The request for a preliminary ruling was submitted by the Higher Administrative Court of Berlin-Brandenburg in the context of family reunification proceeding, particularly on parents' right to family reunification when their child arrived in a Member State as an unaccompanied minor but reached the age of majority

CT, the applicant's son, entered Germany at the age of 16 and further applied for asylum on 3 June 2017 at the age of 17 years old. The Federal Office for Migration and Refugees (BAMF) granted him refugee status when he was already 18 years old and three months.

According to his parents account, they initially did not apply for family reunification with their son because of advice given to them by CT's guardian, his lawyer, various competent authorities and a refugee organisation that their right to family reunification with their child, recognised refugee, ended when the latter reached the age of majority, according to the Federal Administrative Court's judgment of 18 April 2013.  

The CJEU ruled on 12 April 2018 in A. and S. (C-550/16, 12 April 2018) that Article 2(f) read with Article 10(3)(a) of the Family Reunification Directive must be interpreted as meaning that a third-country national or stateless person under the age of 18 at the time of entry into the territory of a Member State and of the lodging of the asylum application, 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', for the purposes of that provision.

After becoming acquainted with the CJEU ruling, the applicant requested the national competent authorities to issue his parents a residence permit for the purpose of family reunification. His parents appeared in person at the German Consulate General in Istanbul on 20 November 2018 to submit their applications but their request was rejected by decision of 10 April 2019 on grounds that their right to family reunification existed until the applicant reached the age of majority and that they had failed to submit their application as soon as possible after their son was granted refugee status. The parents contested these decisions before the Regional Administrative Court of Berlin which held that they could not claim family reunification with their son because they did not submit an application within a three months' time limit as ruled in A. and S., and this latter judgment could not serve as a basis for allowing any delayed starting point for that application.

In an onward appeal, the Higher Administrative Court of Berlin-Brandenburg decided to stay the proceedings and to seek guidance from the CJEU on whether, Article 10(3)(a) of the Family Reunification Directive must be interpreted as meaning that, when a third country national enters the territory of a Member State as ‘unaccompanied minor' and reaches the age of majority during the procedure for international protection and is recognised as refugee before the CJEU ruling in A. and S., the request for family reunification submitted by his parents must be introduced in principle within a three months' time-limit starting with the date when the minor was recognised as refugee, according to this judgement, in a situation where, before A. and S., such a request made for an adult refugee was deprived of any prospects of success in view of the jurisprudence by higher national jurisdictions in that country.

From the outset, the court reiterated that the scope of the Family Reunification Directive is to set out the conditions for this right, with more favourable rules for refugees, particularly enshrining an explicit positive obligation for Member State under Article 10(3)(a) corelated with a precise right which is meant to specifically guarantee a higher protection for those refugees who are ‘unaccompanied minors' – see  Landeshauptmann von Wien (C‑560/20, 30 January 2024). Relatedly, it has already clarified in A. and S. that the concept of ‘unaccompanied minor' must be interpreted as meaning that a third country or a stateless person who is under 18 years of age at the time of entry into the territory of a Member State and of lodging an application for asylum in that State, but who, during the asylum procedure, reaches the age of majority and is subsequently granted refugee status, must be classified as a "minor" within the meaning of Article 10(3)(a) of the Family Reunification Directive. The court emphasised that a restrictive approach, by making the right to family reunification dependent on the moment when a competent national authority takes a formal decision on the application for international protection, which may entail a lengthy process, would be counter to the purpose of the directive and the principle of equal treatment and legal certainty.

On the time limit to apply for family reunification with a minor refugee sponsor, the court referred to the fact that the directive does not expressly determine until what time a minor refugee may apply for the benefit of the right to family reunification provided for in Article 10(3)(a). It drew on its previous judgment in A. and S. that first, an application for family reunification must be submitted within a reasonable time whereas the starting point of this time is the date on which refugee status was granted to that minor. It further clarified that the three-month period has an “indicative value” for determining what constitutes a reasonable time. However, the court held that, even if an application must “in principle” be submitted within this three-month period, it does not preclude its adaptation in particular circumstances. Subsequently, the court affirmed that the reasonableness of a time limit can not be determined in an abstract manner or by reference to a strict maximum period of time, but it must be assessed for each specific case by taking into account the particular circumstances of the case.

In the specific circumstances of the present case, the court noted that the three months' time limit had already expired before the CJEU pronounced its judgment in A. and S. and an application for family reunification before that judgment would have had no prospect of success in view of case law by higher courts and decision-making practice by administrative authorities at national level.

Reiterating the importance of taking into account fundamental rights when interpreting national law consistent with EU law, the court emphasised that Member States are required to apply the Family Reunification Directive in light of Articles 7 and 24(2) and (3) of the Charter of fundamental rights of the EU (EU Charter), meaning to take into account the best interests of the child and to promote family life when assessing applications for family reunification.

In this context, the court determined that this is the case for Article 10(3)(a) of the Family Reunification Directive which promotes the reunification of unaccompanied refugee minors with their parents. Hence, the court clarified that the competent national authorities and the courts of the Member States deciding on an application for family reunification are required, in view of the important interests at stake and to ensure reunification of the refugee minor with his parents, to consider all the specific circumstances of each case to determine whether the time limit within which the application was lodged meets the reasonableness requirement. Specifically, these authorities must examine whether an application can still be considered admissible, even when submitted after the expiry of the three months from the date on which the minor was granted refugee status, by considering all the specific circumstances invoked by the applicant, which may include  the reasons for having exceeded this time limit and the diligence shown by the sponsor or members of their family.

Against this background, the CJEU concluded that Article 10(3)(a) of the Family Reunification Directive must be interpreted as meaning that: ‘where a third-country national, who entered the territory of a Member State as an unaccompanied minor, reaches the age of majority during the examination of their application for international protection and is granted refugee status before the date of the judgment of 12 April 2018, A and S (C-550/16), the application for family reunification of their parents must be lodged within a reasonable time from the date on which the minor concerned was granted refugee status. The reasonableness of this time must be assessed in light of all the circumstances specific to each case.'