The case concerned the application for family reunification submitted by parents and siblings of a minor, Syrian applicant, who was granted refugee status in Austria. The Austrian authorities initially rejected the application on grounds that the unaccompanied minor, who was 16 when he arrived in Austria, would turn 18 while the request was still being processed.

The Administrative Court of Vienna submitted questions before the CJEU for preliminary ruling. The referring court had doubts that CR, GF and TY may derive rights from Article 10(3)(a) of Family Reunification Directive 2003/86 when RI reached majority during the family reunification procedure, and referred to the interpretation made by the court in the judgment of A. and S. v Secretary of State for Security and Justice (Staatssecretaris van Veiligheid en Justitie), Case C‑550/16, 12 April 2018 in relation to a situation in which an unaccompanied minor attains his or her majority in the course of the asylum procedure and thus even before the application for family reunification is submitted, should be transposable to a situation, such as that at issue in the main proceedings, where the sponsor is still a minor at the time of the submission of that application, such that, also in the second situation, the right to family reunification may be based on that provision.

Secondly, the court asked whether the conclusion of the court in paragraph 61 of the above judgment, according to which the application for family reunification made on the basis of Article 10(3)(a) of Directive 2003/86 by a sponsor who has attained his or her majority in the course of the asylum procedure must, in principle, be submitted within a period of three months of the date on which he or she was declared to have refugee status, must also be transposed to the situation of a sponsor who has reached majority during the family reunification procedure.

Thirdly, the referring court asked whether that period must be regarded as having been complied with where, as in the present case, three months and one day have elapsed between the notification of the decision by which the sponsor was recognised and the first applications for entry and residence, in relation to which compliance with the said period should be assessed. The fourth question was whether compliance with the conditions set out in Article 7 of Directive 2003/86, may also be required in the event of family reunification under Article 10(3)(a) of that directive.

The fifth question concerned the fact that TY, the sister of the sponsor RI, is not one of the ‘family members’ in respect of whom a right to family reunification is provided for in Austrian law. However, TY lives with her parents in Syria, suffers from cerebral palsy and is in permanent need of a wheelchair and daily personal care, including assistance with eating, which assistance is provided essentially by her mother, CR, as TY cannot avail herself of any social assistance network.

On the first question, the court noted that in view of the judgments in the cases  the judgments of SW (C-273/20), BL, BC v Stadt Darmstadt (C‑273/20), Stadt Chemnitz (C‑355/20), Joined Cases C‑273/20 and C‑355/20, and Bundesrepublik Deutschland v XC, joined by Landkreis Cloppenburg, C-279/20, both on  August 2022, the referring court did not maintain it.

The court sitting in Grand Chamber formation ruled that:

‘’1.      Article 10(3)(a) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, in order to be able to base a right to family reunification on that provision and thereby benefit from the more favourable conditions laid down therein, that provision does not require the first-degree relatives in the direct ascending line of an unaccompanied minor refugee to submit the application for entry and residence for the purposes of family reunification with him or her within a given period, where that refugee is still a minor on the date on which that application is submitted and reaches majority during the family reunification procedure.

2.      Article 10(3)(a) of Directive 2003/86 must be interpreted as requiring a residence permit to be granted to the adult sister of an unaccompanied minor refugee, who is a third-country national and who, on account of a serious illness, is totally and permanently dependent on the assistance of her parents, where a refusal to grant that residence permit would result in that refugee’s being deprived of his or her right to family reunification with his or her first-degree relatives in the direct ascending line, conferred by that provision.

3.      Article 10(3)(a) of Directive 2003/86 must be interpreted as meaning that a Member State may not require that, in order to be able to benefit from the right to family reunification with his or her first-degree relatives in the direct ascending line under that provision, an unaccompanied minor refugee or his or her first-degree relatives in the direct ascending line meet the conditions laid down in Article 7(1) of that directive, irrespective of whether the application for family reunification has been submitted within the period laid down in the third subparagraph of Article 12(1) of the said directive.’’