On 5 September 2019, the Court of Justice of the European Union (CJEU) published the Opinion of Advocate General (AG) Pitruzzella in the case of TB v. Bevándorlási és Menekültügyi Hivatal (C-519/18) concerning the margin of discretion available to Member States when assessing dependency of extended family members in applications for family reunification.
AG Pitruzzella first clarified that while Article 10(1) of the Family Reunification Directive 2003/86/EC, regarding reunification with nuclear family members, is a mandatory provision for Member States, Article 10 (2), concerning family reunification with dependent extended family members, is an optional provision. Nonetheless, AG Pitruzzella held that the wording of Article 10(2) is precise in defining the extent of the margin of discretion available to States. He maintained that the Directive makes a particular effort to specify the cases in which reunification is possible, and the reference to a dependency link was conceived as a provision which was not merely a wish but which, on the contrary, was binding on Member States. Thus, he found that Member States have an obligation to comply with the condition that the family member be ‘dependent on the refugee’ as a prerequisite for the applicability of Article 10(2).
With regard to defining ‘dependency’, AG Pitruzzella held that the definition is not at the discretion of Member States and must be interpreted as meaning that the family member is in a situation in which the refugee must guarantee the resources necessary for their subsistence. With reference to case law, AG Pitruzzella acknowledged that Member States are not precluded from imposing a particular requirement relating to the nature or reasons for dependence. However, the examination of the family reunification application under Article 10(2), read in conjunction with Article 17, must be conducted on an individual basis and examine the applicant’s specific situation. With further reference to case law, AG Pitruzzella regarded national legislation that establishes minimum requirements for family reunification to be contrary to the objective of the directive in so far as it failed to conduct a concrete examination of the individual situation of each applicant. An individualised assessment was seen to be all the more necessary when the family reunification application is made a refugee, as is reinforced by recital 8 of the Directive.
Lastly, AG Pitruzzella held that the decision-making authority must take into account all relevant elements of the case, such as the nature and seriousness of the condition suffered by the family member concerned, as well as the degree of kinship and dependence. Moreover, particular attention must be paid to the specific situation in which the family member finds themselves in their country of origin and the particular difficulties they may face due to their gender, age or social situation, as well as the economic, social and health situation in that country.
Based on an unofficial translation by the EWLU team.