SE's son was born on 20 April 1998, arrived in Germany in 2012, and applied for asylum.  On 13 May 2016, having the child reached the age of 18, the Federal Office for Migration and Refugees rejected his application for asylum and granted him subsidiary protection status. In January 2016, SE arrived in Germany, and in April 2016, he applied for international protection. The Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) rejected his application, finding that there were no grounds for prohibiting his deportation. The Administrative Court (Verwaltungsgericht) upheld SE's appeal, ordering the BAMF to grant SE subsidiary protection status, as SE was the parent of an unmarried child when he requested protection in Germany. The Federal Republic of Germany appealed the decision to the Federal Administrative Court (Bundesverwaltungsgericht). The Federal Administrative Court (referring court) noted that the wording of Article 2(j) of Directive 2011/95 (recast Qualification Directive (QD) does not allow to determine with certainty the date to which courts should refer to assess whether that beneficiary is a minor and, if so, whether the status of that minor's father as a family member, for the purposes of that provision, continues to exist even after that beneficiary has reached the age of majority. In such a context, the Federal Administrative Court stayed the proceedings and referred three questions to the Court of Justice of the European Union (CJEU).

The first and second questions were examined together, and they sought to determine, in essence, what the relevant date is to assess whether the beneficiary of international protection is a ‘minor', to decide on the application for international protection lodged by that applicant for asylum.

The CJEU acknowledged that Article 2(k) of the recast QD does not specify the time that must serve as the point of reference for assessing whether the requirement that the minor is below the age of 18 years is fulfilled, nor does the provision refer to the law of the Member States. The court noted that this situation did not entail that Member States were granted discretion on the question, and in accordance with the need for a uniform application of EU law and the principle of equality, a uniform and autonomous interpretation had to be given, considering the context of the provision and the objective sought by the legislation at issue.

The CJEU rejected the suggestion of the German Government that the date on which the competent authority of the Member State concerned decides on the asylum application submitted by the parent should be retained as the relevant date, given that in this case national authorities and courts would not be encouraged to prioritise the requests presented by the parents of minors thus not taking into account the vulnerability of the minors and could jeopardize the right to family life. Agreeing with the observations of Advocate General Hogan, the CJEU held that the relevant date for assessing whether the beneficiary of international protection is a “minor”, to rule on the asylum application lodged by his parent, is the date on which the parent submitted the request. The court held that such an interpretation is consistent with the purposes of the recast Qualification Directive and with fundamental rights. The court further noted that, where a distinction is made, in the national system, between an informal request and the submission of a request, in the event that the applicant informally submitted his application while his child was still a minor, such an applicant must, in principle, be considered as being at that date a member of the family of the beneficiary of subsidiary protection.

The third question asked whether the third indent of Article 2(j) read with Article 23(2) of the recast QD and Article 7 of the EU Charter, must be interpreted to mean that the concept of ‘family member' does not require an effective resumption of family life between the parent of the beneficiary of international protection and his or her child. The court also asked whether a parent must be regarded as a ‘family member' where the objective of entering the territory of the Member State concerned was not the effective exercise of parental responsibility to the child concerned for the purposes of Article 2(j) of the recast QD.

The CJEU highlighted that Article 2(j) makes the ‘family member' concept only dependent on three conditions, and thus the concept does not require an effective resumption of family life between the parent of the beneficiary of international protection and his or her child.

The fourth question asked whether Article 2(j) of the recast QD must be interpreted as meaning that a parent's status as a family member, for the purposes of that provision, ends when the child who is the beneficiary of subsidiary protection reaches the age of majority and, consequently, when parental responsibility for that child ceases. If the answer to that question is in the negative, the referring court further asks whether that parent's status as a family member and the rights attaching thereto continue indefinitely beyond the date on which the child concerned reaches the age of majority or whether those rights cease to exist at a certain point in time or under certain conditions.

The CJEU held that the granting of international protection to a parent as a ‘family member' of the beneficiary of subsidiary protection constitutes a right derived from the status conferred by subsidiary protection on his or her child, based on the maintenance of the family unity. Thus, the protection granted to such a parent cannot, immediately cease solely because the child benefiting from subsidiary protection reaches the age of majority or, in any event, cannot lead to the automatic withdrawal from the parent concerned of a residence permit which is still valid for a specified period. Thus, the court concluded such derived rights continue to exist after the beneficiary reaches the age of majority for the duration of the period of validity of the residence permit granted to them in accordance with Article 24(2) of the recast QD.