The Higher Administrative Court of Lower Saxony rejected the leave for appeal submitted by the Federal Office for Migration and Asylum (BAMF) in a case concerning the requirements for eligibility for derived right to refugee status for a minor child of a recognised parent.

The court noted that the question submitted by the BAMF was whether there is a violation of Section 26 of the Asylum Act (derived right to asylum) if the family relationship between the relative and the minor who claims derived status is not resumed or continued. The Higher Administrative Court ruled that the question was not of fundamental importance and did not meet the requirements of Section 78 (3) Number 1 of the Asylum Act because the answer lied in the wording of the respective legal provision.

The court held that the regional administrative court correctly assessed that the prerequisite for the granting a derive right to refugee protection under Section 26 (5) Sentences 1 and 2 in conjunction with Paragraph 2 of the Asylum Act is not that a minor child of a parent recognised as a refugee should live in Germany in a family unit with that parent.

The Higher Administrative Court reiterated that the wording of the Section 26 (2) of the Asylum Act reads as follows: “a minor, unmarried child of a person entitled to asylum, who is a minor at the time of their asylum application, is recognised as entitled to asylum upon application, provided that the foreigner's recognition as entitled to asylum is final and cannot be revoked or withdrawn”. The court noted that the existence of a primary family relationship is not a prerequisite for this status and the legal definition cannot be extended to incorporate unwritten requirements since courts’ powers are limited.

The court compared the current case with the two similar scenarios provided under Section 26 of the Asylum Act:1) derived right to asylum of a spouse or registered partner of a person entitled to asylum upon application if the marriage or registered partnership with the person granted asylum already existed in the state where the person granted asylum is politically persecuted (Section 26 (5) of the Asylum Act) and 2) derived right to asylum of the parents of an unmarried minor entitled to asylum, upon application, if, among other things, the family fulfils the criteria of Article 2(j) of the recast Qualification Directive (QD), meaning that the family already existed in the state where the asylum seeker is politically persecuted. The court held that the abovementioned cases differ from the Section 26 (2) of the Asylum Act which lacks a similar and corresponding requirement for family life.

The court referenced the CJEU judgment in Bundesrepublik Deutschland v SE (C-768/19, 9 September 2021) where the latter interpreted the term "family member" in Article 2(j), third indent, of the recast QD as requiring three cumulative conditions: a) the family already existed in the country of origin; b) the family members of the person granted international protection are residing in the same Member State in connection with the application for international protection, and c) the person granted international protection is an unmarried minor. As such, the actual resumption of family life in the territory of the host Member State is not among these requirements because, as CJEU mentioned, the relevant provisions of the recast QD and the EU Charter allow the holders of this right to decide on how they want to enjoy their family life.

It added that Section 26 (2) of the Asylum Act must be interpreted in view of Recital 19 of the recast QD which states that the definition of ‘family member’ must be broadened and Recital 18 which provides that the Member States must consider the principle of family unity, the welfare and social development of the minor, safety considerations, and the wishes of the minor, taking into account his or her age and maturity when assessing the best interests of the child. 

In view of the CJEU judgment in Bundesrepublik Deutschland v SE (C-768/19, 9 September 2021), the court affirmed that the BAMF argument towards a stricter requirements for the derived asylum right of a child than for the recognition of a spouse or registered partner is not sustainable, at least from a systematic legal perspective. It added that the legislative history of this provision does not suggest the contrary of the abovementioned.

The court further noted that recital 36 of the recast QD provides for a presumed nexus to danger for family members solely on basis of formal consideration of kinship, without distinguishing based on actual existence of family life in the host country. Recital 36 stipulates that "Family members are generally at risk of persecution in such a way as to constitute grounds for granting refugee status, solely on the basis of their relationship to the refugee."

The court further affirmed, contrary to the BAMF argument that family protection is extended ‘excessively’, that Section 26 (2) of the Asylum Act fulfils the requirements of the recast QD, in particular pursuant to Article 23(1), to ensure that the family unit can be maintained for persons granted international protection.

Based on the abovementioned, the court also ruled that the granting of international protection status to minor children who no longer live in the household of the primary beneficiary is not contrary to Article 3 of the recast QD. This is because Member States may adopt or maintain more favourable standards for deciding entitlement to refugee or subsidiary protection and the content of international protection, as long as they are compatible with the recast QD. According to recital 14 of the same directive, the introduction of more favourable rules is compatible with EU law if they do not jeopardise the general structure or objective of the directive.

In conclusion, the Higher Administrative Court of Lower Saxony rejected BAMF’s appeal.