Case C‑338/13, Noorzia

Requiring minimum age 21 by date of application reunification of spouses not infringing Directive on right to family reunification


>> The Directive on the right to family reunification (Directive 2003/86/EC) lays down the conditions under which third country nationals who reside legally in the territory of a Member State may apply for, among others, their spouse  and their children who are minors to join them. Article 4(5) of the  Directive permits Member States to fix a minimum age for the purposes of the reunification of spouses, which may not be higher than 21, an age that must be attained by the sponsor and his or her spouse prior to the latter being permitted to join the sponsor for reunification. The Directive does not, however, define the date by reference to which the national authorities must determine whether the minimum age condition is satisfied.

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 noted that the minimum age fixed by the Member States by virtue of Article 4(5) of Directive 2003/86 ultimately corresponded with the age at which, according to the Member State concerned, a person was presumed to have acquired sufficient maturity not only to refuse to enter into a forced marriage but also to choose voluntarily to move to a different country with his or her spouse, in order to lead a family life with him or her there and to become integrated there.

The Court held that a measure requiring the sponsor and his or her spouse to have attained the prescribed minimum age by the date when the application was lodged did not prevent the exercise of the right to family reunification nor rendered it excessively difficult. The Court furthermore found that such a measure did not undermine the purpose of preventing forced marriages since it permitted the presumption that, due to greater maturity, it would be more difficult to influence the persons concerned to contract a forced marriage and accepted family reunification if they must have reached the age of 21 by the date when the application was lodged than it would be if they were under 21 at that date.

The Court moreover found that taking the date when the application for family reunification was lodged as the point by reference to which it must be determined whether the minimum age condition was satisfied was consistent with the principles of equal treatment and legal certainty.

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.

Text of Judgment