Zeitlichkeit und Normgrenzen am Beispiel des Familiennachzugs zu während des Verwaltungsverfahrens volljährig gewordenen minderjährigen Flüchtlingen | Überlegungen aus Anlass von EuGH, Urteil vom 1. August 2022, C-273/20 und C-355/20 – Bundesrepublik Deutschland gegen SW, BL und BC

Temporality and Norm Limits exemplified by Family Reunification with Refugee Minors who have come of Age during the Administrative ProcedureIn its decision of 1. 8. 2022, the European Court of Justice clarified that unaccompanied refugees who are minors continue to be considered minors within the meaning of the family reunification in Directive 2003/86/EC even if they reach the age of majority in the course of the administrative procedure. The Directive’s objectives and fundamental rights considerations were decisive in determining that the relevant point in time was the submission of the application. In contrast, German administrative practice, being in accordance with the previous case law of the Federal Administrative Court, appears to be contrary to Union law. On closer inspection, however, the Federal Administrative Court’s handling of the situation is comprehensible and in line with fundamental rights also. It is based on a plausible definition of the boundaries between the judiciary and the legislature. Affected persons are also not deprived of their rights due to the direct application of the directive’s provisions until the German Residence Act is corrected by the German legislature. The analysis thus does not reveal a problem in the judiciary, but one that originates from the German legislature’s implementation of Directive 2003/86/EG