely on its inadmissibility. And the assessment of such a risk can only be made after giving the applicant the opportunity to present, in the course of a personal interview, all appropriate elements to confirm its existence.
Excluding automatic rejection, the question arises as to what status (and therefore what permit) the family member could be granted. In the opinion of the Belgian Government, which, together with the Italian Government, submitted observations, no international protection status could be granted to the person concerned following an application whose sole purpose was to ensure family reunification, since Directives 2011/95 and 2013/32, even when read in the light of Articles 7, 18 and 24 of the Charter, do not require a Member State to grant international protection in a situation such as that of the applicant in the main proceedings. The right to respect for family life and the best interests of the child are, moreover, guaranteed by legal instruments appropriate to the circumstances of the present case, namely Article 23 of Directive 2011/95 and Directive 2003/86, the implementation of which would make it possible to offer an appropriate status to the applicant in the main proceedings.
However, the present case clearly shows the limits of the current rules. As regards Directive 2011/95, the application of Article 23 of Directive 2011/95 (which extends the benefits of Articles 24 to 35 to family members) is subject to the fulfilment of three cumulative conditions. In particular, the family member within the meaning of Article 2 (j) must be in the same Member State in connection with the application for international protection (unclear expression, but presumably referring to family members who have been accompanying the beneficiary of international protection from the country of origin to the host Member State) and must not individually fulfil the necessary conditions to obtain international protection. AG Pikamäe therefore concludes that the latter provision cannot guarantee the applicant in the main proceedings (who clearly satisfies the conditions necessary to obtain international protection on his own and apparently did not come to the EU with his daughters) a solution for obtaining a residence permit enabling him to reside in the same Member State as his daughters and thus avoiding any risk of infringement of the fundamental right to respect for family life.
But even Directive 2003/86 does not seem to offer an adequate solution. First of all, the text continues to be marked by the critical issue of the application of the conditions, laid down in chapter V, only to the family reunification of ‘refugees’. Notwithstanding the evolution that has characterised the directive in question, AG Pikamäe recalls that the Court has recently reaffirmed the non-applicability of Directive 2003/86 to third-country nationals who are family members of a beneficiary of subsidiary protection status (K and B, C-380/17, paragraph 33, and E., C-635/17, paragraph 34). The application could be made in Austria by the father, as he holds refugee status there, but it could only concern the children who have reached the age of majority if they ‘cannot objectively meet their own needs on account of their state of health’, which in the present case would result in the separation of the family, only the minor daughter being able to join him. Moreover, if his daughters decided to apply for international protection in Austria, they would presumably encounter the same ground of inadmissibility as their father’s application and, therefore, following the family reunification achieved under Directive 2003/86, they would have the status of members of the sponsor’s family, that is to say, from a legal point of view, ‘a situation of dependence on him which may last for several years before those daughters can acquire an autonomous residence permit’. Moreover, as AG Pikamäe points out, the set of rights reserved to family members on the basis of Directive 2003/86 and to persons enjoying international protection is not the same, the treatment of the latter being more favourable. To this finding must be added the foreseeable difficulties of adaptation connected with a new residence in another Member State, after many years in Belgium, and a break in the social and emotional ties established in that country (aspects to which the ECtHR’s case law on Article 8 has always paid great attention).
In conclusion, should a Member State be confronted with a situation which does not allow it to make use of the possibility to declare the application for international protection inadmissible (under Article 33(2)(a)), it would have to examine it and would thus be obliged to consider and treat the applicant as a ‘first applicant’ for international protection, irrespective of the protection already granted by another Member State. In case of recognition of protection in the second Member State, this would give rise to a dual recognition, not expressly provided for by Directives 2011/95 and 2013/32, but implicitly already accepted by the Court in the aforementioned case law on this provision. If, on the other hand, the person concerned was motivated only by a need for family reunification and not for international protection, in the absence of any allegation of a risk of persecution or serious threats, the application for international protection would have to be rejected, since Directive 2011/95 does not provide for an extension of refugee status or subsidiary protection status to family members of the person to whom such status is granted, similarly to the case of a rejection on the merits, due to a different assessment of the existence of protection needs (not impossible because of the differences between Member States). In case of rejection, the unsuccessful individual will be able to enjoy the benefits provided for in Articles 24 to 35 of Directive 2011/95, in accordance with Article 23 thereof.
The case raises some particularly relevant issues with regard to the functioning of the European asylum system, which is increasingly dominated by the concern to effectively counter the so-called secondary movements. A system in which even the right to family unity appears to be constrained by the responsibility criteria defined by the Dublin Regulation, but also by the non-recognition of positive decisions on international protection and by the impossibility (at least until the long-term resident status is granted) to move to a Member State other than the one that examined the application. This is an extremely topical issue, also with regard to the debate surrounding the complex revision of the Dublin III regulation and the possibility of mitigating a competence rigidly anchored on objective elements. The AG’s arguments, guided by the concern to ensure the full implementation of the right to family unity and the best interests of the child, have the merit of making an overall analysis of the current legislation and highlighting its limitations. They provide useful food for thought on the undoubted shortcomings of the system, on which it is to be hoped that the Court of Justice will provide the necessary interpretative clarifications.
Alessia di Pascale is Associate Professor of EU Law at the University of Milan.
Bruno Nascimbene is Emeritus Professor of EU Law and former Professor of International Law at the University of Milan.