Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
Reference for a preliminary ruling – Area of freedom, security and justice – Common asylum policy – Directive 2011/95/EU – Qualification for refugee status – Article 2(d) and (e) – Reasons for persecution – Article 10(1)(d) and (2) – ‘Membership of a particular social group’ – Article 4 – Individual assessment of the facts and circumstances – Directive 2013/32/EU – Article 10(3) – Requirements for the examination of applications for international protection – Article 24(2) of the Charter of Fundamental Rights of the European Union – Best interests of the child – Determination – Third-country nationals who are minors and who identify with the fundamental value of equality between women and men by reason of their stay in a Member State
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1. Article 10(1)(d) and (2) 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
must be interpreted as meaning that depending on the circumstances in the country of origin, women who are nationals of that country, including minors, who share as a common characteristic the fact that they genuinely come to identify with the fundamental value of equality between women and men during their stay in a Member State may be regarded as belonging to ‘a particular social group’, constituting a ‘reason for persecution’ capable of leading to the recognition of refugee status.
2. Article 24(2) of the Charter of Fundamental Rights of the European Union
must be interpreted as precluding the competent national authority from deciding upon an application for international protection submitted by a minor without having concretely determined the best interests of that minor in the context of an individual assessment.
65. As a preliminary point, it should be noted that, by the second part of the third question, the referring court asks, in essence, whether Article 24(2) of the Charter, read in conjunction with Article 51(1) thereof, must be interpreted as precluding a ‘national legal practice’ according to which the competent authority, in the context of an application for a residence permit ‘on ordinary grounds’, assesses the best interests of the child without ‘first concretely determining’ them.
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69. By the first part of its third question and by its fourth question, which it is appropriate to consider together, the referring court asks, in essence, whether Article 24(2) of the Charter must be interpreted as precluding the competent national authority from deciding upon an application for international protection submitted by a minor without first having concretely determined the best interests of that minor, in the context of an individual assessment.
72. That said, it should be borne in mind that Article 24 of the Charter, which, as is stated in recital 16 of Directive 2011/95, is one of the articles of the Charter the application of which is to be promoted by that directive, provides, in paragraph 2, that ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.
73. It follows from Article 24(2) of the Charter and Article 3(1) of the International Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, to which the explanations relating to Article 24 of the Charter expressly refer, that the best interests of the child must not only be taken into account in the substantive assessment of applications concerning children, but must also influence the decision-making process leading to that assessment, subject to specific procedural safeguards. As the United Nations Committee on the Rights of the Child has observed, the expression ‘best interests of the child’, within the meaning of Article 3(1), refers to a substantive right, an interpretative legal principle and a rule of procedure (see General comment No 14 (2013) of the Committee on the Rights of the Children on the right of the child to have his or her best interests taken as a primary consideration (Art. 3, para. 1) CRC/C/GC/14, paragraph 6).
74. Furthermore, Article 24(1) of the Charter states that children may express their views freely, and that such views are to be taken into consideration on matters which concern them in accordance with their age and maturity.
80. In the absence of more specific provisions in Directive 2011/95 and Directive 2013/32, it is for the Member State to determine the detailed rules for assessing the child’s best interests in the procedure for international protection, in particular the stage(s) at which that assessment is to be made and the form it is to take, subject to compliance with Article 24 of the Charter and the provisions recalled in paragraphs 75 to 79 above.
81. In that regard, it must be stated, first, that, pursuant to Article 51(1) of the Charter, Member States are to promote the application of Article 24(2) of the Charter when they are implementing Union law and therefore also when they are examining a ‘subsequent application’, within the meaning of Article 2(q) of Directive 2013/32. Second, since Article 40(2) of that directive does not draw any distinction between a first application for international protection and a ‘subsequent application’ as regards the nature of the elements or findings capable of demonstrating that the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95, the assessment of the facts and circumstances in support of those applications must, in both cases, be carried out in accordance with Article 4 of Directive 2011/95 (judgment of 10 June 2021, Staatssecretaris van Justitie en Veiligheid (New elements or findings), C‑921/19, EU:C:2021:478, paragraph 40).
83. However, a long stay in a Member State, especially where it coincides with a period during which an applicant who is a minor has formed his or her identity, may, under Article 4(3) of that directive, read in the light of Article 24(2) of the Charter, be taken into account for the purpose of assessing an application for international protection based on a reason for persecution such as ‘membership of a particular social group’, within the meaning of Article 10(1)(d) of that directive.
84. For the reasons set out above, the answer to the first part of the third question and to the fourth question is that Article 24(2) of the Charter must be interpreted as precluding the competent national authority from deciding upon an application for international protection submitted by a minor without having concretely determined the best interests of that minor in the context of an individual assessment.
85. By its fifth question, the referring court asks, in essence, whether Article 7 of the Charter, read in conjunction with Article 24(2) thereof, must be interpreted as precluding a ‘national legal practice’ which allows ‘ordinary grounds’ to be taken into consideration when examining a first application for international protection, but not when examining a ‘subsequent application’, within the meaning of Article 2(q) of Directive 2013/32.
