On 20 December 2017, J and his minor sister, R (aged 15 at her arrival in Luxembourg), stateless persons from Syria, requested international protection in Luxembourg, a request allowed on 8 May 2018. In August 2018, R requested family reunification with her parents, D and M. The request was rejected on 8 November 2019, as R was not considered unaccompanied minor and could not provide evidence that her parents lacked support in the country of origin. On 8 November 2021 the Administrative tribunal rejected their appeal.

Upon appeal before the Administrative Court, it was noted that the main issue in the case was whether the minor R was an unaccompanied minor and thus exempted the conditions laid down in Article 70 (5) (a) of the Law of 29 August 2008 (showing that she has stable, regular and sufficient resources, accommodation and sickness insurance cover, or that the direct relatives in the ascending line are dependent on her and that they are deprived of the necessary family support in their country of origin) or whether she is to be regarded as an accompanied minor, in which case the conditions must be satisfied.

The court referred to the CJEU judgment of A and S (C-550/16), in which it was held that the date of lodging the application for international protection determines whether a refugee can be recognised as an unaccompanied minor. In addition, in certain cases, subsequent circumstances must also be taken into account, so that an unaccompanied minor at the time of entry, who is then taken into care by an adult responsible for him by law or custom will not be considered unaccompanied, whereas an initially accompanied minor, who is then left alone, is considered to be unaccompanied.

The court confirmed that the applicant R, although a minor, was no longer, on the date of the contested decision, to be classified as an unaccompanied minor within the meaning of Article 68(d) of the Law of 29 August 2008, as the judge responsible for guardianship appointed her brother as guardian, with the task of exercising parental authority over her.

However, the court also held that the Minister, although entitled to rely on the fact that R was no longer an unaccompanied minor at the time of the contested decision, did not take account of the particular circumstances of the case, namely the family life between the parties, the young age of R, her vulnerability as a refugee and the circumstances which led her to flee her country of origin and prevented her from leading a normal family life, and her psychological distress since her separation from her parents, so that the Minister disproportionately infringed her right to respect for private and family life (Article 8 of the ECHR) and disregarded the best interests of the child, protected by Article 24 of the Charter and Article 5 of the Family Reunification Directive.

The court referred the case back to the Minister for further assessment of the request for family reunification.