F.G. was granted subsidiary protection status in the Netherlands on 23 September 2014. On 22 January 2015, he applied for a family reunification visa for K, his wife, and B, his minor daughter. The State Secretary rejected that application on the grounds that it had been lodged outside the three-month period after F.G. obtained a residence permit and that this delay was not objectively excusable. K and B challenged that decision, which was dismissed, and on appeal, the Council of State, noting that although beneficiaries of subsidiary protection are excluded from the scope of Directive 2003/86 (Family Reunification Directive), the Netherlands legislature had chosen to apply those rules to such beneficiaries directly and unconditionally to ensure equal treatment with refugees. Against this context, the court stayed the proceedings and referred two questions to the CJEU.

By its first question, the referring court asked whether

‘Having regard to Article 3(2)(c) of [Directive 2003/86] and to the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638), does the Court of Justice have jurisdiction to answer questions referred for a preliminary ruling by courts in the Netherlands on the interpretation of provisions of that directive in proceedings concerning the right of residence of a member of the family of a person with subsidiary protection status, if that directive has, under Dutch law, been declared directly and unconditionally applicable to persons with subsidiary protection status?'

The court noted that the exclusion clause in Article 3(2)(c) of Directive 2003/86 (Family Reunification Directive) was introduced with a view to the future adoption of a common subsidiary protection status for all Member States when the Commission would propose to introduce provisions on family reunification tailored to third country nationals enjoying subsidiary protection status. Thus, the court concluded that the Family Reunification Directive must be interpreted as not applying to third-country national family members of a beneficiary of subsidiary protection status, such as F.G.

Next, the court recalled that it has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations where, even if the facts of the case do not fall within the field of application of EU law directly, they apply because domestic law refers directly and unconditionally to such EU law provisions. The court highlighted that it is in the EU's interest that provisions derived from EU law be interpreted uniformly to avoid future divergent interpretations. The court noted that the Netherlands legislature had decided to ensure in its national legislation that beneficiaries of subsidiary protection are treated more favourably than provided for in the Family Reunification Directive by applying the rules applicable to refugees under that directive to beneficiaries of subsidiary protection. The court concluded that, when applying Dutch law in cases such as these, national courts are required to apply Article 12(1) of the Family Reunification Directive directly and unequivocally, and that it was clearly in the EU's interest that the CJEU provide a preliminary ruling on the question.

The second question referred to was whether

‘the system provided for by [Directive 2003/86] preclude a national rule, such as that at issue in the main proceedings, under which an application for consideration for family reunification on the basis of the more favourable provisions of Chapter V of that directive can be rejected for the sole reason that it was not submitted within the period laid down in the third subparagraph of Article 12(1)?'

The CJEU noted that the EU legislature did not determine how an application made under the more favourable rules in the first subparagraph of Article 12(1) of the directive should be regarded if lodged out of time. The court indicated that, in such a case, it is for the domestic legal system of the Member State in question to determine those requirements in accordance with the principle of procedural autonomy, provided that the principles of equivalence and effectiveness are respected. The court noted that it was not apparent that similar domestic situations were treated differently under Dutch law. Regarding the principle of effectiveness, the court held that such a national rule was not per se liable to render the exercise of the right to family reunification conferred by Directive 2003/86 impossible in practice or excessively difficult.

The court concluded that the system provided in the Family Reunification Directive did not preclude such a national rule provided that three conditions were met: first, that the rules lays down that such a ground of refusal cannot apply to situation in which particular circumstances make the late submission objectively excusable; second, that the rule lays down that the persons concerned must be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification;  third, that the rule ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees of Articles 10, 11 and 12(2) of the Family Reunification Directive.