The Court of Justice of the European Union (CJEU) ruled in its judgment of April 18th, 2023 that a Member State’s national legislation requiring family members to go necessarily and in any event in person to a diplomatic or consular post of an EU state in order to submit an application for entry and residence in the purpose of family reunification is not compatible with EU law and constitutes an infringement of fundamental rights. There are indeed factual situations in which it is impossible or excessively difficult to go to such an establishment, e.g. because of an ongoing war in a third country.
The verdict was made based on the case of Syrian national, Mr. Y, who crossed into Belgium, while his wife Ms. X, and their two children remained in Syria. After three years Y was granted refugee status and X wished to join Y, so an application for entry and residence under family reunification was submitted in their name, by a professional representative. Although Belgian legislation requires the application be made in person at its diplomatic post, X and the children did not comply with this requirement due to exceptional circumstances that actually prevented them from going to this diplomatic post. The application in the end was submitted to the Belgian Immigration Office so not at a Belgian diplomatic post in the territory of a third country.
In such exceptional situations, the impossibility of going to an embassy or consulate means, in practice, deprivation of the right to family reunification. This, in turn, constitutes a violation of the right to respect for private and family life (Article 7 of the Charter of Fundamental Rights of the EU), the right to have the best interests of the child taken into account (Article 24(2) of the Charter) and the child’s right to maintain a permanent personal relationship with each parent (Article 24(3)).
Source: CJEU judgment as of April 18th, 2023, in case no. C-1/23 PPU