A Member State may not automatically declare an application for international protection inadmissible where the applicant already enjoys refugee status in another Member State, the Advocate General ruled on Thursday 30 September in his Opinion presented to the Court of Justice of the EU (Case C-483/20).
The case concerns a Syrian national who was granted international protection in Austria in 2015 and who, having travelled to Belgium in early 2016 to join his two daughters, one of whom is a minor, who are holders of subsidiary protection, had submitted a new application for protection there.
However, the Belgian authorities had declared this application inadmissible, given the prior recognition of refugee status in the first Member State, basing themselves on the Belgian legislation resulting from the 2013 Directive on common procedures for granting and withdrawing international protection.
This rejection decision was issued without examining the merits of the application, which the Syrian refugee then challenged before the Council of Alien Law Litigation and then the Belgian Council of State, which turned to the Court of Justice.
Advocate General Priit Pikamäe considered on 30 September that Union law precludes a Member State from “concluding that an application for refugee status is inadmissible on the ground that the applicant has already been granted such status by another Member State, in particular where that applicant runs a serious risk of being subjected, in the event of return to that other Member State, to treatment incompatible with the right to respect for family life as laid down in the Charter of Fundamental Rights”. A right that must also be read in conjunction with the obligation to take into consideration the best interests of the child.
The Member State to which a new application for protection is submitted must therefore assess the reality of such a risk by giving the applicant the opportunity to present, during the personal interview on the admissibility of the application, all the information, in particular personal information, likely to confirm the existence of such a risk, the Advocate General considers.
In the absence of a document guaranteeing security and stability of residence in the host Member State, the competent national authority must also assess the overall family situation in the light of all the relevant factors of the case, including, in particular, the age of the child, his or her situation in the country concerned and the degree of dependence of the child on his or her parent, in order to determine the risk that separation from the parent would entail for the parent/child relationship and the stability of that child.
The Advocate General states, however, that an application for international protection based solely on the necessary family unification in the host Member State with the beneficiary of such protection cannot be granted. Furthermore, EU law does not provide for automatic recognition, on a secondary basis, of refugee status for a family member of the beneficiary of international protection.
Link to the conclusions: https://bit.ly/3F9a4zI (Original version in French by Solenn Paulic)