The case had been brought by a man from Guinea who had come to Belgium in 2007. He later fathered two children who were born in Belgium and who where recognized as refugees there. He sought to have this status also extended to him.

The court in Luxembourg however confirmed on Thursday (November 23) that while the family unit must be preserved and protected under the law, this did not mean that the same immigration status had to be extended to the parents.

The ECJ said that the family unit could be preserved by other means as well, for example by issuing a residence permit for the parents -- rather than granting them refugee status.

Different kinds of immigration statuses in the EU come with different benefits and privileges, such as the trajectory towards gaining citizenship.

Also read: EU Court favors Ghanaian immigrant in Dutch residency dispute, setting precedent for other cases

Interpretation of EU asylum law

The father has argued that since his children had been born in Belgium and had been recognized as being in need of protection there, he would equally have to qualify.

To this end, he also argued as part of his defense that the children relied on him and were his legal dependants, adding that granting international protection to him would be in the best interests of the children as well.

His asylum application had been rejected, and his appeals had been escalated all the way up to the ECJ, when the Belgian Council of State turned to the ECJ to specify what obligations were placed on EU member states according to EU law. 

The ECJ replied that refugee status or subsidiary protection status did not automatically extend to relatives who themselves did not meet the requirements.

Place of birth relevant

The ECJ did specify however that the situation would have been different if the family unit had already existed in the third country where the family hailed from -- in this case Guinea.

This might set a precedent for cases where children come as refugees to the EU with their parents but are given different immigration statuses.

In such cases where the family unit already existed, plaintiffs might be able to successfully demand that the same protection status of their children be extended to them.

However, even in such instances, the case would likely have to be escalated all the way up to the ECJ level, meaning that plaintiffs cannot simply quote this ruling at a local or national appeals court as their defense.

Also read: Refugee minors have a right to family reunification – even if they're married, EU's top court rules