Article 24 - The rights of the child
Key facts of the case:
Reference for a preliminary ruling — Border control, asylum and immigration — Immigration policy — Right to family reunification — Concept of ‘unaccompanied minor’ — Right of a refugee to family reunification with his parents — Temporary residence permit — Refugee aged under 18 at the time of arrival and at the time of application for asylum and over 18 at the time of application for family reunification — Relevant date for assessing unaccompanied minor status.
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court reply as follows to the question referred for a preliminary ruling by the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands):
A third country national or stateless person under the age of 18 who arrives on the territory of a Member State unaccompanied by an adult responsible for him by law or custom, who applies for asylum, then, during the procedure, attains the age of majority before being granted asylum, with retroactive effect to the date of the application, and subsequently applies for family reunification as granted to unaccompanied minor refugees under Article 10(3) of Council Directive 2003/86/EC of 22 December 2003 on the right to family reunification, may be considered to be an unaccompanied minor, within the meaning of Article 2(f) of that directive.
6) Recitals 2, 4, 6 and 8 to 10 of that directive are worded as follows:
‘(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 [Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (‘the ECHR’),] and in the Charter of Fundamental Rights of the European Union. [ ( 3 )]
33) Indeed, in the particular circumstances of the present case, account should be taken of the lengthy processing of asylum claims and the inexorable passage of time which made the person concerned an adult on the day on which she was granted asylum and could, therefore, submit an application for her parents, one of whom was in Ethiopia and the other in Israel, to join her in the Netherlands in order to resume the family relationships and private life to which every third country national is entitled under Article 8 of the ECHR and Article 7 of the Charter, as interpreted both by the Court of Justice and by the European Court of Human Rights.
34) In that regard, recital 6 of Directive 2003/86 seeks to protect the family and to preserve family life. That means that that text is to be interpreted in accordance with Article 8 of the ECHR and Article 7 of the Charter, in a non-restrictive manner, so as not to deprive that directive of its effectiveness or disregard its objective, which is to promote family reunification.
36) It should also be recalled that, according to the Court’s case-law, the right to respect for private and family life guaranteed in Article 7 of the Charter must be read in conjunction with the obligation to have regard to the child’s best interests, which is recognised in Article 24(2) of the Charter. In accordance with the requirements of the latter provision, the Member States must make the best interests of the child a ‘paramount consideration’ when, acting through public or private authorities, they issue a legislative act relating to children. That requirement is expressly recalled in Article 5(5) of Directive 2003/86. Moreover, the Court has held that the Member States must ensure that the child can maintain on a regular basis a personal relationship with both parents.