(CN) — European authorities need to consider allowing refugees to move between European Union countries so they can be reunited with family members, according to a magistrate at Europe’s top court.
Advocate General Priit Pikamae, an Estonian legal adviser at the European Court of Justice, issued his legal opinion Thursday in a case involving a Syrian refugee in Austria who seeks to be united with his daughters in Belgium. One of his daughters is a minor.
Pikamae’s non-binding opinion serves as guidance to the Court of Justice, a Luxembourg-based court that serves as the bloc’s highest judicial authority.
He said this was the first time the court is considering a child’s best interests in the context of EU human rights and asylum laws.
The Syrian refugee at the center of this dispute arrived in Europe among hundreds of thousands of Syrians who fled a devastating civil war in their home country and were given asylum in Europe. Court documents did not include the Syrian national’s personal details — including his name and age — but said he arrived in Austria after traveling through Libya and Turkey.
In the meantime, his daughters also fled Syria and got to Belgium in early 2016 and were granted asylum that December. After their arrival in Belgium, he moved there to be with his daughters.
But Belgian authorities said he could not be given refugee status in Belgium because Austria had already given him protection.
In throwing out his application in 2019, Belgium’s Council for Asylum and Immigration Proceedings cited EU laws that allow a refugee’s application for international protection to be rejected if that person has already been given asylum in another EU country or in a non-EU country deemed safe. Belgian authorities also argued both he and his daughters enjoyed asylum protection in their respective countries.
But he challenged Belgium’s decision, arguing that EU and international laws protect his right as a refugee to live with his daughters and maintain his family life.
He took his case to Belgium’s Council of State, a high court for administrative disputes. The council is asking the Court of Justice in Luxembourg for a ruling on the matter.
In his opinion, Pikamae found the EU’s asylum rules must not be so inflexible as to not allow refugees to enjoy their right to a family life. Indeed, Pikamae said the Geneva Convention “expressly recognized the ‘essential right’ of refugees to the family unity” and recommended nations “take the necessary measures to maintain family unity and, more generally, to protect the families of refugees.”
Pikamae said making the Syrian man’s daughters seek asylum in Austria was an unsatisfactory solution in part because they might be separated for months as their refugee status is assessed there. He also noted that the daughters’ application for asylum in Austria could end up being rejected on the same grounds that their father’s was dismissed in Belgium.
Additionally, he said forcing the daughters to leave Belgium, where they have lived for several years, and move to Austria could hurt them, resulting in “foreseeable adaptation difficulties linked to a new residency in another member state, after several years spent in Belgium, and a severance of the social and emotional ties forged in that country.”
Pikamae stressed that EU human rights laws require governments to take into consideration the “interests of the children concerned” and to promote family life for refugees.
The advocate general dismissed the notion that the Syrian father might be seeking to change his residency to Belgium not because he wanted to be with his daughters but rather because Belgium affords him more benefits.
“The applicant’s actions do not constitute what is commonly referred to as asylum ‘forum shopping,’” he wrote. “He did not seek to obtain better legal protection or to exploit differences in the level of social protection offered by the member states in order to obtain better material living conditions.”
Courthouse News reporter Cain Burdeau is based in the European Union.
Follow Cain Burdeau on Twitter.
Follow @cainburdeau
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