OPINION OF ADVOCATE GENERAL PIKAMÄE, XXXX v Commissaire général aux réfugiés et aux apatrides (Request for a preliminary ruling from the Conseil d'État (Belgium)), C‑483/20

CJEU: AG Pikamäe Opinion in the case of C-483/20 concerning inadmissibility of asylum applications and the best interests of the child

On 30 September, AG Pikamäe issued his Opinion in C-483/20 following a request for a preliminary ruling from the Council of State in Belgium. The case involved a Syrian national who obtained refugee status in Austria and then went to Belgium to be reunited with his two daughters. Both daughters had subsidiary protection and one of them was a minor. Once there, the applicant lodged an application for international protection but it was declared inadmissible on the grounds that he was already a beneficiary of international protection in another Member State. Following two appeals, the case reached the Council of State, which decided to refer two questions to the Court of Justice on the compatibility of the inadmissibility mechanism of Article 33 in the Asylum Procedures Directive (APD) and the respect for family life and the best interests of the child under Articles 7 and 24 of the Charter.

First, the AG noted that the Asylum Procedures Directive cannot be interpreted in a way that
disregards the fundamental right of a child to maintain personal relations with their parents on a regular basis and therefore undermining the best interests of the child principle. Assessing the element of serious risk of treatment contrary to Article 7 of the Charter, the AG reasoned that if an applicant would be exposed to this risk due to a return to a Member State, then the host Member State should not be able to declare the application inadmissible. The AG further highlighted the importance of a personal interview by explaining that an assessment of serious risk can only be made if the applicant has been given an opportunity to set out factors indicating the risk in a personal interview of admissibility.

The AG explained that even though the Qualification Directive (QD) and APD are steps towards a Common European Asylum Policy, complete harmonisation is not achieved, meaning that if one Member State grants protection it is not certain another Member State would do the same on an admissible case. For this reason, for applicants who are rejected on substance, host Member States may where appropriate grant benefits provided for in Articles 24 to 35 of the QD in accordance with Article 23. Furthermore, the QD allows Member States to grant "another kind" of protection such as on discretionary or humanitarian grounds and suggests that this approach could be taken for those declared inadmissible for international protection while still providing them a stability of residence and therefore family unity through other protection options.

AG Pikamäe therefore proposed that the Court rule that a Member State cannot reject an application for international protection as inadmissible on the grounds that the applicant has already been granted protection by another Member State, in the situation where returning them to this State would expose them to a serious risk of being subject to treatment contrary to the right to respect for family life as laid down in Article 7, read in conjunction with Article 18 and 24(2) of the Charter. The precarity of the parent's legal status and the consequences for the child's well- being will be key in this assessment. In regard to the second question the AG concluded that where an application is considered admissible, EU law does not provide for the extension of international protection to family members and so an examination on the substance of the application in compliance with the Qualification Directive is necessary.

Source: ELENA Weekly Legal Update - 08 October 2021

1. Migratory journeys are often the result of a combination of two elements: chance and necessity. In the case before the Court, a Syrian national, after travelling through Libya and Turkey, arrived in Austria, where, out of necessity, he lodged an application for international protection. After obtaining refugee status, he went to Belgium to be reunited with his two children, one of whom is a minor, and there lodged a new application for international protection, which was declared inadmissible in view of the prior recognition granted in the first Member State. 2. It is against that background that the question arises, to my knowledge for the first time, whether, in particular, the fundamental right to respect for family life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with the obligation to take into consideration the child’s best interests set out in Article 24(2) of the Charter, can override the inadmissibility mechanism for applications for international protection laid down in Article 33(2)(a) of Directive 2013/32/EU. (2)

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.