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Tuesday, May 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Young Immigrant Needs a Break, Adviser Says

(CN) - Prospective immigrants to the EU meet minimum-age requirements as long as they turn 21 during the approval process, an adviser to the EU high court said Wednesday.

European law allows the immediate family members of third-country nationals legally residing in member states to apply for residence permits in the interest of keeping families together. The EU also permits member states to set a minimum age for entry, and Austria has set that bar at 21.

What EU law does not specify, however, is when during the immigration process either the sponsor or the family member must turn the minimum age.

Since Austrian law requires that both spouses be at least 21 before even submitting a reunification application, authorities there rejected the application of an Afghan man seeking to reunite with his wife because he was too young to apply for residency. The couple appealed, arguing that the husband's application should have been accepted because he turned 21 before officials made their decision.

The Austrian court asked the Court of Justice of the European Union whether EU immigration law gives member states the authority to require that both sponsor and spouse be of a minimum age before applying for residence.

In his opinion for the Luxembourg-based court, Advocate General Paolo Mengozzi noted that the right to family life is a basic right guaranteed by the EU constitution. And courts have consistently held that member states cannot use what little discretion they have in family-immigration matters to undermine those basic rights, according to the opinion, which is not available in English.

A literal reading of EU law finds that any minimum-age requirement must apply to when authorities have accepted a residency application and not to when it is filed by the applicants, Mengozzi said.

While minimum-age requirements aim to prevent forced marriages and child brides, that concern must be balanced against the rights of young couples who are genuinely married and want to be reunited, the adviser added.

No part of the EU law in question makes reaching the minimum age a requirement for filing a residency application anyway, Mengozzi concluded.

The EU adviser's opinion is not binding on the Court of Justice, which has begun its own deliberations in the case.

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