RI, an unaccompanied Syrian child, arrived in Austria in 2015 and was granted refugee status by the authorities. Between 2017 and 2018, his parents and his adult sister applied for residence permits in Austria on two occasions with the purpose of family reunification with RI. These applications were rejected by the Austrian authorities on the basis that RI became an adult after submitting these applications. After RI’s relatives challenged the authorities’ decision before the Administrative Court of Vienna, that court requested the Court of Justice of the European Union (CJEU) to interpret the directive on the right to family reunification.
The Court held that an unaccompanied child refugee, who reached majority during the procedure relating to the application for family reunification with their parents, has a right to such reunification. This right cannot depend on the time it may take for the authorities to decide on the application. Therefore, Austrian authorities could not reject the application for family reunification on the grounds that RI was an adult when this matter was decided.
The Court also considered that there was no place for a positive decision on the parents' application alone because the illness suffered by the sister made her fully dependent on her parents and that would make it impossible for them to leave the country to join RI without her. This would therefore result in the de facto deprivation of RI's right to family reunification, undermining the effectiveness of this right.
Lastly, the Court held that neither the child refugee nor his parents could be required to provide enough housing, health insurance, or finances for themselves or for the severely ill sister. These children would in effect be deprived of their right to family reunification if the prospect of reuniting unaccompanied refugee children with their parents were conditional on the fulfilment of the above requirements.
CHIP welcomes the decision of the CJEU and takes the opportunity to recall the importance of the child's right to identity (articles 7 and 8 of the CRC), of which family relations are an essential element to be preserved and, where necessary, restored by States through family reunification (articles 9 and 10 of the CRC).
