XC, Syrian national living in Turkey and who reached majority age on 1 January 2017, has requested a national visa for the purposes of family reunification with her father who has obtained refugee status in Germany in July 2017. In fact, she applied on 10 August 2017 to the General Consulate of the Federal Republic of Germany in Istanbul (Turkey) for a national visa for the purpose of family reunification with her father living in Germany. Her request was rejected because the conditions of the Residence Act were allegedly not met since she has reached the age of majority. An Administrative Court in Germany ordered, by decision of 12 March 2019, the Federal Republic of Germany to issue XC with a visa for the purpose of family reunification. The Administrative Court relied on the CJEU judgment of 12 April 2018 A. and S. (Eritrea) v Secretary of State for Security and Justice, concerning the family reunification of parents with an unaccompanied minor refugee and considered that it could be applied to the reverse situation arising in the present case concerning the family reunification of a child with a parent who has been granted refugee status. The Administrative Court stated that the decisive date for the purposes of assessing XC’s status as a minor is not the date of the application for a visa for the purpose of family reunification, but the date of the application for asylum submitted by her father. According to this court, point (b) of the first subparagraph of Article 4(1) of the Directive 2003/86 should be interpreted as meaning that a child of the sponsor must be regarded as a minor if he or she was a minor at the time the sponsor submitted the application for asylum. Moreover, the same court stated that in the case of family reunification of children, the determination of the relevant date for the purposes of assessing whether the child concerned is a minor is not left to the discretion of the Member States but must result from an autonomous interpretation of Directive 2003/86. It stated also that the effectiveness of the right to family reunification would be undermined, and the principles of legal certainty and equal treatment infringed if, for the purposes of point (b) of the first subparagraph of Article 4(1) of that directive, the date chosen for assessing whether the child concerned was a minor was that on which the child’s visa application was lodged. The Administrative Court further noted that XC submitted her visa application within the period of three months from the day on which the person holding the original right of residence was granted refugee status, as required in accordance with the relevant case-law of the Court.

The Federal Republic of Germany lodged an appeal on a point of law against before the Federal Administrative Court and argued that the case in the judgment of 12 April 2018, A and S, concerned different facts and a different interpretation of a provision of Directive 2003/86 than that at issue in this case. The Federal Administrative Court noted that XC was not entitled to the visa applied for on the basis of national law, given that, under that law, the fact that she had reached the age of majority before the date on which the visa application was submitted precluded this. Because the Federal Administrative Court was uncertain as to whether the national legislation complies with Directive 2003/86, it stayed the procedure and referred questions, inter alia, on whether it is possible to apply to the present case the approach adopted by the CJEU in the judgment of 12 April 2018, A and S, according to which a third-country national or a stateless person who is below the age of 18 years at the time of his or her entry into the territory of a Member State and of the submission of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must be regarded as a ‘minor’ within the meaning of Article 2(f) of Directive 2003/86, read in conjunction with Article 10(3)(a) thereof.

The CJEU ruled that: "Point (c) of the first subparagraph of Article 4(1) of the Directive 2003/86/EC   on the right to family reunification must be interpreted as meaning that the date to which reference must be made in order to determine whether the child of a sponsor who has been granted refugee status is a minor child, within the meaning of that provision, where that child has attained his or her majority before the parent sponsor was granted refugee status and before the application for family reunification was submitted, is the date on which the parent sponsor submitted his or her asylum application with a view to obtaining refugee status, provided that an application for family reunification was submitted within three months of the recognition of the parent sponsor’s refugee status.

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 minor child with a parent who has been granted refugee status, where that child has attained his or her majority before the parent sponsor was granted refugee status and before the application for family reunification was submitted, the legal parent/child relationship is not sufficient on its own. However, it is not necessary for the parent sponsor and the child concerned to cohabit in a single household or to live under the same roof in order for that child 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 parent sponsor and his or her child be required to support each other financially."