Article 24 - The rights of the child
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Immigration policy — Right to family reunification — Directive 2003/86/EC — Article 4(1) — Concept of a ‘minor child’ — Article 24(2) of the Charter of Fundamental Rights of the European Union — Best interests of the child — Article 47 of the Charter of Fundamental Rights — Right to an effective remedy — Children of the sponsor who have reached majority during the decision-making procedure or court proceedings against the decision refusing the family reunification application.
Outcome of the case:
For these reasons, therefore, I am of the view that the questions posed by the Conseil d’État (Counsil of State, Belgium) may conveniently be answered in one single response as follows:
Article 4 and Article 18 of Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union should be interpreted as meaning that a third country national who is below the age of 18 at the time of his or her request for family reunification in a Member State but who, in the course of the administrative procedure reviewing his or her request, or in the course of judicial proceedings subsequently challenging a refusal to grant family reunification attains his or her majority, should nonetheless be regarded as a ‘minor’ for the purposes of Article 4 of Directive 2003/86.
3)This is the backdrop to the present preliminary references which concern the interpretation of Directive 2003/86/EC and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In essence the question raised by those references is whether children who were still minors at the date of the introduction of their application for family reunification should continue to be treated as such for this purpose even if they later attain their majority during the course of the administrative proceedings ruling on their request (C‑137/19) or during subsequent judicial proceedings (C‑133/19 and C‑136/19).
6) The proceedings before the referring court in case C‑133/19 and C‑136/19 concern the question of whether Article 47 of the Charter and Article 18 of Directive 2003/86 must be interpreted as precluding an action for annulment brought against an administrative decision, refusing the right to family reunification of a minor child, from being declared inadmissible on the grounds that the child reached the age of majority during the proceedings, as he or she would be deprived of the possibility of appealing that decision, which would violate his or her right to an effective remedy.
9) Recitals 2, 4, 6 and 13 of Directive 2003/86 provide:
‘(2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union. …
28) In cases C-133/19 and C-136/19, the Conseil d’État (Council of State) submitted the following questions:
‘(1) In order to ensure the effectiveness of EU law and not to render it impossible to benefit from the right to family reunification which, in the [second] applicant’s submission, is conferred on her by Article 4 of [Council Directive 2003/86], must that provision be interpreted as meaning that the sponsor’s child may enjoy the right to family reunification when he attains his majority during the judicial proceedings against the decision which refuses him that right and which was taken when he was still a minor?
(2) Must Article 47 of the Charter of Fundamental Rights of the European Union and Article 18 of [Directive 2003/86] be interpreted as precluding an action for annulment, brought against the refusal of a right to family reunification of a minor child, being held to be inadmissible on the ground that the child has attained his majority during the judicial proceedings, since he would be deprived of the possibility of securing a determination of his action against that decision and there would be a breach of his right to an effective remedy?’
36) It is perhaps worth observing that among the reasons given by the Court for this conclusion was that:
‘Moreover, instead of prompting national authorities to treat applications for international protection from unaccompanied minors urgently in order to take account of their particular vulnerability, a possibility which is already explicitly offered by Article 31(7)(b) of Directive 2013/32, such an interpretation could have the opposite effect, frustrating the objective pursued both by that directive and by Directives 2003/86 and 2011/95 of ensuring that, in accordance with Article 24(2) of the Charter of Fundamental Rights, the best interests of the child is in practice a primary consideration for Member States in the application of those directives.
In addition, that interpretation would have the consequence of making it entirely unforeseeable for an unaccompanied minor who submitted an application for international protection to know whether he or she will be entitled to the right to family reunification with his or her parents, which might undermine legal certainty.’ ( 7 )
43) In addition, as the Court had previously stated in A and S, any other interpretation of the directive might help to contribute to a situation where national courts are not prompted to treat applications from vulnerable minors with the urgency which such appeals require and thus might thereby act in a manner which would jeopardise the legal entitlements to family reunification of these self-same minor applicants. ( 11 ) Such a state of affairs would be at odds with one of the objectives of Article 24(2) of the Charter, namely, that the best interests of the child ought in practice to be a primary consideration for Member States in the application of Directive 2003/86. Here I would also note that at the oral hearing held on 30 January 2020 the representative for the applicants stated without opposition in response to a question from a member of the Court that the Conseil du contentieux des étrangers (Council for Asylum and Immigration Proceedings) had informed them that their case was not considered to be a priority.
44) This general conclusion is further underscored by a consideration of the principles underlying the right to an effective remedy under Article 47 of the Charter. As both this Court ( 12 ) and its sister court, the European Court of Human Rights, ( 13 ) have stressed with regard to Article 47 of the Charter and Article 6, paragraph 1 and Article 13 of the European Convention of Human Rights respectively, the right to an effective remedy implies that national remedies must be effective and real, not merely illusory and theoretical. It follows in turn that these remedies must be coherent and not lead to arbitrary or indefensible consequences.
46) For these reasons, therefore, I am of the view that the questions posed by the Conseil d’État (Counsil of State, Belgium) may conveniently be answered in one single response as follows: