BRUSSELS. An underage refugee child is a refugee. Or rather, it can be, given that Community law does not prevent the automatic extension to the minor of the protections recognized to the parent in the context of international protection. A general principle whose recognition and implementation are left to the discretion of the individual states of the European Union. The European Court of Justice sheds light on immigration, once again recognizing the limits of fragmented legislation.
The ruling of the Luxembourg judges establishes that the Common European Asylum System “does not, in principle, oppose the possibility that a Member State automatically extends”, as a derivative and for the purpose of maintaining family unity, refugee status to the minor child of a parent who has already been granted that status. It can be done, therefore. But the regulations in force do not make it an obligation.
Under the 2011 European directive on international protection, two requirements must be met in order to obtain refugee status. The first is that there is a danger of persecution, the second is the absence of protection against acts of persecution by the third country of which the person concerned is a national. Practical example: a non-EU citizen protected by Europe, residing in an EU country, who in the meantime had a child during his period of international protection. For the child, the extension of refugee status should not take place automatically, as it should be checked whether in the meantime the conditions in the parent’s country of origin have changed. Furthermore, the obligation of Member States to provide benefits does not extend to the children of the beneficiary of international protection born in the host Member State.
The rules in force therefore do not provide for the protection of minors born on European soil during the protection of parents, but the EU Court of Justice interprets them broadly in terms of the protection of minors and the safeguarding of the family. “The best interests of the child are taken into account, in the light of which this provision must be interpreted and applied”, explain the judges. The twelve-star legal framework, after all, “aims to allow the refugee to enjoy the rights conferred by that status, while maintaining family unity in the host Member State”.