The European Court of Justice ruled on Tuesday 9 November in case C-91/20 that the Common European Asylum System does not, in principle, preclude a Member State from automatically extending refugee status to the minor child of a parent with refugee status, on a derived basis and for the purpose of maintaining family unity.
The asylum application of LW, a Tunisian national born in Germany in 2017 to a Tunisian woman, whose asylum application was unsuccessful, and a Syrian man, who was granted refugee status in 2015, was rejected.
According to the court which referred the case, which LW appealed to, she cannot claim refugee status on the basis of a right of her own, as she could benefit from effective protection in Tunisia. However, LW would qualify under German law for refugee status as a minor child of a parent who has been granted refugee status, on a derived basis and for the purposes of family protection in the context of asylum.
The court which referred the case asked the Court whether such an interpretation of German law is compatible with Directive 2011/95, in particular with Article 3 on more favourable standards and Article 23(2) on the maintenance of the family unit.
According to the Court, these provisions do not preclude a Member State, by virtue of more favourable national provisions, from granting this status, even if the child was born on the territory of that Member State and possesses, through his or her other parent, the nationality of another third country in which he or she would not be at risk of persecution. However, the child must not fall within a ground for exclusion referred to in the Directive and must not be entitled to better treatment in that Member State than that resulting from the granting of refugee status.
See the judgment: https://bit.ly/306HApW (Original version in French by Camille-Cerise Gessant)