EU Family Reunification of Children Becoming Adults
By Alexander Baron von Engelhardt, German Immigration Lawyer
It’s a truism that babies grow to little children, little children to young adults… Since visa applications from one’s home country will usually take too much time, it can easily happen that a youngster turns 18 — right in the middle of the application proceedings. Does this “child” now have to apply on their own merits as an adult, or does the application continue as a family reunion for adult family members? The European Court of Justice answered this question in its judgment of 16 July 2020.
Applications for the subsequent immigration of minors constantly rejected
In 2012, a refugee (recognized in Belgium) applied for residence permits for the purpose of family reunification for his three minor children who were still in their home country. These applications were rejected. In 2013, he submitted similar applications to the Belgian Embassy in Dakar, Senegal. The Belgian authorities again rejected the applications in 2014.
Children reached the age of majority
The children represented by their father decided to challenge the rejections. The Belgian court declared the lawsuits inadmissible at the end of January 2018 for lack of a valid interest in legal protection. According to national law, legal protection is admissible when the merits are valid at the time the action is brought and must continue throughout the whole proceeding. In this case, in the meantime the children had reached the age of majority on the day of the pronouncement of the court decision and thus no longer fulfilled the requirements laid down in the provisions governing family reunification for minors. The parties appealed to the ECJ.
ECJ: date of application decisive for determination of minority status
According to the ECJ, the point in time at which the application for entry and residence for the purpose of family reunification is submitted controls whether a child is a minor for this type of application. The point in time at which the competent authorities of the Member State decide on the application is irrelevant. This remains true in the reported case, where the overall process took several years.
Right of minors to family reunification would otherwise be jeopardized
The ECJ states that it would not be compatible with the objectives of Directive 2003/86/EC or with the requirements of the EU Charter of Fundamental Rights to set the age of the applicant on the date on which the competent authority decides on the application. This would not lead the competent national authorities and courts to give priority to the actions of minors with the urgency necessary to take account of their need for protection. They could therefore jeopardize the rights of these minors to family reunification.
Continued interest after reaching the age of majority due to possible action for damages
Moreover, rejecting an appeal as inadmissible cannot be based on a finding that the persons concerned no longer had an interest in obtaining a decision. A third-country national whose application for family reunification has been rejected could, even after he or she has reached the age of majority, continue to have an interest in a decision of the court on the merits of the case. In some Member States, such a court decision is necessary in order for the applicant to bring an action for damages against the Member State concerned.
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Alexander von Engelhardt specializes in legal services for immigration, the migration of foreign investors and professionals as well as for companies wanting to expand their business to Germany.
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