Requiring minimum age 21 by date of application reunification of spouses not infringing Directive on right to family reunification
Austrian legislation provided that spouses and registered partners must have reached the age of 21 by the date of lodging an application to be considered eligible for family reunification. The Verwaltungsgerichtshof asks the Court of Justice whether the Directive precludes such a rule. That court was hearing a case brought by an Afghan national whose application to join her Afghan spouse residing in Austria had been refused on the ground that the latter had not yet reached the age of 21 when the application was lodged, albeit that he had reached that age when the refusal decision was taken.
The Court noted by not specifying whether national authorities must, in order to determine whether the minimum age condition was satisfied, consider the matter by reference to the date when the application seeking family reunification was lodged or the date when the application was ruled upon, the EU legislature intended to leave to the Member States a margin of discretion, subject to the requirement not to impair the effectiveness of EU law.
The Court held that the condition relating to the date of lodging the application made it possible to guarantee that all applicants who were in the same situation chronologically were treated identically, by ensuring that the success of the application depended principally on circumstances attributable to the applicant and not to the administration, such as the length of time taken considering the application.
The Court thus found Article 4(5) of Directive 2003/86 must be interpreted as meaning that that provision did not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification was lodged.