delivered on 5 September 2019 (1)

Case C‑519/18

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary))

(Reference for a preliminary ruling — Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86/EC — Requirements for the exercise of the right to family reunification of refugees — Article 10(2) — Concept of being ‘dependent’ — National legislation making family reunification subject to the family member concerned being unable to provide for his or her own needs in the country of origin on account of his or her state of health)

1.Can a national authority make family reunification, which has been applied for by a member of a refugee’s extended family, subject to the requirement that that family member is unable to provide for his or her own needs in his or her country of origin on account of his or her state of health?

2.This is, in essence, the subject of the question referred to the Court by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) in connection with family reunification proceedings concerning the sister of a refugee, both of Iranian origin.

3.Under Article 10(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, (2) Member States are able to authorise the reunification of members of a refugee’s extended family ‘if they are dependent’ on the refugee.

4.In this case, the referring court asks the Court of Justice about the extent of the discretion enjoyed by Member States in the implementation of that provision. In particular, the Court is requested to specify to what extent they are required to comply with the eligibility criterion set out in that provision, relating to the existence of a relationship of dependency between the family member concerned and the refugee. (3)

II. Legal framework

5.Directive 2003/86 determines the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States.

6.Recital 8 of that directive is worded as follows:

‘Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification.’

7.Article 3(5) of that directive is worded as follows:

‘This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions.’

8.In Chapter II of that directive, entitled ‘Family members’, Article 4(1) to (3) provides:

‘1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:

(a)the sponsor’s spouse;

(b)the minor children of the sponsor and of his/her spouse, including children adopted …;

(c)the minor children, including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. …;

(d)the minor children including adopted children of the spouse where the spouse has custody and the children are dependent on him or her. …

…

(a)first-degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin;

(b)the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health.

Member States may decide that registered partners are to be treated equally as spouses with respect to family reunification.’

9.In Chapter V of Directive 2003/86, entitled ‘Family reunification of refugees’, Article 10(1) and (2) provides:

‘1. Article 4 shall apply to the definition of family members except that the third subparagraph of paragraph 1 thereof shall not apply to the children of refugees.

10.Under Article 17 of that directive:

‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’

11.Paragraph 19 of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. Törvény (4) (Law No II of 2007 on the entry and stay of third country nationals, ‘the 2007 Law’) provides:

‘(1) A third country national can obtain a residence permit for the purpose of family reunification where he or she is a family member of a third country national who has a residence permit, immigration permit, permanent residence permit, interim permanent residence permit or a national or EC permanent residence permit, or of a person who holds a residence card or permanent residence card under a specific law (for the purpose of this paragraph ‟the sponsor”).

(2) The following can obtain a residence permit for the purpose of family reunification:

(a)a family member of a person who has been granted refugee status, or

(b)the parent of an unaccompanied minor who has been granted refugee status or, in the absence of the parent, the minor’s legally appointed guardian.

…

(4) The following can obtain a residence permit for the purpose of family reunification:

(a)the parents dependent on the sponsor or his or her spouse or on the person who has been granted refugee status;

(b)the siblings and relatives in the direct line of the sponsor or his or her spouse or of the person who has been granted refugee status where they are objectively unable to provide for their own needs on account of their state of health.’

III. The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

12.The sponsor is of Iranian origin and, on 7 September 2015, he was granted refugee status by the competent Hungarian authority. On 16 January 2016, the sponsor’s sister applied to the Hungarian diplomatic mission in Teheran (Iran) for a residence permit for the purposes of family reunification.

13.That application was refused by the first-tier authority on two grounds. First, it considered that the applicant had provided incorrect information. Secondly, that authority found that that application also did not satisfy the requirements laid down in Paragraph 19(4) of the 2007 Law since the applicant, having regard to her education and state of health, had not demonstrated that she was unable to provide for her own needs on account of her state of health. In that regard, the first-tier authority noted that, according to the medical documents submitted with the application, the applicant was suffering from depression that required her to follow regular medical treatment.

14.That decision was upheld by the authority hearing the administrative appeal.

15.The sponsor brought an action against that decision before the referring court. He considers, in particular, that the requirements laid down in Paragraph 19(4) of the 2007 Law are contrary to the provisions of Article 10(2) of Directive 2003/86 and therefore requested the referring court to make a reference for a preliminary ruling.

16.Since the referring court is also uncertain as to whether Paragraph 19(4) of the 2007 Law is compatible with EU law, it decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Must Article 10(2) of [Directive 2003/86] be interpreted as meaning that, if a Member State, under that article, authorises the entry of a family member other than those referred to in Article 4 [of that directive], only the requirement under Article 10(2) (that the family member must be ‟dependent on the refugee”) can be applied to that family member?

(2)If the first question is answered in the affirmative, does the status of ‟dependent” person (‟dependency”) as referred to in Article 4(2)(a) of [Directive 2003/86] imply a factual situation in which the various aspects of dependency must all be present, or is it sufficient that any of those aspects is present, depending on the specific circumstances of each case, for there to be dependency? In that context, is it consistent with the requirement established in Article 10(2) (that the family member must be ‟dependent on the refugee”) that a national provision, excluding any individual assessment, takes account of a single factual element, an indicator of dependency (‟[being] objectively unable to provide for [his or her] own needs on account of [his or her] state of health”), as a factor meaning that the requirement in question is satisfied?

(3)In the event that the first question is answered in the negative and that, therefore, a Member State can apply other requirements in addition to that set out in Article 10(2) [of Directive 2003/86] (that the family member must be ‟dependent on the refugee”), does this mean that the Member State is entitled, if it sees fit, to establish any requirement, including those laid down in Article 4(2) and (3) [of the Directive] in relation to other family members, or can the Member State only apply the requirement contained in Article 4(3) of the Directive? In that case, what factual situation is entailed by the requirement ‟objectively unable to provide for their own needs on account of their state of health” in Article 4(3) of the Directive? Must it be interpreted as meaning that such family members are unable [to provide] for ‟their own needs” or that ‟they are unable” to look after ‟themselves”, or, if applicable, in some other way?’

17.The applicant, the Hungarian and Netherlands Governments and the European Commission have submitted written observations.

18.Before considering the questions which the referring court submits to the Court, a preliminary observation should be made on the admissibility of this reference for a preliminary ruling.

19.In its observations, the Hungarian Government maintains that the present reference for a preliminary ruling is inadmissible since Paragraph 19(4) of the 2007 Law is not a national measure transposing Article 10(2) of Directive 2003/86. It notes that that national provision was not formally notified to the Commission, as it had been adopted in the context of Hungary’s own powers.

20.I do not believe that the lack of notification relied on by the Hungarian Government can, in the present case, give grounds for finding that the present reference for a preliminary ruling is inadmissible.

21.Indeed, where the content of the decision to refer is challenged by one of the parties to the proceedings, it is apparent from settled case-law that the Court must in principle confine its examination to the matters which the court or tribunal making the reference has decided to submit to it for consideration, in particular as regards the detailed rules for implementing the relevant national legislation that the referring court considers to be established, since the interpretation of national law is a matter for the courts of the Member States alone. (5) In those circumstances, the Court must consider this reference for a preliminary ruling in the light of the referring court’s interpretation of national law, irrespective of the criticism expressed in that regard by the Hungarian Government.

22.I would also observe that, according to a public report submitted in 2016 by the Hungarian Ministry of the Interior, the 2007 Law did seek to transpose, into the national legal order, the provisions of Directive 2003/86, including with regard to the family reunification of a refugee’s extended family. (6)

23.I consider, therefore, that the present reference for a preliminary ruling is admissible and that the questions submitted by the referring court must be examined.

24.By its first question, the referring court asks the Court of Justice, in essence, whether Article 10(2) of Directive 2003/86 must be interpreted as meaning that, if a Member State authorises the reunification of members of a refugee’s extended family, that State is required to comply with the condition of ‘dependency’ set out in that provision.

25.The Court has not yet had the opportunity to provide guidance regarding the precise scope of Article 10(2) of that directive and, in particular, the discretion afforded to the Member States in implementing that provision. A comparative analysis of the methods of transposing Article 10(2) of Directive 2003/86 into the law of the Member States reveals significant disparities, which make clarification all the more necessary. (7)

26.In order to answer the question which the referring court is asking the Court, it seems to me necessary to make a preliminary observation on the subject matter and nature of the provision in question.

27.In the context of the family reunification procedure established by Directive 2003/86, the EU legislature distinguishes between two types of regime.

28.The first is a general regime for third country nationals, the material conditions of which are set out in Articles 4 to 8 of that directive.

29.The second is a special regime for refugees, the material conditions of which are set out in Articles 9 to 12 of Directive 2003/86. That regime must guarantee the effectiveness of the right to a normal family life by bringing together family members who, because of the situation in their country of origin, have fled persecution and serious harm and have been separated during a forced displacement or flight.

30.Article 10 of that directive falls within that special regime and is designed to define the scope of those who may be eligible for family reunification.

31.Article 10(1) of Directive 2003/86 concerns the members of the refugee’s nuclear family, that is to say the spouse and minor children. (8) It is a binding provision since Member States are required to authorise the entry and residence of such persons under conditions which are substantially the same as those laid down by the EU legislature in Article 4(1) of that directive. (9) The Court considers that authorisation of family reunification is the general rule and that the provisions allowing for restrictions to be placed on it must be interpreted strictly. (10) According to the Court, Member States are here bound by ‘precise positive obligations, with corresponding clearly defined individual rights. [The Article in question] requires them, in the cases determined by that directive, to authorise the family reunification of certain members of the sponsor’s family, without being left a margin of appreciation’. (11)

32.Article 10(2) of Directive 2003/86 concerns, on the other hand, the members of the refugee’s extended family (adult children, siblings, nephews and nieces, and so forth). Unlike Article 10(1) of that directive, Article 10(2) is an optional provision, which means, according to settled case-law, that it gives wide discretionary power to the Member States. (12) They are not required to implement the provisions laid down in Article 10(2) of Directive 2003/86, EU law thus leaving each Member State to decide in its absolute discretion, on the basis of political, humanitarian or practical considerations, to allow the family reunification of members of a refugee’s extended family.

33.Directive 2003/86 therefore imposes only a certain degree of harmonisation since it allows for differences between Member States regarding the opportunities for members of a refugee’s extended family to enter and reside. A comparative analysis of national laws reveals that some Member States have decided to implement that provision while others have elected not to do so.

34.That said, the fact that Article 10(2) is an optional provision does not mean that Member States have complete freedom in the implementation of that provision to facilitate, as they think fit, the entry and residence of persons falling within the scope of that provision.

35.In particular, it does not constitute grounds for a Member State to depart from the eligibility requirement expressly set out by the EU legislature in that provision.

36.An examination of the wording of Article 10(2) of Directive 2003/86 enables the latitude given to Member States to be precisely defined.

37.Although the EU legislature gives them significant latitude with regard to the implementation of that provision (‘the Member States may authorise family reunification’) (13) and as regards the category of beneficiaries who may benefit from it (‘other family members not referred to in Article 4’), (14) it nevertheless takes particular care to specify the situation in which reunification is possible, that is where the family member concerned is ‘dependent on the refugee’.

38.The EU legislature has therefore taken an approach identical to that adopted in the context of Article 4 of Directive 2003/86 by specifying, for each category of beneficiary, precise and fixed eligibility requirements. Consequently, I think that, in its spirit, the reference to the existence of a relationship of dependency between the family member concerned and the refugee was properly constructed as a provision which was not in the order of wishful thinking but was, on the contrary, binding on the Member States, irrespective of the extent of the discretion allowed to them. The requirement of a relationship of dependency between the family member concerned and the refugee, characterised by the fact the former is dependent on the latter, therefore constitutes, in my view, a prerequisite in order for Article 10(2) of Directive 2003/86 to apply.

39.In the light of those considerations, I consider, therefore, that that provision must be interpreted as meaning that, if a Member State authorises the reunification of the members of a refugee’s extended family, that State is required to comply with the requirement of ‘dependency’, expressly stated by the EU legislature in that provision.

40.Moreover, I consider that the Member States cannot retain their own definition of the concept of ‘dependant’.

41.In connection with the numerous disputes brought before it, the Court has consistently pointed out that that concept is an autonomous concept of EU law which, as such, is to be interpreted uniformly within the territory of all the Member States.

42.The meaning and scope of that concept were defined in the context of Directive 2000/38/EC. (15) In the words of the Court, status as a ‘dependent’ family member ‘is the result of a factual situation characterised by the fact that material support for that family member is provided by the Union citizen who has exercised his right of free movement or by his spouse’. (16) It is apparent from that case-law that the ‘dependent’ family member must be unable, having regard to his financial and social conditions in his country of origin, to support himself, (17) that is to say, to meet his most basic needs. (18)

43.There is, in my view, no reason to adopt another definition of the concept of ‘dependant’ in the context of Directive 2003/86. Indeed, in the light of the wording of the definition given, the status of being ‘dependent’ must be the subject of a specific and objective assessment, irrespective of the nationality of the persons concerned and, consequently, of the status of the sponsor, whether he or she is an EU citizen who is the beneficiary of the rights enshrined by Directive 2004/38 or a third country national, the beneficiary of the rights set out in Directive 2003/86.

44.In its Guidelines, the Commission indeed stated that the criteria laid down by the Court in the context of Directive 2004/38 for assessing a situation of dependency may, mutatis mutandis, serve as guidance to Member States regarding the criteria which they themselves must establish for assessing the nature and duration of the dependency of the person concerned in the context of Article 4(2)(a) of Directive 2003/86. (19)

I consider, therefore, that the requirement of being ‘dependent on the refugee’ set out in Article 10(2) of that directive must be interpreted as meaning that the family member concerned must be in a factual situation characterised by the fact that his or her material support is provided by that refugee.

By its second question, the referring court asks whether Article 10(2) of Directive 2003/86 precludes national legislation such as that at issue in the main proceedings which, in a procedure without any individual examination, makes the family reunification of a refugee’s sibling subject to the condition that that sibling is unable to provide for his or her own needs on account of his or her state of health.

The referring court is uncertain about two essential aspects of the procedure laid down in that provision.

First, it seeks to ascertain whether and, if so, to what extent a Member State can apply the condition of being ‘dependent on the refugee’ restrictively, so that it covers only a specific form of dependency. Secondly, it is also uncertain whether that State may, in addition, dispense with an individual examination of the application for reunification.

Limitation of the scope of Article 10(2) of Directive 2003/86 to a specific form of dependency

The questions from the referring court arise from the fact that the national legislation in question in the main proceedings has the effect of limiting the scope ratione personae of Article 10(2) of Directive 2003/86 because it is designed to exclude from family reunification family members of a refugee who are dependent on that refugee for reasons other than those relating to a deterioration in their state of health, linked, for example, to cultural aspects that are specific to the country of origin or to merely emotional reasons.

In view of the specific nature of Article 10(2) of that directive, I nevertheless see no obstacle in principle to a Member State — which chooses to facilitate the family reunification of the members of a refugee’s extended family where others refuse to do so — being able to limit the scope of that provision to a specific situation or form of dependency.

I consider that the optional nature of that provision gives that Member State a degree of latitude which it does not have under more binding provisions, such as those laid down in Article 10(1) of the directive. That latitude should allow it to enjoy a scope for manoeuvre which it must nonetheless use in a manner which complies with the terms laid down by the EU legislature and which does not undermine the objective of Directive 2003/86 or the effectiveness of that directive. (20)

It seems to me that, in that regard, national legislation such as that at issue in the main proceedings complies with those requirements.

First, a person who is unable to provide for his or her own needs in his or her country of origin on account of his or her state of health is indeed likely to be in a factual situation characterised by the fact that his or her material support is provided by the sponsor and, therefore, to be considered a ‘dependent’ within the meaning of the case-law of the Court of Justice.

Secondly, such legislation, even if it applies restrictively the condition of being ‘dependent on the refugee’, does not undermine either the objective of Directive 2003/86 or the effectiveness of the provision at issue. In fact, it seeks ultimately to facilitate the family reunification of third country nationals and, in particular, refugees, even if it does not cover all situations in which the members of a refugee’s extended family are dependent on him.

I should point out, once again, that Directive 2003/86 does not require the Member States to grant applications for entry and residence submitted by members of a refugee’s extended family who are dependent on him. Moreover, some Member States, such as France or Belgium, have not implemented the provision at issue.

In those circumstances, I am convinced that it is necessary to leave a certain latitude to those Member States which consider that it is possible, appropriate or desirable to facilitate the reunification of a limited number of beneficiaries. A comparative analysis of the national legislations shows how cautiously the Member States proceed, usually making family reunification of members of a refugee’s extended family subject to restrictive conditions linked to dependency. (21) If those Member States were required to apply the condition of being ‘dependent on the refugee’ broadly, so as to cover any form or any situation of dependency in the country of origin, it is highly likely that they would be deterred from implementing that provision, even if they considered it to be possible in respect of a specific category of beneficiaries.

Third and lastly, I consider that the Court’s case-law does not preclude a Member State from being able, in a situation such as that at issue in the main proceedings, to impose a specific requirement relating to the nature of, or reasons for, dependency.

I refer, in that regard, to the Court’s case-law in connection with Directive 2004/38 (22) and, in particular, in the judgment of 5 September 2012, Rahman and Others, (23) which has since been confirmed in the judgment of 26 March 2019, SM (Child placed under the Algerian kafala). (24)

The judgment of 5 September 2012, Rahman and Others (25) concerns the interpretation of Article 3(2)(a) of Directive 2004/38, under which Member States are required to facilitate, in accordance with their national law, the entry and residence of members of the family of an EU citizen who do not fall within the definition of a nuclear family if they are, inter alia, dependent on him or her.

That provision differs from Article 10(2) of Directive 2003/86, since it imposes on Member States a genuine obligation to adopt the measures necessary to facilitate the entry and residence of persons in a situation of dependency. Nevertheless, that obligation is formulated in general terms which give each Member State a very wide discretion, the extent of which is further increased by the express reference to national legislation.

The Court has taken those circumstances into account. It has held that ‘the Member States may, in the exercise of [the discretion they enjoy under the provision in question], lay down in their legislation particular requirements as to the nature and duration of dependence’ in order to ensure ‘in particular’ that the situation of dependence is genuine and not spurious. (26) The Court has nevertheless stipulated that those requirements must be consistent with the normal meaning of the words relating to the dependence referred to in Article 3(2)(a) of Directive 2004/38 and must not deprive that provision of its effectiveness. (27)

In that judgment, the Court thus recognised the right of Member States to exercise their discretion to define, beyond the eligibility criterion expressly laid down by the EU legislature (‘dependent on’), special requirements relating to the situation of dependency of the family member concerned, even though the right to family reunification provided by Directive 2004/38 is conceived as the corollary of the right to freedom of movement of Union citizens and enjoys indirect protection by reason of the potential impairment of the effectiveness of EU citizenship. (28)

However, I would point out that Directive 2003/86 is based not on the provisions relating to EU citizenship and the free movement of persons but on immigration policy. In that connection, the Court has acknowledged that there is no individual right for family members to be allowed to enter the territory of the Member States and that, under Directive 2003/86, the Member States have a certain latitude when examining applications for family reunification and may place conditions on the exercise of that right.

64.In those circumstances, it seems to me, therefore, that the case-law of the Court of Justice does not preclude Member States from being recognised as having discretion allowing them to lay down, in their legislation, specific conditions as to the form or nature of dependency.

65.In the light of those factors, I therefore consider that Article 10(2) of Directive 2003/86 does not in itself preclude national legislation such as that at issue in the main proceedings which makes the right to family reunification of a refugee’s sister subject to the condition that she is dependent on him, on the basis of her inability to provide for her own needs on account of her state of health.

66.However, the question remains of whether that legislation must still comply, when it is implemented, with the need to ensure an individual examination of the application, which must now be examined.

67.In its second question, the referring court stresses the absence of any examination of the applicant’s personal situation in connection with the implementation of the legislation at issue in the main proceedings.

68.If that is the case, it is clear that such legislation does not meet the procedural requirements by which any Member State is bound when examining an application for family reunification under Directive 2003/86, and, in particular, those laid down in Article 17 thereof.

69.That provision requires the Member State to consider the applicant’s situation and conduct an individual examination.

70.I should point out that in the case giving rise to the judgment of 4 March 2010, Chakroun, in which the application for family reunification had been made by the wife of a third country national, the Court held that Article 17 of Directive 2003/86 precludes national legislation which allows the competent national authority to reject an application for family reunification without conducting a specific examination of the applicant’s situation. In that judgment, the Court pointed out that the extent of needs could vary greatly depending on the individual, and it therefore held that national legislation providing for a minimum income level below which all family reunifications would be refused irrespective of ‘an actual examination of the situation of each applicant’, was contrary to that directive.

71.That examination is all the more necessary, in my view, where the application for family reunification is made by the family member of a refugee. Moreover, the EU legislature took care to refer to it in recital 8 of Directive 2003/86 where it requests Member States to pay ‘special attention’ to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there.

72.That special attention should permeate all parts of the procedure.

73.In connection with the proof of the family relationship referred to in Article 11 of Directive 2003/86, the Court has therefore held that the individual assessment required by Article 17 of that directive requires the competent national authority to take account of all the relevant aspects, including the age, gender, education, background and social status not only of the beneficiary of international protection but also of the family member concerned, and to examine objectively the situation in the country of origin and the specific cultural aspects thereof.

74.That analysis is essential in the context of the examination of the relationship of dependency between the family member concerned and the refugee referred to in Article 10(2) of that directive. Indeed, it is clear that dependency and its consequences cannot be assessed in the same way depending on whether the reunification concerns the family of a third country national, who has chosen to migrate to a Member State of the European Union for economic reasons, for example, or the family of a refugee, who has been forced, owing to circumstances in the country of origin, to flee.

75.Accordingly, in the implementation of national legislation such as that at issue in the main proceedings, where the competent national authority is called upon to examine whether the family member concerned can provide for his or her own needs on account of his or her state of health, I consider that the individual assessment required by Article 17 of Directive 2003/86 requires not only that account be taken of the nature and seriousness of the condition from which the family member suffers, and the degree of relationship and level of economic or physical dependence, but also that special attention be paid to the specific situation of that family member in his or her country of origin and the particular difficulties he or she may face owing to his or her gender, age and social status as well as to the economic social and health situation in that country.

76.According to settled case-law, it is also for the competent national authorities to make a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play.

77.In the light of all those considerations, I therefore consider that Article 10(2) of Directive 2003/86, read in conjunction with Article 17 of that directive, does not preclude national legislation such as that at issue in the main proceedings, which makes the family reunification of a refugee’s sister subject to the condition that she is dependent on him, on account of her inability to provide for her own needs owing to her state of health, provided, however, that the competent national authority conducts an individual examination of the application for reunification. That authority must take into account all the relevant circumstances of the case, such as the nature and seriousness of the condition from which the family member suffers, and the degree of relationship and level of economic or physical dependence, and pay special attention to the specific situation of that family member in his or her country of origin and the particular difficulties he or she may face owing to his or her gender, age and social status as well as to the economic, social and health situation in that country.

78.Given the answers which I propose should be given to the first and second questions referred for a preliminary ruling, there is no need, in my view, to reply to the last question that the referring court puts to the Court of Justice.

Conclusion

79.In the light of all the foregoing considerations, I propose that the answer to the questions referred for a preliminary ruling by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) should be as follows:

(1)Article 10(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that, if a Member State authorises the reunification of other family members of a refugee, who are not referred to in Article 4 of that directive, that State is required to comply with the condition that they must be ‘dependent’ on the refugee.

The condition of being ‘dependent on the refugee’ set out in Article 10(2) of Directive 2003/86 must be interpreted as meaning that the family member concerned must be in a factual situation characterised by the fact that his or her material support is provided by that refugee.

Article 10(2) of Directive 2003/86, read in conjunction with Article 17 of that directive, does not preclude national legislation such as that at issue in the main proceedings, which makes the family reunification of a refugee’s sister subject to the condition that she is dependent on him, on account of her inability to provide for her own needs owing to her state of health, provided, however, that the competent national authority conducts an individual examination of the application for reunification.

That authority must take into account all the relevant circumstances of the case, such as the nature and seriousness of the condition from which the family member concerned suffers, and the degree of relationship and level of economic or physical dependence, and pay special attention to the specific situation of that family member in his or her country of origin and the particular difficulties he or she may face owing to his or her gender, age and social status as well as to the economic, social and health situation in that country.

*

Original language: French.

*

OJ 2003 L 251, p. 12.

According to the Court’s case-law, a dependant is a person who is in a situation of real dependence with regard to a third person. See, for example, judgment of 16 January 2014, Reyes (C‑423/12, EU:C:2014:16, paragraph 20 and the case-law cited).

Magyar Közlöny 2007/65.

See judgment of 8 June 2016, Hünnebeck (C‑479/14, EU:C:2016:412, paragraph 36 and the case-law cited).

See, in that regard, Ministry of the Interior, Family reunification of TCNs in the EU: National practices, 2016, in European Migration Network, especially pp. 8 and 9, which is available at the following Internet site: http://emnhungary.hu/sites/default/files/2019-06/family_reunification_study.pdf.

While there is no provision in France or in Belgium concerning the family reunification of members of a refugee’s extended family, this is authorised in Germany where it is necessary in order to avoid ‘excessive difficulties’, for example, in cases of dependency owing to disability or serious illness (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, economic activity and integration of foreign nationals in the territory of the Federal Republic), of 30 July 2004 (BGBl. 2004 I, p. 1950), Part 6. Sections 27-36, especially 29, 30 and 36(2)) and in Italy, where an adult child cannot provide for his or her basic needs due to his or her state of health, which implies total invalidity, or where parents are dependent and do not have other children in the country of origin, or where parents are more than 65 years old, if their other children are unable to provide for their needs for duly established serious health reasons (Decreto legislativo n. 286 — Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative Decree No 286 — Consolidated text of the provisions governing immigration and the status of aliens) of 25 July 1998 (GURI n° 191 of 18 August 1998), Article 29(1)(c) and (d) and Article 29 (bis).

See, in that regard, recital 9 of the directive.

With the exception of the provisions of the third subparagraph of Article 4(1), which does not apply to the children of refugees.

See judgment of 4 March 2010, Chakroun (C‑578/08, EU:C:2010:117, paragraph 43). It seems to me that the case-law of the Court with regard to the interpretation of Article 4(1) of Directive 2003/86 (third country nationals) can be transposed, by analogy, to the interpretation of Article 10(1) of that directive (refugees). Indeed, in that latter provision, the EU legislature expressly refers to Article 4 of that directive. I would also observe that recital 9 of Directive 2003/86 makes no distinction depending on whether or not the third country national is a beneficiary of international protection.

See judgment of 13 March 2019, E. (C‑635/17, EU:C:2019:192 paragraph 46 and the case-law cited).

Emphasis added.

Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

See judgment of 16 January 2014, Reyes (C‑423/12, EU:C:2014:16, paragraph 21 and the case-law cited).

(18) See judgment of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218, paragraph 92), in which the Court held that the most basic needs included inter alia food, personal hygiene and a place to live.

(19) Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification (COM (2014) 210 final).

(20) See judgment of 13 March 2019, E. (C‑635/17, EU:C:2019:192, paragraph 53 and the case-law cited).

(21) See footnote 7 of this Opinion.

(22) I do not believe that the case-law established by the Court in the judgment of 16 January 2014, Reyes (C 423/12, EU:C:2014:16) is relevant to the present case. It is true that the Court held in paragraph 23 of that judgment that ‘there is no need to determine the reasons for [the] dependence or therefore for the recourse to [material support from the sponsor]’. However, the question referred related not to the definition of the family members ‘dependent’ on the sponsor but to the requirements which Member States were able to impose regarding the burden of proof.

(23) C‑83/11, EU:C:2012:519.

(24) C‑129/18, EU:C:2019:248.

(25) C‑83/11, EU:C:2012:519.

(26) Judgment of 5 September 2012, Rahman and Others (C‑83/11, EU:C:2012:519, paragraph 38).

(27) Judgment of 5 September 2012, Rahman and Others (C‑83/11, EU:C:2012:519, paragraph 39) and judgment of 26 March 2019, SM(Child placed under Algerian kafala) (C‑129/18, EU:C:2019:248, paragraph 63).

(28) In the judgment of 16 January 2014, Reyes (C‑423/12, EU:C:2014:16), the Court pointed out that provisions, such as Directive 2004/38, enshrine the free movement of Union citizens, which constitutes one of the foundations of the European Union, must be construed broadly (paragraph 23 and the case-law cited). The Court assumes, in fact, that a Union citizen may be deterred from moving from one Member State to another if he or she cannot be accompanied by the members of his or her family.

(29) Directive 2003/86 was adopted on the basis of Article 63(3)(a) EC (now Article 79(2)(a) TFEU), falling under Title IV ‘Visas, asylum, immigration and other policies related to free movement of persons’ (now Title V ‘Area of freedom, security and justice’).

(30) See, to that effect, judgments of 27 June 2006, Parliament v Council (C‑540/03, EU:C:2006:429, paragraph 59), and of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 79).

(31) See, in that regard, point 7.4. of the Commission Guidelines and judgment of 13 March 2019, E. (C‑635/17, EU:C:2019:192).

paragraph 58 and the case-law cited).

(32)

C‑578/08, EU:C:2010:117.

(33) Judgment of 4 March 2010, Chakroun (C‑578/08, EU:C:2010:117, paragraph 48).

(34) See judgment of 13 March 2019, E. (C‑635/17, EU:C:2019:192, paragraph 63), in which the issue was the difficulties encountered by the sponsor, a refugee of Eritrean origin, in establishing the existence of a family relationship with a minor.

(35) Judgments of 13 March 2019, E. (C‑635/17, EU:C:2019:192, paragraph 57 and the case-law cited) and 26 March 2019, SM(Child placed under Algerian kafala) (C‑129/18, EU:C:2019:248, paragraph 68 and the case-law cited).