Provisional text

delivered on 20 April 2023 (1)

Case C-374/22

XXX

Commissaire général aux réfugiés et aux apatrides

(Request for a preliminary ruling from the Conseil d’État (Belgium))

( Reference for a preliminary ruling – Minor child refugees – Directive 2011/95/EU – Application for international protection as a derived right submitted by the father – Refusal – Article 23 – Conditions of access to the benefits provided for family members – Definition – Requirement that the refugee’s family already existed in the country of origin – Direct effect – Charter of Fundamental Rights of the European Union – Articles 7, 18 and 24 of the Charter – Equal treatment – Effectiveness of international protection – Maintaining family unity )

1.‘For refugees and those who seek to protect them, the right to family unity implies a right to family reunification in a country of asylum, because refugees cannot safely return to their countries of origin in order to enjoy the right to family life there. The integrity of the refugee family is both a legal right and a humanitarian principle; it is also an essential framework of protection and a key to the success of durable solutions for refugees that can restore to them something approximating a normal life’. (2) One of the key questions raised by the present case is whether it is possible to limit enjoyment of such a right only to families of refugees which already existed in the country of origin.

2.That question is delicate in more than one respect: first of all, because such a limitation appears to be the express choice of the EU legislature; second, because the EU legislation applicable to refugees is constantly fluctuating between the definition of fundamental safeguards to be accorded to refugees who have been made particularly vulnerable by the migratory journeys which they have undergone, and the desire of the Member States to contain migration flows; (3) and lastly, because the specific features of the dispute in the main proceedings might result in departure from the link thought to be consubstantial between the concept of displacement and refugee status, since the children to which refugee status has been granted were born in Belgium of parents who met in that Member State.

3.Recitals 18 and 19 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (‘Directive 2011/95’) (4) are worded as follows:

‘(18) “The best interests of the child” should be a primary consideration of Member States when implementing this Directive, in line with the 1989 United Nations Convention on the Rights of the Child. In assessing the best interests of the child, Member States should in particular take due account of the principle of family unity, the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity.

(19) It is necessary to broaden the notion of family members, taking into account the different particular circumstances of dependency and the special attention to be paid to the best interests of the child.’

4.Recital 38 of Directive 2011/95 states that ‘when deciding on entitlements to the benefits included in this Directive, Member States should take due account of the best interests of the child, as well as of the particular circumstances of the dependency on the beneficiary of international protection of close relatives who are already present in the Member State and who are not family members of that beneficiary. In exceptional circumstances, where the close relative of the beneficiary of international protection is a married minor but not accompanied by his or her spouse, the best interests of the minor may be seen to lie with his or her original family.’

5.Article 2(j) of Directive 2011/95, entitled ‘Definitions’, provides:

‘For the purposes of this Directive, the following definitions shall apply:

(j) “family members” means, in so far as the family already existed in the country of origin, the following members of the family of the beneficiary of international protection who are present in the same Member State in relation to the application for international protection:

– the spouse of the beneficiary of international protection or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals,

– the minor children of the couples referred to in the first indent or of the beneficiary of international protection, on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law,

– the father, mother or another adult responsible for the beneficiary of international protection whether by law or by the practice of the Member State concerned, when that beneficiary is a minor and unmarried’.

6.Article 3, entitled ‘More favourable standards’, of Directive 2011/95, provides that ‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.’

7.Article 20(5) of Directive 2011/95, contained in Chapter VII entitled ‘Content of international protection’, states that ‘the best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Chapter that involve minors.’

8.Article 23 of that directive, which is also contained in Chapter VII, is entitled ‘Maintaining family unity’. It reads as follows:

‘1. Member States shall ensure that family unity can be maintained.

4. Notwithstanding paragraphs 1 and 2, Member States may refuse, reduce or withdraw the benefits referred to therein for reasons of national security or public order.

5. Member States may decide that this Article also applies to other close relatives who lived together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of international protection at that time.’

9.Articles 24 to 35 of Directive 2011/95 list the benefits relating to the right of residence, access to employment, access to education and procedures for recognition of qualifications, social welfare, healthcare, unaccompanied minors, access to accommodation, freedom of movement within the Member State, access to integration facilities and, lastly, repatriation.

B. Belgian law

10.Article 9<i>bis</i>, contained in Chapter III (‘Residence of more than three months’) of Title I (‘General provisions’) of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to Belgian territory, residence, settlement and removal of foreign nationals), (5) as amended, in particular, by the loi du 8 juillet 2011 (Law of 8 July 2011) (‘the amended Law of 1980’), provides:

‘1 In exceptional circumstances, and provided that the foreign national has an identity document, the foreign national may apply for a residence permit to the mayor of the municipality where he or she is residing, who will forward it to the Minister or his or her representative. Where the Minister or his or her representative grants the residence permit, it will, in that case, be issued in Belgium.

The condition that the foreign national has an identity document is not applicable:

– to an asylum applicant whose asylum application has not been the subject of a final decision or who has lodged an administrative appeal on a point of law declared admissible …;

– to a foreign national who validly demonstrates the impossibility of his or her obtaining the required identity document in Belgium.

1. evidence which has already been relied on in support of an asylum application within the meaning of Articles 50, 50<i>bis</i>, 50<i>ter</i> and 51, and which has been rejected by the asylum authorities, except for evidence rejected because it is extraneous to the criteria of the Geneva Convention as determined in Article 48(3) and to the criteria provided for in Article 48(4) in respect of subsidiary protection, or because it does not fall within the scope of those authorities;

4. evidence which has been relied on in the context of an application for a residence permit on the basis of Article 9<i>ter</i>.

11.Article 10(1)(7), contained in Chapter III of Title I of the amended Law of 1980, provides:

‘Subject to Articles 9 and 12, the following persons shall be granted leave to reside in the Kingdom for more than three months as of right: …

7. The father and mother of a foreign national recognised as a refugee within the meaning of Article 48(3) or benefiting from subsidiary protection who are coming to live with the latter, provided that he or she is under 18 years of age and entered the Kingdom unaccompanied by an adult foreign national responsible for him or her by law and was not effectively taken into the care of such a person thereafter, or was left unaccompanied after he or she entered the Kingdom. …’

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

12.XXX is a Guinean national. He arrived in Belgium in 2007. He submitted an initial application for international protection, which was rejected, followed by two other applications, in 2010 and 2011, which the Belgian authorities refused to consider. On 29 January 2019, XXX submitted a fourth application for international protection in which he now claimed to be the father of two children born in Belgium in 2016 and 2018, at least one of whom was recognised as a refugee, (6) like their mother. (7) That fourth application was rejected as being inadmissible on 2 October 2019. On 15 October 2019, XXX brought an action against that decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium), which dismissed it on 17 April 2020.

13.XXX then brought an appeal on a point of law before the referring court. He submits before it, in essence, that, as the father of a child refugee, he should be regarded as a ‘family member’ within the meaning of Directive 2011/95 and be granted international protection. The defendant in the main proceedings submits that Directive 2011/95 does not lay down an obligation to grant international protection to family members who do not individually qualify for it. Article 23 of Directive 2011/95 merely requires Member States to organise access to the benefits provided for in Articles 24 to 35 of that directive, but such access is limited to certain family members on condition that the family already existed in the State of origin, which is not the case with the family of XXX.

14.The referring court is uncertain whether Directive 2011/95 imposes the obligation on Member States to recognise family members of a refugee as beneficiaries of international protection solely on the ground that they are family members. It also raises the question of the applicability to the applicant in the main proceedings of Article 23(2) of Directive 2011/95, even though it appears from the wording of that article that that provision is applicable only to family members of the beneficiary of international protection as defined in Article 2(j) of that directive. XXX is not covered by that definition, it being understood that, although he is the father of at least one child recognised as a refugee, the applicant in the main proceedings does not deny that the family to which that child belongs was not formed in the country of origin but in Belgium. However, XXX maintains that the best interests of the child require that the concept of ‘family members’ be interpreted broadly, a fortiori in a situation of dependency such as that which characterises the relationship between XXX and his children. XXX claimed, in his fourth application for international protection, that the mother of the children suffers from serious psychological problems and that, therefore, XXX had to care for his children.

15.If the Court were to find that Article 23 of Directive 2011/95 is applicable to the situation in the main proceedings, XXX submits that that provision has not been transposed into Belgian law and that since it is a provision which has direct effect, it requires that XXX be granted international protection. The referring court considers that even if it has direct effect, Article 23 of Directive 2011/95 does not appear to require that XXX be granted international protection when XXX does not qualify for it. In particular, Article 23 of Directive 2011/95, read in conjunction with Article 24 thereof, only allows XXX to be able to be obtain a residence permit. The referring court therefore considers it necessary to refer the question to the Court as to the possible direct effect of Article 23 of Directive 2011/95 and the consequences resulting from it. The referring court also mentions the applicant’s argument in the main proceedings that the best interests of the child referred to in Article 20 of Directive 2011/95 and respect for family life dictate that Article 23 of Directive 2011/95 be interpreted as requiring that the father of children recognised as refugees in Belgium and born there be granted international protection even if he does not himself qualify for such protection.

16.In those circumstances the Conseil d’État (Council of State, Belgium) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Are Article 2(j) and Article 23 of [Directive 2011/95] to be interpreted as applying to the father of two children who were born in Belgium and who have been recognised as refugees there, whereas Article 2(j) of Directive 2011/95 specifies that the family members of the beneficiary of international protection who are covered by Directive 2011/95 are such “in so far as the family already existed in the country of origin”?

(2) Does the fact relied on by [the applicant in the main proceedings] that his children are dependent on him and that, according to [him], the best interests of his children require that international protection be granted to him, mean, in the light of recitals 18, 19 and 38 of Directive 2011/95, that the concept of family members of the beneficiary of international protection, covered by Directive 2011/95, is extended to a family that did not exist in the country of origin?

(3) If the first two questions referred for a preliminary ruling are answered in the affirmative, can Article 23 of Directive 2011/95, which has not been transposed into Belgian law to provide for the granting of a residence permit or international protection to the father of children who were recognised as refugees in Belgium and who were born there, have direct effect?

(4) If so, does Article 23 of Directive 2011/95 confer, in the absence of transposition, on the father of children recognised as refugees in Belgium and born there the right to claim the benefits referred to in Articles 24 to 35 [of that directive], including a residence permit allowing him to reside legally in Belgium with his family, or the right to obtain international protection even if the father does not individually qualify for such protection?

(5) Does the effectiveness of Article 23 of [Directive 2011/95], read in the light of Articles 7, 18 and 24 of the Charter of Fundamental Rights of the European Union [(“the Charter”)] and recitals 18, 19 and 38 of [that directive], require Member States that have not amended their national laws so that family members (within the meaning of Article 2(j) of that directive or in respect of whom there are particular circumstances of dependency) of the beneficiary of such status may, if they do not individually qualify for such status, claim certain benefits, to grant those family members the right to derivative refugee status so that they may claim those benefits in order to maintain family unity?

(6) Does Article 23 of [Directive 2011/95], read in the light of Articles 7, 18 and 24 of the [Charter] and recitals 18, 19 and 38 of [that directive], require Member States that have not amended their national laws, so that the parents of a recognised refugee can claim the benefits listed in Articles 24 to 35 of the directive, to [allow those parents to] enjoy derivative international protection in order to give primary consideration to the best interests of the child and to ensure the effectiveness of that child’s refugee status?’

III. Analysis

17.The questions for a preliminary ruling are addressed to the Court in a factual context involving a father of children born in Belgium, with at least one of those children enjoying refugee status, who are present on Belgian territory with their mother, who is also a refugee; it is also common ground that, first, the family so formed did not exist in the State of origin but was formed in the host State and, second, the father does not himself appear to qualify for international protection. The proceedings in the main case concern the father’s challenge to the Belgian authorities’ refusal to grant him such protection, even as a derived right.

18.It is also apparent from the file submitted to the Court, and in particular from the written observations of XXX, that the mother has also been recognised as a refugee, in particular, on the ground that her daughter needs to be protected from excision and the mother suffers from serious mental health problems.

19.The present case therefore raises the question whether Directive 2011/95 offers that father of a family any protection or any benefit which might enable him to legally reside in Belgium with his refugee children. That question arises in a fluid national context. It appears to be common ground that, until 2018, the Commissariat aux réfugiés et aux apatrides (Commissioner-General for Refugees and Stateless Persons, Belgium) automatically granted to the parent of a refugee child derivative status similar to that of the child, regardless of whether the parent qualified for international protection. In 2019, the Commissariat aux réfugiés et aux apatrides put an end to that practice. The parent of a refugee who is refused international protection because he or she does not qualify for it must now submit an application for legalisation on humanitarian grounds on the basis of Article 9<i>bis</i> of the amended Law of 1980. According to the applicant in the main proceedings, that procedure of ordinary law is subject to specific admissibility conditions and offers few guarantees, in particular in terms of time.

20.The wording of the questions for a preliminary ruling alternates between mentioning granting of international recognition to family members in XXX’s situation and mentioning access to the benefits provided for in Articles 24 to 35 of Directive 2011/95.

21.I must immediately clarify one point in that regard. As the Court has held, Directive 2011/95 does not provide for the extension, as a derived right, of refugee status or subsidiary protection status to the family members of a person to whom that status is granted and who, individually, do not satisfy the conditions for granting that status; Article 23 of that directive merely requires the Member States to amend their national laws so that those family members are entitled, in accordance with national procedures and in so far as that is compatible with the personal legal status of those family members, to certain advantages which include, inter alia, the grant of a residence permit, access to employment or access to education. (8)

22.In so far as Article 3 of Directive 2011/95 allows Member States to adopt more favourable provisions for the purpose of deciding which persons qualify for refugee status or the persons who may benefit from subsidiary protection and for the purpose of determining the content of international protection, provided that those provisions are compatible with Directive 2011/95, the Court has held in particular, after a rigorous examination, that that directive does not preclude a Member State from granting, under more favourable national provisions, as a derived right and for the purpose of maintaining family unity, refugee status to the minor child of a third-country national who has been recognised as having that status under the system established by that directive, including in the case where that child was born in the territory of that Member State and, through that child’s other parent, has the nationality of another third country in which he or she would not be at risk of persecution, provided that the child is not caught by a ground for exclusion referred to in Article 12(2) of that directive and that the child is not, through his or her nationality or any other element characterising his or her personal legal status, entitled to better treatment in that Member State than that resulting from the grant of refugee status. (9) Therefore, it is possible to grant derived international protection under Directive 2011/95, as a more favourable measure, under the twofold condition that it is the result of a choice made by the Member State concerned and that it is, in particular, compatible with the provisions of Directive 2011/95 and consistent with the rationale of international protection.

23.However, it is apparent from the file submitted to the Court that no national provision or practice more favourable than what is provided for in Directive 2011/95 is currently being applied in Belgium to a situation such as that of XXX. On the contrary, it appears that the Commissariat aux réfugiés et aux apatrides wished to put an end to its previous, more favourable, practice.

24.In those circumstances, in the absence of the Member State’s willingness to establish a more favourable regime and whatever interpretation is adopted of the provisions of Directive 2011/95 at the heart of this case, it will not be possible for XXX to be granted refugee status as a derived right.

25.However, as the Court has pointed out, the grant of such status is not the only form of protection offered by Directive 2011/95, since it also guarantees to family members of the beneficiary of international protection access to benefits. Therefore, the questions referred to the Court for a preliminary ruling must be understood as seeking to determine whether XXX can qualify for any of the benefits provided for in Articles 24 to 35 of Directive 2011/95.

26.Moreover, for the purposes of the reasoning to follow, it should be recalled that the provisions of Directive 2011/95 must be interpreted, according to settled case-law, not only in the light of its general scheme and purpose, in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU, but also, as is apparent from recital 16 of that directive, in a manner consistent with the rights recognised by the Charter, (10) in particular Articles 7, 18 and 24 thereof.

27.It is with this requirement in mind that I shall now begin to examine the questions referred.

B. The first two questions referred

28.Like the Commission, I shall consider together the first two questions, by which the referring court seeks to ascertain whether Articles 2(j) and 23 of Directive 2011/95 can be interpreted as meaning that the father, a national of a third State, of children benefiting from refugee status and born in Belgium, living in a family formed in that State, must be regarded as a ‘family member’ within the meaning of that directive. The referring court asks what effect the female child’s dependence on her father and a reading of recitals 18, 19 and 38 of Directive 2001/95 might have on the interpretation to be given to the concept of ‘family members’ within the meaning of that directive.

29.According to the settled case-law of the Court, in accordance with the need for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question. (11)

30.From a literal viewpoint, Article 23(1) of Directive 2011/95 provides that Member States must ensure that family unity can be maintained. Paragraph 2 of Article 23 states that those States ‘shall ensure that family members of the beneficiary of international protection who do not individually qualify for such protection are entitled to claim the benefits referred to in Articles 24 to 35, in accordance with national procedures and as far as is compatible with the personal legal status of the family member’. In order to determine the scope of Article 23(2), recourse must be had to Article 2(j) of the directive, which states that ‘for the purposes of this Directive, … “family members” means, in so far as the family already existed in the country of origin, the following members of the family of the beneficiary of international protection who are present in the same Member State in relation to the application for international protection: … the father, mother or another adult responsible for the beneficiary of international protection whether by law or by the practice of the Member State concerned, when that beneficiary is a minor and unmarried’.

31.It is, therefore, absolutely clear from the wording of Article 2(j) of Directive 2011/95 that, within the meaning of that directive, family members are regarded as such only in so far as the family already existed in the country of origin.

32.This seems to be borne out by a contextual analysis, inasmuch as Article 23(5) of Directive 2011/95 allows the Member States to decide that Article 23 also applies to close relatives ‘who lived together as part of the family at the time of leaving the country of origin’. (12) Recital 16 of that directive also mentions applicants for asylum and ‘their accompanying family members’. (13)

33.That literal analysis is borne out by a teleological analysis, although maintaining family unity is not the main objective of Directive 2011/95. (14) The Court has already held that the rationale of Article 23 of Directive 2011/95 is ‘to enable the beneficiary of international protection to enjoy the rights which that protection confers on him or her while maintaining the unity of that person’s family in the territory of the host Member State. (15) Since maintaining family unity is at issue, the family therefore already existed in principle prior to the move to the host Member State (16) and therefore the members of the already established family will, where applicable, qualify for the benefits provided for in Articles 24 to 35 of Directive 2011/95. (17) The difficulty in the present case lies in the fact that the refugee children have not moved.

34.Given that very clear guidance on interpretation, neither reliance on the relationship of dependency between the children recognised as refugees and their father, nor a reading of recitals 18, 19 and 38 of Directive 2011/95, deprived as they are of binding force, are such as to refute that interpretation.

35.

First, the children’s state of dependency on their father cannot, at this stage of the analysis, have the effect of amending what the EU legislature has clearly stated, that is to say that, in order to be considered as family members within the meaning of Article 23(2) of Directive 2011/95, that family must, among other conditions, have already existed in the State of origin. The state of dependency is intrinsically what fundamentally characterises the relationship between any child and its parents and yet that has not prevented the EU legislature from protecting that relationship on the basis of Article 23(2) of Directive 2011/95 only if had already been formed before its arrival in the territory of the host country. Even though the Court’s case-law requires that the provisions of secondary law which aim to facilitate the exercise of fundamental rights be construed broadly, that requirement for a broad interpretation cannot justify an interpretation which runs counter to the wording of those provisions. (18)

36.Second, recital 18 of Directive 2011/95 is a reminder that the best interests of the child are a primary consideration which should guide Member States in their individual decision-making process. Nonetheless, those interests must be taken into account within the limits laid down by the EU legislature in Article 2(j) of Directive 2011/95.

37.As regards recital 19 of that directive, the need to broaden the notion of ‘family members’ to which it refers must be understood in the historical context surrounding the adoption of Directive 2011/95. That directive recast Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. (19) That directive also defined family members by reference to the family which already existed in the country of origin. (20) Recital 19 of Directive 2011/95 must be understood as being merely an explanation of the addition of a third indent to the provision defining family members, (21) which broadens the notion of ‘family members’ to which that recital refers.

38.As regards recital 38 of Directive 2011/95, it is, in my view, directed at all situations of dependency of close relatives on the beneficiary of international protection. I find it difficult to see how reliance on that recital might support the argument of XXX when he alleges that the situation at issue in the main proceedings is characterised precisely by the dependency of his refugee children on him, and not vice versa. Although that recital also contains a restatement of the obligation of Member States to take into account the best interests of the child, that restatement cannot justify an interpretation departing from the very clear wording of Article 2(j) of that directive.

39.Lastly, the interpretation proposed in point 31 of the present Opinion is also reflected in the Court’s case-law. Thus, the Court has already held that the grant of the benefits referred to in Articles 24 to 35 of Directive 2011/95 to the family members of the beneficiary of international protection ‘requires three conditions to be satisfied, namely, first, that the person is a family member within the meaning of Article 2(j) of that directive, second, that that family member does not individually qualify for international protection and, third, that it is compatible with the personal legal status of the family member concerned’, (22) thereby clearly confirming the link between the concept of ‘family members’, as referred to in Article 23 of Directive 2011/95, and Article 2(j) of that directive, the purpose of which is, precisely, to define that concept. The Court had held even more clearly some months earlier that it follows from a combined reading of those two provisions that ‘the obligation on the Member States to provide for access [to the benefits referred to in Article 23(2) of Directive 2011/95] does not extend to the children of a beneficiary of international protection who were born in the host Member State to a family based in that Member State’. (23)

40.Therefore, Article 23(2) of Directive 2011/95, read in conjunction with Article 2(j) of that directive, must be interpreted as meaning that, in principle, the concept of ‘family members’ presupposes that the family already existed in the country of origin.

41.The third question is asked only in the event that the first two questions are answered in the affirmative. Should the Court rule to that effect, it must now be determined whether Article 23 of Directive 2011/95 can have direct effect, since the referring court stated, on its sole responsibility, that that provision had not been transposed into Belgian law.

42.It is apparent from the Court’s settled case-law that whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly. (24) In this respect, the nature, general scheme and wording of the provision in question must be considered. A provision of EU law is, first, unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States and, second, sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms. (25) Even though a directive leaves the Member States a degree of latitude when they adopt rules in order to implement it, a provision of that directive may be regarded as unconditional and precise where it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it. (26)

43.Therefore, it must now be examined whether Article 23 of Directive 2011/95 appears, so far as its subject matter is concerned, unconditional and sufficiently precise to be able to be relied on by an individual against a Member State before the courts of that Member State.

44.The wording of the third question relates, without distinguishing between its various components, to the whole of Article 23 of Directive 2011/95. Since the situation of XXX is not covered by Article 23(5) of Directive 2011/95, I shall immediately exclude that paragraph from the scope of this analysis.

45.Paragraph 1 of Article 23, which states that ‘Member States shall ensure that family unity can be maintained’, does not, in my view, have the characteristics essential for it to be recognised as having direct effect. Like the Commission, (27) I consider that it is worded in too general terms to be able to be regarded as ‘sufficiently precise’ within the meaning of the case-law stated in point 42 of the present Opinion. (28)

46.It is though apparent from the internal logic of Article 23 of Directive 2011/95 that paragraph 2 thereof states what is expected of Member States with regard to maintaining the family unity of beneficiaries of international protection with their family members as defined in Directive 2011/95. That paragraph provides that those family members ‘who do not individually qualify for such protection are entitled to claim the benefits referred to in Articles 24 to 35, in accordance with national procedures and as far as is compatible with the personal legal status of the family member’.

47.Paragraph 2 sets out, clearly in my view, an obligation on Member States to organise the family members’ access to the benefits referred to in Articles 24 to 35 of Directive 2011/95. Family members covered by Article 23(2) of that directive must, therefore, be able to claim, in accordance with the national procedures organised for that purpose, a residence permit (Article 24), travel documents (Article 25), access to employment (Article 26), access to education (Article 27), access to procedures for recognition of qualifications (Article 28), social welfare (Article 29), healthcare (Article 30), protection measures for unaccompanied minors (Article 31), access to accommodation (Article 32), freedom of movement within the host Member State (Article 33), access to integration facilities (Article 34) and assistance with repatriation (Article 35).

48.It might be objected, first, that, the obligations imposed in Article 23(2) of Directive 2011/95 do not follow merely from a reading of it, since the wording of that provision would have to be read in conjunction with one of the rights referred to in Articles 24 to 35 of that directive and, second, that the very wording of that article, in that it establishes a certain number of restrictions on its scope ratione personae, would deprive it of the unconditional nature necessary for recognition of a direct effect.

49.As regards the first objection, Article 23(2) of Directive 2011/95 does not impose automatic access to the benefits listed in Articles 24 to 35 of the directive but requires that a procedure be made available to eligible family members for claiming a certain number of benefits. Article 23(2) of Directive 2011/95 is an autonomous provision which is a precondition for recognition of entitlement to the benefits referred to in Articles 24 to 35 of that directive.

50.As regards the second objection, I noted above that even a provision leaving the Member States scope for discretion in determining the procedures for its implementation may be recognised as having direct effect provided that it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved which is not accompanied by any condition for the application of the rule laid down. Article 23(2) of Directive 2011/95 leaves the Member States scope for discretion in organising or establishing their procedures (freedom of means) for enabling the persons targeted to be able to claim (required result) the benefits referred to in Articles 24 to 35 of the directive. (29) From that point of view alone, Article 23(2) of the directive does not appear to me to be conditional.

51.Moreover, statements regarding its scope ratione materiae cannot be interpreted as conditions for the application of the rule laid down, within the meaning of the abovementioned case-law. It is true that, in order to be able to claim those benefits, the individual must be, first, a family member of the beneficiary of international protection within the meaning of Article 2(j) of Directive 2011/95 who, second, does not individually qualify for such protection, and access to the mentioned benefits must be offered to him, third, only in as far as is compatible with his personal legal status. In connection with that final point, the Court speaks of a ‘reservation’ and not a condition. (30) First, the existence of a reservation does not, per se, preclude direct effect. (31) Second, that ‘reservation’ relates to the scope ratione personae of Article 23(2) of Directive 2011/95, which is defined further by Article 23(3) of Directive 2011/95. (32) In my view, the question of determining the personal scope of a provision cannot be confused with the question of its direct effect. (33)

52.Lastly, Article 23(4) of Directive 2011/95 allows Member States to refuse, reduce or withdraw the benefits provided for in Articles 24 to 35 of that directive for reasons of national security or public order. That reservation is subject to judicial control and the possibility for Member States of relying on it does not preclude the view that Article 23(2) of Directive 2011/95 confers on individuals rights which they may enforce in the national courts and which the latter must protect. (34)

53.Ultimately, the conditions for direct effect are now well established in the case-law and the question before us here is whether Article 23(2) of Directive 2011/95 is sufficiently operational (35) to be applied by a national court. That is what matters: ‘the clarity, precision, unconditional nature, completeness or perfection of the rule and its lack of dependence on discretionary implementing measures are in that respect merely aspects of one and the same characteristic feature which that rule must exhibit, namely it must be capable of being applied by a court to a specific case’. (36) It follows from my analysis that, in my view, Article 23(2) of Directive 2011/95 is sufficiently operational to be able to be directly relied on before the national court which is able to understand what the EU legislature intended to impose on the Member States.

54.Therefore, it follows from my analysis that Article 23(2) of Directive 2011/95, in that it imposes the obligation on Member States to organise access to the benefits referred to in Articles 24 to 35 of that directive, has direct effect and may be relied on by individuals before national courts against a Member State which has transposed it incorrectly or not transposed it.

55.The fourth question is clear from the grounds of the request for a preliminary ruling (37) that this question does not ask the Court to restate its traditional case-law concerning the consequences of recognising the direct effect of a provision in the national legal order (38) but arises from the dispute between the applicant in the main proceedings and the Belgian State concerning the material scope of Article 23(2) of Directive 2011/95. XXX argues that the amended Law of 1980 should be interpreted in accordance with Article 23 of Directive 2011/95 and that, therefore, the Belgian authorities should have granted him international protection. The referring court considers that that is not the purpose of that provision and that, moreover an interpretation of national law in conformity with that directive would result in an interpretation contra legem.

56.For the reasons set out in point 21 et seq. of the present Opinion, it must be borne in mind, first, that Directive 2011/95 does not provide for the extension as a derived right of refugee status to family members of a person benefiting from such status where those members do not individually qualify for that status and, second, that Article 23(2) of Directive 2011/95 allows persons falling within its scope to claim access to the benefits provided for in Articles 24 to 35 of Directive 2011/95. (39)

57.In the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Therefore, the Court may sometimes have to reformulate the questions referred to it. (40) In view of the manner in which they are worded and the connection between them, I consider that the fifth and sixth questions would gain from being reformulated. In my view, those questions must be understood as meaning that the referring court seeks to determine whether Article 23 of Directive 2011/95, read in the light of Articles 7, 18 and 24 of the Charter, must be interpreted as requiring the Member States, in order to maintain family unity and ensure the effectiveness of the refugee status granted to the child, to grant to the child’s father access to the benefits referred to in Articles 24 to 35 of that directive where that father does not qualify for the grant of international protection and cannot be regarded as a ‘family member’ within the meaning of Article 2(j) and Article 23(2) of Directive 2011/95.

1. Analysis from the father’s viewpoint

58.At this stage of the analysis, I would recall that I proposed that the Court rule that Article 23(2) of Directive 2011/95, read in conjunction with Article 2(j) of that directive, must be interpreted as meaning that the concept of ‘family members’, within the meaning of those provisions, presupposes that the family already existed in the country of origin. Therefore, XXX does not qualify either – according to the Belgian authorities’ assessments – for international protection as such or for access to the benefits that Article 23(2) of Directive 2011/95 reserves for family members of a beneficiary of international protection. Moreover, as I have already stated, (41) Directive 2011/95 also does not provide for the grant of international protection as a derived right. (42)

59.For whatever purpose it may serve, I would add that it appears inconceivable that XXX may benefit from rights based on Directive 2003/86. Although it provides more favourable conditions for refugees as regards reunification with their family members, (43) Member States may confine application of the provisions of Chapter V of Directive 2003/86 – those specifically dedicated to the family reunification of refugees – to refugees whose family relationships predate their entry. (44) The entry and residence, under Directive 2003/86, of relatives in the direct ascending line is an option left to the discretion of Member States and subject to the condition that that relative is dependent on the sponsor (45) unless he or she is an unaccompanied minor, (46) in which case reunification is no longer subject to a margin of discretion on the part of the Member States nor to any condition relating to the fact of being dependent on the minor. (47) However, XXX’s children are not unaccompanied minors. In principle, an application for family reunification is filed when the family members reside outside the territory of the Member State in which the sponsor resides, even though there can be exceptions. (48) XXX is already present in Belgian territory. Since his situation and that of his family are atypical, XXX is not covered by any of the cases which might legitimise his presence in the European Union with his children.

60.There are two essential reasons why XXX’s situation as a member of the family of his minor refugee daughter is not covered by Directive 2011/95 and/or by the provisions of EU secondary law giving specific expression to the right of refugees to family reunification: first, the family into which the minor refugee was born did not exist in the State of origin; second, that child and her family did not move after her birth.

61.However, I would like to draw attention to certain facts which, in my view, justify further analysis. Thus, subject to any confirmation or verification made by the referring court, it follows from my understanding of the file that XXXs daughter was granted refugee status because of the risk of genital mutilation (49) which she would face if she were to return to her parents’ country of nationality – of which she is also a national but where she has never lived since she was born in Belgium – and because the mother, who also has refugee status, suffers from serious psychological problems. Of course, the last fact requires an in-depth examination by the competent national authorities but it cannot be ruled out that a shadow hangs over the future of that child if the mother was unable to assume sole charge of her children. (50) That is how I understand the reference, contained in the sixth question referred, to the ‘effectiveness of [that child’s] refugee status’. Furthermore, the father has been illegally resident in European Union territory for 16 years and can therefore be deported. (51)

62.It is, therefore, necessary to change the perspective and now take the viewpoint of the refugee children, and more particularly the daughter, about whom we have more information, and of the guarantees which EU law offers her with regard to her fundamental rights, as the rules of secondary EU law must be interpreted and applied in a manner consistent with the fundamental rights guaranteed by the Charter. (52)

63.That child, who must now be seven years of age, is not, in principle, able to lead a life independent of the members of her family. (53)

64.Although, as I stated at the beginning of my analysis of the present case, (54) Directive 2011/95 is intended to ensure, before all else, the application of common criteria for the identification of persons in need of international protection and to ensure that a minimum level of benefits is available for those persons in all Member States, the Common European Asylum System, of which Directive 2011/95 forms part and as is stated in recital 3 of that directive, is based on the full and inclusive application of the Geneva Convention and the Protocol and on the guarantee that nobody will be sent back to a place where they again risk being persecuted. (55) The result of formal recognition as a refugee is that the refugee concerned is the beneficiary of international protection for the purposes of that directive, so that he or she is entitled to all the rights and benefits laid down in Chapter VII of Directive 2011/95, which contains rights equivalent to those set out in the Geneva Convention and rights providing greater protection which have no equivalent in that convention. (56) The fact that Member States must take account, when transposing Directive 2011/95, of the primary consideration which is the best interests of the child constitutes a general rule concerning Chapter VII laid down in Article 20(5) of that directive. I note, in that regard, that Article 23 of Directive 2011/95 belongs to that chapter and that its first paragraph obliges Member States to ensure that family unity can be maintained. (57) Like the Commission, I would point out that the wording of that provision is not limited to family members as defined in Article 2(j) of Directive 2011/95.

65.Moreover, the Court has already had occasion to state, like all the international actors of refugee protection, the fundamental importance of family unity, which is an essential right of the refugee. It has also recognised the link which exists between measures to protect the refugee’s family and the rationale of international protection. (58) That right is all the more critical when the refugee is a minor, given his or her state of particular vulnerability. Moreover, the Court has already stated the importance, in particular, of the Convention on the Rights of the Child, (59) Article 9(1) of which provides that ‘States Parties shall ensure that a child shall not be separated from his or her parents against their will’. (60)

66.Directive 2011/95 also pursues the objective of ensuring, in accordance with Article 24(2) of the Charter, that the best interests of the child are a primary consideration for Member States in the application of the directive. (61) As required by Article 20(5) of Directive 2011/95, those interests must be a primary consideration for Member States in the application of Chapter VII of Directive 2011/95. (62) According to settled case-law, Article 7 of the Charter must be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of the Charter, and taking into account the need for a child to maintain on a regular basis a personal relationship with both of his or her parents expressed in Article 24(3) thereof. (63) Specifically, Article 7 and Article 24(2) of the Charter require that, ‘in all actions relating to children, in particular those taken by Member States when applying that directive, the child’s best interests must be a primary consideration’. (64) Those actions may not necessarily be addressed to that minor but have significant consequences for him or her. (65) It follows that the provisions of Directive 2011/95 must be interpreted and applied inter alia in the light of Article 7 and Article 24(2) and (3) of the Charter; this results in the obligation for Member States, when implementing Directive 2011/95, to take due account of the principle of family unity and the minor’s well-being and social development. (66)

67.Essential though it is, the fundamental right to respect for the refugee’s family life is not, contrary to the prohibition of inhuman or degrading treatment laid down in Article 4 of the Charter, (67) an absolute right and can therefore be limited under the conditions laid down in Article 52(1) of the Charter. (68)

68.However, in my view, Article 23(1) of Directive 2011/95, in that it refers to the unity of family life, must be able to be relied on by the applicant and his daughter, (69) since otherwise some tension would arise between that Article 23 of that directive and Article 7 of the Charter, read in conjunction with Article 24 of the Charter. I say this for the following reasons.

69.If XXX cannot claim access to the benefits referred to in Articles 24 to 35 of Directive 2011/95 because of the restrictive definition adopted of the concept of ‘family members’ within the meaning of Article 23(2) read in conjunction with Article 2(j) of that directive, he will end up being forced to leave European Union territory as a result of not being able to legalise his residence in Belgium. At best, he will then leave behind his family, consisting of the mother of his children and his children, including his refugee daughter, which will adversely affect that daughter’s fundamental right to respect for her family life, (70) as protected by Article 7 of the Charter. (71) Certainly such a limitation as defined by Directive 2011/95, in that it restricts access to the benefits only to members of the family which already existed in the State of origin, is indeed provided for by law. It would be more difficult to consider that that limitation respects the essence of that right in that it excludes refugee families established after flight or displacement from their country of origin, on that sole ground. If refugee status can be granted to a child born in the territory of the European Union, I find it difficult to understand why that child’s family would be less worthy of protection solely because it was established after the departure of some of its members from the country of origin, let alone once they have arrived in the host State, when the minor’s state of vulnerability and the child refugee’s needs in terms of protection of his or her family life are as acute as those of a child placed in the same situation but whose family has relocated.

70.That brings us to the question of the proportionality of the limitation. I can obviously well understand that the limitation of access to the benefits provided for in Articles 24 to 35 of Directive 2011/95 is dictated by considerations linked to EU policy on immigration and asylum and that, on that basis alone, it meets an EU objective of general interest. However, in the present case, such a limitation can have totally disproportionate effects because it entails a breach of the principle of equal treatment and a serious risk of affecting the essence of another right, namely the right to asylum, which is also guaranteed by Article 18 of the Charter.

71.On the breach of the principle of equal treatment, I note that the limitation of the definition of ‘family members’ to the family formed before its departure from the country of origin has been considered regrettable. (72) According to the Commissioner for Human Rights, such a limitation fails to ‘appreciate the reality of refugees’ lives. Many refugees spend protracted periods in exile and in flight, and form families in transit, or while residing precariously in their regions of origin before they arrive in Europe. … In some circumstances, differentiating between pre- and post-flight families will violate Article 14 of the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“the ECHR”)] and in all likelihood other equality guarantees, including those under EU law’. (73)

72.I concede that I share the doubts expressed by the Commissioner for Human Rights.

73.In that regard, particular attention might be paid to the judgment of the European Court of Human Rights (‘ECtHR’) delivered in Hode and Abdi v. United Kingdom. (74)

In that case, the applicant had arrived in the United Kingdom in 2004 and had benefited from refugee status from March 2006. In June of the same year, he met the woman who was to become his wife in 2007. The couple had two children, in 2008 and 2011 respectively. As she was a third-country national who did not, herself, benefit from international protection, the spouse applied in 2007 for a visa to join her husband in the United Kingdom. Although her husband was a refugee, he could not qualify under the national rules relating to family reunification of refugees because they only applied to spouses who formed part of the refugee’s family unit before the refugee’s departure from the country of origin. The spouse then applied for leave to enter the United Kingdom as the spouse of a person present and settled in the United Kingdom, which was also refused on the ground that her husband, having only been granted five years’ leave to remain in the United Kingdom, was not a person considered to be ‘present and settled’ in that State within the meaning of the national legislation.

74. After stating that there was no obligation on a State under Article 8 ECHR to respect the choice by married couples of the country of their matrimonial residence, the ECtHR held that, if the domestic legislation confers a right to family reunification on certain categories of immigrants, it must do so in a manner which is compliant with Article 14 ECHR. As a necessary preamble to an examination in the light of Article 14 ECHR, the ECtHR found that the rules on family reunification had obviously affected the family life of the applicants and their children, and that therefore the facts of the case fell within the scope of Article 8 ECHR. (75) The ECtHR also stated that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of Article 14 of the ECHR. (76) Moreover, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (77) Although the ECtHR recognises that the Contracting State enjoys a margin of appreciation, the scope of that margin will vary according to the circumstances, the subject matter and the background. (78)

75. The ECtHR accordingly held that the situation of the applicants, as a refugee who had married after leaving his country of origin and the spouse of such a refugee, could be likened to ‘other status’ within the meaning of Article 14 ECHR and was therefore covered by its scope. (79) Moreover, the Contracting State did not dispute that, under its national legislation, students and workers, on the one hand, and refugees who married before leaving their country of origin, on the other hand, were treated differently from refugees and their spouses whose marriage had been concluded after their departure from the country of origin. (80) The ECtHR held that refugees who married before leaving their country of origin were in an analogous position, as they had also been granted refugee status and their residence was also authorised in the United Kingdom for a limited period and that the only relevant difference was the time at which the marriage took place. (81) The United Kingdom tried to justify such a difference in treatment by the fact that it was obliged to honour its international obligations without, for all that, providing any further incentives for refugees to choose that State as a host State and it argued that this had been a policy decision, which was within its wide margin of appreciation in this area; (82) however, the ECtHR held that it saw no justification for treating refugees who married post-flight differently from those who married pre-flight and that, although, in permitting refugees to be joined by pre-flight spouses, the United Kingdom had honoured its international obligations, where a measure resulted in the different treatment of persons in analogous positions, the fact that it fulfilled the Contracting State’s international obligation could not justify the difference in treatment. (83) The ECtHR therefore found that there had been a violation of Article 14, read in conjunction with Article 8. (84)

76. Accordingly, the fact that XXX’s refugee children cannot benefit from the right to maintenance of family unity as guaranteed by Article 23 of Directive 2011/95 on the sole ground that they do not belong to a family formed in the State of origin could also give rise to some difficulties in the light of Article 20 of the Charter. (85)

77. Lastly, on the serious risk of an adverse effect on the essence of the right to asylum, the impossibility for XXX of relying for his own account on the benefits provided for in Articles 24 to 35 of Directive 2011/95 prolongs the irregularity of his residence in Belgium. Subject to the checks which the referring court will have to make, in the event of a failure on the part of the mother of the minor refugee daughter, it is possible that the relationship of dependency between that child and her father is such that, if the father had to leave the territory, that child would have to follow him. (86) In such a case – admittedly hypothetical but not entirely improbable in the light of the content of the file submitted to the Court – that would be a frontal attack on the child’s right to asylum, as protected by Article 18 of the Charter, (87) thereby precluding that child from effectively enjoying that right. (88)

78. Article 23(1) of Directive 2011/95, as it is worded in general terms, lends itself to an interpretation which guarantees to the father of a minor child refugee who cannot benefit from international protection or rely on Article 23(2) of that directive, on the sole ground that that child’s family did not exist in the State of origin, access to the benefits provided for in Articles 24 to 35 of the directive. Such an interpretation is consistent with the conclusion which the Court reached when holding that ‘the rationale of Article 23 of [Directive 2011/95] is to enable the beneficiary of international protection to enjoy the rights which that protection confers on him or her while maintaining the unity of that person’s family in the territory of the host Member State’. (89)

79. Such access will, however, require some prior checks to be made. First, it must be ensured that there is a real and effective family relationship uniting the father with his child benefiting from refugee status (90) and that there is an intense relationship of dependency. It must be ascertained, in the presence of minors, that maintaining such a relationship with the family member concerned is, in the light of the specific situation of the family concerned, in the child’s best interests. Second, the limitations provided for in Article 23(3) and (4) of Directive 2011/95 are evidently still being applied, and consequently the access to the benefits based on Article 23(1) of that directive will no longer be guaranteed where the father is or would be excluded from the benefit of international protection pursuant to Chapters III and V of Directive 2011/95 or if the Member State considers that such access would be a threat to its national security or public order.

80. Therefore, and for all of the foregoing reasons, Article 23(1) of Directive 2011/95, read in conjunction with Article 20(5) thereof and in the light of Articles 7, 18 and 24(2) and (3) of the Charter, must be interpreted as meaning that a father, who is a third-country national, of refugee children born in the territory of the host Member State into a family which was formed in that territory and who does not, himself, qualify for international protection, must be able to have access to the benefits provided for in Articles 24 to 35 of the directive if that proves to be necessary, in the light of all the particular circumstances specific to the situation of the family concerned, first, to ensure observance of the right to family life of his refugee children and, second, so that his children can continue to enjoy all the rights attached to their refugee status, unless the father falls within the exclusion clauses of Chapters III and V of Directive 2011/95 or he constitutes a threat to the public security or public order of the host Member State.

81. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, Belgium) as follows:

(1) Article 23(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, read in conjunction with Article 2(j) of that directive, must be interpreted as meaning that, in principle, the concept of ‘family members’ presupposes that the family already existed in the country of origin.

Article 23(2) of Directive 2011/95, in that it imposes the obligation on Member States to organise access to the benefits referred to in Articles 24 to 35 of that directive, has direct effect and may be relied on by individuals before national courts against a Member State which has transposed it incorrectly or not transposed it.

Directive 2011/95 does not provide for the extension, as a derived right, of refugee status to the family members of a person to whom that status is granted where those members, individually, do not satisfy the conditions for granting that status. Article 23(2) of Directive 2011/95 allows persons falling within its scope to claim access to the benefits provided for in Articles 24 to 35 of Directive 2011/95.

(2) Article 23(1) of Directive 2011/95, read in conjunction with Article 20(5) thereof and in the light of Articles 7, 18 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a father, who is a third-country national, of refugee children born in the territory of the host Member State into a family which was formed in that territory and who does not, himself, qualify for international protection, must be able to have access to the benefits provided for in Articles 24 to 35 of the directive if that proves to be necessary, in the light of all the particular circumstances specific to the situation of the family concerned, first, to ensure observance of the right to family life of his refugee children and, second, so that his children can continue to enjoy all the rights attached to their refugee status, unless the father falls within the exclusion clauses of Chapters III and V of Directive 2011/95 or he constitutes a threat to the public security or public order of the host Member State.

—

1 Original language: French.

2 Jastram, K., and Newland, K., ‘L’unité de la famille et la protection des réfugiés’ in Feller, E., Türk, V., Nicholson, F. (dir.), La protection des réfugiés en droit international, Larcier, 2008, p. 623.

3 On the need to reconcile protection of fundamental rights with the requirements of migration policy, see, for example, ECtHR, 12 October 2006, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (CE:ECHR:2006:1012JUD001317803, § 81).

4 OJ 2011 L 337, p. 9.

5 Moniteur belge of 31 December 1980, p. 14584.

6 Although it is apparent from the request for a preliminary ruling that the two children of XXX have refugee status, XXX states, in his written observations submitted to the Court, that only his daughter has such status. That lack of factual clarity has no impact on the analysis of this case, since it is, in any event, common ground that at least one of the children of XXX has refugee status. The file shows that the daughter of XXX was recognised as a refugee in Belgium because of the risk of excision to which she would be exposed if she were to be forced to live in Guinea. Should that prove to be necessary for the analysis, particular attention will be paid to that child’s situation.

7 The mother is a Guinean national. She was recognised as a refugee in Belgium in 2017.

8 See judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 36). See also judgment of, Ahmedbekova (C‑652/16, EU:C:2018:801, paragraphs 48 and 68).

9 See judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 62).

10 See judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 27 and the case-law cited).

11 See judgment of 1 August 2022, Bundesrepublik Deutschland (Family reunification with a minor refugee) (C‑273/20 and C‑355/20, EU:C:2022:617, paragraph 34).

12 Emphasis added.

13 Emphasis added.

14 Thus, recital 12 of Directive 2011/95 states that one of that directive’s main objectives is to ensure that all Member States apply common criteria for the identification of persons genuinely in need of international protection and that a minimum level of benefits is available for those persons in all Member States. See also Article 1 of Directive 2011/95. See, lastly, judgments of 19 March 2019, Ibrahim and Others (C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 97) and of 9 September 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraph 30 and the case-law cited).

15 Judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 60). Emphasis added.

16 See, to that effect, Opinion of Advocate General Richard de la Tour in Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:384, point 39) and Opinion of Advocate General Pikamäe in Commissaire général aux réfugiés et aux apatrides (Family unity – Protection already granted) (C‑483/20, EU:C:2021:780, point 39).

17 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12) applies a priori to a more extended family (see Article 2(d) of that directive), although Article 9(2) of that directive allows Member States to confine the benefit of the provisions of the chapter of that directive specifically dedicated to family reunification of refugees to refugees whose family relationships predate their entry into the Member State of refuge.

18 By way of illustration, see judgment of 26 March 2019, SM (Child placed under Algerian kafala) (C‑129/18, EU:C:2019:248, paragraphs 53 to 55).

19 OJ 2004 L 304, p. 12.

20 See Article 2(h) of Directive 2004/83.

21 See, by way of comparison, Article 2(h) of Directive 2004/83 and Article 2(j) of Directive 2011/95.

22 Judgment of 22 February 2022, Commissaire général aux réfugiés et aux apatrides (Family unity – Protection already granted) (C‑483/20, EU:C:2022:103, paragraph 39). See also judgment of 9 December 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraph 43).

23 Judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 37). Emphasis added. The Court never seems to have called into question the condition that the family must already have existed in the country of origin: see, for example, judgment of 9 September 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraphs 32, 43 and 54).

24 See judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 17 and the case-law cited).

25 See judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 18).

26 See judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 19 and the case-law cited).

27 In the light of the answer that it proposes should be given to the first two questions, the Belgian Government considers that there is no need to answer the third question.

28 Although the Court was not asked whether Article 23(1) of Directive 2011/95 was to be recognised as having direct effect, I note that it has already emphasised the general nature of that provision: see judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 43).

29 It is thus apparent from the judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 17) that ‘the right of a State to choose among several possible means of achieving the result required by a directive does not preclude the possibility for individuals of enforcing before the national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone’ (see also judgments of 2 August 1993, Marshall (C‑271/91, EU:C:1993:335, paragraph 37) and of 12 February 2009, Cobelfret (C‑138/07, EU:C:2009:82, paragraph 61)).

30 See judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 48 et seq.).

31 See, for example, judgment of 22 December 2010, Gavieiro and Iglesias Torres (C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 80 et seq.). Even the possibility of derogating from the obligation laid down in the provision with direct effect may not necessarily cast doubt on that effect: see, for example, in connection with Article 31(2) of the Charter, judgment of 6 November 2018, Bauer and Willmeroth (C‑569/16 and C‑570/16, EU:C:2018:871, paragraphs 84 and 85).

32 According to which Article 23(2) of Directive 2011/95 is not applicable where the family member is or would be excluded from international protection pursuant to Chapters III and V.

33 In other words, in order that the untransposed provision of a directive can be relied on by an individual before the national court, that individual’s situation must necessarily fall within the scope of the provision concerned. That is a precondition for the question of the provision’s direct effect being raised, which is quite distinct from the conditions that the provision concerned must fulfil in order to be able to have direct effect.

34 See, by analogy, judgment of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 64).

35 According to the expression used by Advocate General Van Gerven in his Opinion in Banks (C‑128/92, not published, EU:C:1993:860, point 27) which concerns, in other words, the justiciability of the rule (see also, to that effect, the Opinion of Advocate General Bobek in Link Logistik N&N (C‑384/17, EU:C:2018:494, points 69 and 76)).

36 Opinion of Advocate General Van Gerven in Banks (C‑128/92, not published, EU:C:1993:860, point 27).

37 See pp. 12 and 13 of that request.

38 In case of need, however, and as this case concerns a dispute between an individual and a Member State, I refer, for example, amongst abundant case-law, to the judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraphs 35 to 37 and 39).

39 See judgment of 22 February 2022, Commissaire général aux réfugiés et aux apatrides (Family unity – Protection already granted) (C‑483/20, EU:C:2022:103, paragraph 41).

40 Amongst abundant case-law, see judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci (C‑205/15, EU:C:2016:499, paragraph 30 and the case-law cited).

41 See point 21 et seq. of the present Opinion.

42 Reliance on Article 18 of the Charter is not capable of altering that finding, since a requirement that refugee status be granted to members of a refugee’s family who do not qualify for such status does not follow from that article. The same applies to Articles 7 and 24 of the Charter, given that Article 23 of Directive 2011/95 implemented the rights that they establish within the scope of Directive 2011/95. Articles 7 and 24 of the Charter also do not, in themselves, require the grant of refugee status to members of a refugee’s family who do not qualify for such status, as the refugee’s right to respect for family life and the rights of the child can be guaranteed by other means.

43 See judgments of 17 November 2022, Belgische Staat (Married refugee minor) (C‑230/21, EU:C:2022:887, paragraph 41) and of 18 April 2023, Afrin (C‑1/23 PPU, EU:C:2023:296, paragraph 43).

44 See, by way of comparison, on the one hand, recital 6 and Article 2(d) and, on the other, Article 9(2) of Directive 2003/86.

45 See Article 10(2) of Directive 2003/86

46 See Article 10(3) of Directive 2003/86.

47 See judgment of 1 August 2022, Bundesrepublik Deutschland (Family reunification with a minor refugee) (C‑273/20 and C‑355/20, EU:C:2022:617, paragraph 32 and the case-law cited).

48 See Article 5(3) and Article 11 of Directive 2011/95.

49 Female genital mutilation can be considered ‘a child-specific form of persecution as it disproportionately affects the girl child’: see paragraph 9 of the Guidance Note on Refugee Claims relating to Female Genital Mutilation of 2009 issued by the United Nations High Commissioner for Refugees (available from https://www.unhcr.org/fr/publications/legal/4fd737379/note-dorientation-demandes-dasile-relatives-mutilations-genitales-feminines.html).

50 The judgment of the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) delivered on 17 April 2020 was annexed to the observations of the applicant in the main proceedings. That council partly reproduced the elements of the decision of the Commissaire général aux réfugiés et aux apatrides taken on 2 October 2019 rejecting XXX’s new application for international protection. It is apparent from that decision that the children’s mother was hospitalised and that the couple’s daughter was placed in a nursery.

51 It must be recalled that a deportation order amounts to an interference in the exercise of the right to respect for family life: see, in another context, judgment of 11 July 2002, Carpenter (C‑60/00, EU:C:2002:434, paragraph 42).

52 Judgment of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 59). See also point 26 of the present Opinion.

53 See judgment of 5 May 2022, Subdelegación del Gobierno en Toledo (Residence of a family member – Insufficient resources) (C‑451/19 and C‑532/19, EU:C:2022:354, paragraph 56).

54 See point 14 of the present Opinion.

55 See judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraphs79 and 80).

56 See judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 91).

57 That concept is, in my view, broader than that of family reunification.

58 See judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraphs 42 and 43). See also Opinion of Advocate General Richard de la Tour in Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:384, point 88).

59 Adopted by the General Assembly of the United Nations in its resolution 44/25 of 20 November 1989, which entered into force on 2 September 1990.

60 Judgment of 27 June 2006, Parliament v Council (C‑540/03, EU:C:2006:429, paragraph 57).

61 See, to that effect, judgment of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraph 58).

62 Recital 16 of Directive 2011/95 states that the directive respects the fundamental rights and observes the principles enshrined in the Charter and seeks to promote the application, inter alia, of Articles 7, 18 and 24 of the Charter, which are among the provisions expressly mentioned in in that recital, thereby showing the importance that the EU legislature attaches to them.

63 See, for a recent example, judgment of 18 April 2023, Afrin (C‑1/23 PPU, EU:C:2023:296, paragraph 45).

64 Judgment of 9 September 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraph 39 and the case-law cited).

65 See judgment of 17 November 2022, Belgische Staat (Married refugee minor) (C‑230/21, EU:C:2022:887, paragraph 48).

66 See judgment of 9 September 2021, Bundesrepublik Deutschland (Family member) (C‑768/19, EU:C:2021:709, paragraphs 38 and 44).

67 See judgments of 16 February 2017, C. K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 59 and the case-law cited) and of 19 March 2019, Ibrahim and Others (C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 87).

68 See also my Opinion in Ligue des droits humains (C‑817/19, EU:C:2022:65, paragraph 64 et seq.).

69 And, where applicable, his son.

70 And, where applicable, his son’s fundamental right to respect for his family life.

71 At worst, he will be forced to leave Belgian territory accompanied by his children, which is the situation envisaged in point 77 of the present Opinion.

72 See the issue paper of the Commissioner for Human Rights, ‘Realising the right to family reunification of refugees in Europe’, Council of Europe, June 2017, paragraph 1.2.2.

73 Ibid.

74 ECtHR, 6 November 2012 (CE:ECHR:2012:1106JUD002234109).

75 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 43).

76 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 44).

77 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 45).

78 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 45).

79 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 48).

80 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 49).

81 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (CE:ECHR:2012:1106JUD002234109, § 50).

82 ECtHR, 6 November 2012, Hode and Abdi v United Kingdom (ECHR:2012:1106JUD002234109, § 51).

83 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (ECHR:2012:1106JUD002234109, § 55).

84 ECtHR, 6 November 2012, Hode and Abdi v. United Kingdom (ECHR:2012:1106JUD002234109, § 56).

85 On the principle of equality set out in Article 20 of the Charter, see judgment of 2 September 2021, État belge (Right of residence in the case of domestic violence) (C‑930/19, EU:C:2021:657, paragraph 57 and the case-law cited).

86 Such reasoning also applies to XXX’s son in terms of his refugee status.

87 If the father’s departure forced the child to follow him to his country of origin, that child would be very specifically exposed to a serious risk of inhuman and degrading treatment which is absolutely prohibited under Article 4 of the Charter and against which refugee status was meant to protect her.

88 See, by analogy, judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others (C‑72/22 PPU, EU:C:2022:505, paragraph 63).

89 Judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity) (C‑91/20, EU:C:2021:898, paragraph 60).

90 According to the Court, ‘in order for there to be a real family relationship, it must be established that there is actually a family relationship or the intention to establish or maintain such a relationship’ (judgment of 1 August 2022, Bundesrepublik Deutschland (Family reunification with a minor refugee) (C‑273/20 and C‑355/20, EU:C:2022:617, paragraph 65).