SW, BL and BC, Syrian nationals, have requested the issuance of a national visa in Germany on family reunification grounds because their sons have obtained refugee status in Germany. Their request was rejected by the German Embassy in Beirut because the sons of SW and BL and BC have reached the age of majority at the time of deciding on the request for visa on family reunification grounds.  By judgement of 1 February 2019 and 30 January 2019, the Administrative Court of Berlin ordered the Federal Republic of Germany to issue to SW and to BL and BC, respectively, national visas for the purpose of family reunification, pursuant to the second sentence of Paragraph 6(3), in conjunction with Paragraph 36(1) of the Act on the Residence, Employment and Integration of Foreigners in the Federal republic of Germany, their sons had to be considered minors, in accordance with CJEU case law, respectively the judgment of 12 April 2018  A. and S. (Eritrea) v Secretary of State for Security and Justice.

The Federal Republic of Germany lodged an appeal on a point of law against the judgments of the before the Federal Administrative Court arguing an infringement of Paragraph 36(1) of the Residence Act   and claiming that on the relevant date of the decision of the last court ruling on the substance, SW’s son and BL and BC’s son were not minor refugees. The Federal Republic of Germany argued that the A and S judgement cannot be applied, since, in the case which gave rise to that judgment, a final decision had been taken only as regards compliance with the requirement that the refugee concerned was a minor, as referred to in Article 10(3)(a) of Directive 2003/86, read in conjunction with Article 2(f) thereof. The Federal republic of Germany claimed that in that case, no ruling was made on whether an entry and residence visa must be granted to the parents of a refugee who has attained the age of majority where, under national law, they do not enjoy a right of residence independent of the minor refugee and must leave the territory of the Member State concerned immediately. The Federal Administrative Court stayed the procedure and referred question to the CJEU on interpretation of the Directive 2003/86. The referring court, based on national law, considered that SW, and BL and BC, were not entitled to the issue of a visa for the purpose of family reunification with their respective sons.

The CJEU stated in the Joined cases C-273/20 et C-355/20, that the main objective pursued by the Directive 2003/86 on the right to family reunification is to favour the family reunification and also to offer a protection to third country nationals, especially to minors. The Court reminded that this Directive has to be interpreted and applied in the light of the right to respect for family and private life, also with the obligation to respect and take into consideration the best interest of the child.

The Court first considered that it is contrary to the objectives of the Directive on the right to family reunification and to the EU Charter to take into account the date when the competent authority of the Member State concerned rules on the request to entry and residence on the territory of that State with the purposes of family reunification as the date to which one has to refer to determine the age of the applicant or of the sponsor in order to allow the family reunification.

The CJEU ruled that: “Article 16(1)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, in the case of family reunification of parents with an unaccompanied minor refugee, pursuant to Article 10(3)(a) of that directive, read in conjunction with Article 2(f) thereof, the fact that that refugee is still a minor on the date of the decision on the application for entry and residence for the purpose of family reunification submitted by the sponsor’s parents does not constitute a ‘condition’, within the meaning of Article 16(1)(a), failure to comply with which allows the Member States to reject such an application. Furthermore, those provisions, read in the light of Article 13(2) of that directive, must be interpreted as precluding national legislation under which, in such a situation, the right of residence of the parents concerned comes to an end as soon as the child reaches the age of majority.

2. Article 16(1)(b) of Directive 2003/86 must be interpreted as meaning that, in order to find that there is a real family relationship, within the meaning of that provision, in the case of family reunification of a parent with a minor child who has been granted refugee status, where that child attained his or her majority before the decision on the application for entry and residence for the purpose of family reunification, submitted by that parent, was adopted, a first-degree relationship in the direct ascending line is not sufficient on its own. However, it is not necessary for the child sponsor and the parent concerned to cohabit in a single household or to live under the same roof in order for that parent to qualify for family reunification. Occasional visits, in so far as they are possible, and regular contact of any kind may be sufficient to consider that those persons are reconstructing personal and emotional relationships and to establish the existence of a real family relationship. Furthermore, nor can the child sponsor and the parent concerned be required to support each other financially."