Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
Request for a preliminary ruling from the Tribunal de première instance francophone de Bruxelles.
Reference for a preliminary ruling – Urgent preliminary ruling procedure – Border controls, asylum and immigration – Immigration policy – Directive 2003/86/EC – Right to family reunification – Article 5(1) – Submission of an application for entry and residence for the purposes of exercising the right to family reunification – Legislation of a Member State requiring a sponsor’s family members to submit the application in person to the competent diplomatic post of that Member State – Impossibility or excessive difficulty to reach that post – Charter of Fundamental Rights of the European Union – Articles 7 and 24.
Outcome of the case:
On those grounds, the Court (Third Chamber) hereby rules:
Article 5(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that it precludes national legislation which requires, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members, in particular those of a recognised refugee, appear in person at the diplomatic or consular post of a Member State competent in respect of the place of their temporary or permanent residence abroad, including in a situation where it is impossible or excessively difficult for them to travel to that post, without prejudice to the possibility for that Member State to require that those members appear in person at a later stage of the application procedure for family reunification.
1) This request for a preliminary ruling concerns the interpretation of Article 5(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), Articles 23 and 24 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), and Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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3) Recitals 2 and 8 of Directive 2003/86 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 European Convention [for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950,] and by the [Charter].
20) The referring court observes that, in so far as Article 5(1) of Directive 2003/86 leaves it to the Member States to determine who, of the sponsor or family members, may submit the application for family reunification, the choice made by the Belgian legislature seems, in principle, to be in accordance with that provision. In the present case, however, that choice amounts to denying the sponsor’s spouse and minor children any possibility of submitting an application for family reunification. It is therefore necessary to examine whether, in such a situation, the refusal to allow that spouse and those children to submit such an application in Belgium undermines the practical effect of that directive or infringes the fundamental rights which that directive is intended to protect, namely the right to respect for private and family life guaranteed by Article 7 of the Charter, and the right to have the best interest of the child taken into account, and also the right of the child to maintain on a regular basis a personal relationship with both his or her parents, enshrined in Article 24 of the Charter.
22) In those circumstances, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-Speaking)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is the legislation of a Member State which only allows family members of a recognised refugee to submit an application for entry and residence at a diplomatic post of that State, even in a situation where it is impossible for those family members to travel to that post, compatible with Article 5(1) of [Directive 2003/86], read, where appropriate, in conjunction with the objective pursued by that directive, to promote family reunification, Articles 23 and 24 of [Directive 2011/95], Articles 7 and 24 of the [Charter] and [with] the duty to ensure the effectiveness of EU law?’
38) In those circumstances, it must be considered that, by that question, the referring court asks, in essence, whether Article 5(1) of Directive 2003/86, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as meaning that it precludes national legislation which requires that, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members, in particular those of a recognised refugee, appear in person at the diplomatic or consular post of a Member State competent in respect of the place of their temporary or permanent residence abroad, including in a situation where it is impossible or excessively difficult for them to travel to that post.
44) In the second place, as is apparent from recital 2 of Directive 2003/86, that directive respects the fundamental rights and observes the principles enshrined in the Charter. Accordingly, the Member States must not only interpret their national law in a manner consistent with EU law but also make sure that they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union (judgment of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraphs 53 and 54 and the case-law cited).
45) In that regard, it should be observed that Article 7 of the Charter, which contains rights corresponding to those guaranteed by Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, expressly referred to in recital 2 of Directive 2003/86, recognises the right to respect for private and family life. That provision of the Charter must also be read in conjunction with Article 24(2) of the Charter, concerning the obligation to have regard to the child’s best interests, and with Article 24(3), concerning the need for a child to maintain on a regular basis a personal relationship with both his or her parents (judgment of 16 July 2020, État belge (Family reunification – Minor child), C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 34 and the case-law cited).
46) It follows that the provisions of Directive 2003/86 must be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter, as is apparent from recital 2 and Article 5(5) of that directive, which require the Member States to examine applications for family reunification in the interests of the children concerned and with a view to promoting family life (judgment of 16 July 2020, État belge (Family reunification – Minor child), C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577, paragraph 35 and the case-law cited).
48) It is by reference to all of the foregoing considerations that the Court must examine whether Article 5(1) of Directive 2003/86, read in the light of Article 7 and of Article 24(2) and (3) of the Charter, precludes a Member State from requiring the family members of the sponsor to appear in person at the competent diplomatic or consular post of that Member State at the time of submission of the application for family reunification even where, on account of their actual situation, that is impossible or excessively difficult.
55) Second, as observed in paragraph 44 of the present judgment, Directive 2003/86 recognises the fundamental rights and observes the principles enshrined in the Charter.
56) In that regard, it should be observed that a national provision that requires, without exception, that the sponsor’s family members appear in person in order to submit an application for family reunification, even where that is impossible or excessively difficult, infringes the right to respect for the family unit laid down in Article 7 of the Charter, read, where necessary, in conjunction with Article 24(2) and (3) of the Charter.
57) As the Advocate General observed in point 65 of his Opinion, such a requirement constitutes a disproportionate interference with the right to respect for family unity by reference to the undoubtedly legitimate aim, on which the Belgian Government relies, of combating fraud relating to family reunification, in breach of Article 52(1) of the Charter.
60) In the light of the foregoing reasons, the answer to the question referred should by that Article 5(1) of Directive 2003/86, read in conjunction with Article 7 and with Article 24(2) and (3) of the Charter, must be interpreted as meaning that it precludes national legislation which requires, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members, in particular those of a recognised refugee, appear in person at the diplomatic or consular post of a Member State competent in respect of the place of their temporary or permanent residence abroad, including in a situation where it is impossible or excessively difficult for them to travel to that post, without prejudice to the possibility for that Member State to require that those members appear in person at a later stage of the application procedure for family reunification.
