On 13 March, the Court of Justice of the European Union (CJEU) delivered a preliminary ruling on family reunification and the standard of proof required upon assessment of family ties.

The case concerned an Eritrean national who was granted subsidiary protection status and a residence permit by the Dutch authorities. After receiving this status, the applicant submitted an application to reunite with a minor Eritrean child claiming that he was her nephew placed under her authority since the death of his parents. As the applicant did not provide official supporting documents proving the identity of the minor, the death of the parents and the guardianship, the application was denied. The applicant brought the case before the District Court of The Hague, claiming that the standard of proof required was contrary to Article 11 (2) of the Directive 2003/86. On appeal, the domestic court decided to refer a preliminary question to the CJEU regarding the correct interpretation of that article.

First, the Court recognised its jurisdiction since Article 11 is directly and unconditionally applicable under Dutch law to a situation such as the one at issue. It then went on to note that Article 11 (2) must be interpreted as precluding an application of family reunification to be rejected only because the applicant did not provide official documentary evidence proving her claim. Moreover, the provision prevents the national authorities from dismissing arguments regarding the inability to produce such evidence solely on the basis of general country of origin information (COI). On the contrary, national authorities have to conduct a case-by-case assessment and attach particular importance to the best interests of the child concerned with a view to promoting family life.

Furthermore, the national authorities have to take into account, inter alia, the personality of the sponsor and the difficulties they are facing, and ensure that requirements in respect of probative value and plausibility of the evidence are always proportionate. In addition to that, Recital no. 8 of the Directive requires special attention to be paid to the situation of refugees, since it is often impossible for them or their family members to obtain official documents.

The Court concluded that Article 11(2) does not leave a margin of appreciation to the domestic authorities and clearly states that the absence of documentary evidence cannot be the sole reason for rejecting an application in a context such as the one under examination. Conversely, it obliges Member States to take into account other evidence of the existence of the family relationship.