1 The claimant no. 1 (claimant) requests that he be granted subsidiary protection status.

2 The claimant is, by his own account, an Afghan national. He is the father of a son A. born on ..., who entered the federal territory in 2012. By a legally binding notice of the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) of 13 May 2016 his asylum application was rejected but he was granted subsidiary protection status.

3 By his own account, the claimant entered the Federal Republic of Germany by land in January 2016. He applied for asylum in February 2016 and filed a formal application for international protection on 21 April 2016. The Federal Office rejected his applications for recognition of entitlement to asylum, for the granting of refugee status or subsidiary protection status and for a declaration that there are deportation bans pursuant to section 60 (5) and (7) first sentence of the Residence Act (AufenthG, Aufenthaltsgesetz).

4 By the contested judgment, the Administrative Court (Verwaltungsgericht) imposed an obligation on the defendant to grant subsidiary protection status to the claimant on the basis of section 26 (5) in conjunction with (3) first sentence of the Asylum Act (AsylG, Asylgesetz) as the parent of an unmarried minor who is a beneficiary of protection. According to the Administrative Court, the son A. of the claimant had still been a minor at the decisive time when the asylum application was made. In this connection, an asylum application was to be regarded as having been made as soon as the competent authority became aware of the request for asylum of the person seeking protection.

5 By its leapfrog appeal (Sprungrevision), the defendant claims a violation of section 26 (3) first sentence AsylG. Pursuant to section 77 (1) first sentence AsylG, it argues, the decisive factor for the assessment of the factual and legal situation was, in principle, and thus in this case too, the time of the last oral hearing before the court responsible for finding the facts or - in the absence of such a hearing - the time of the final decision of the court responsible for finding the facts. Section 26 (3) AsylG did not contain any express exceptions in this regard. Its constituent elements and its structure suggested that, in any event, only a minor who was still a minor when his own status was granted could derive a right. The provision served the special protection interests of the minor entitled to protection, which, in principle, existed only as long as he was a minor. Even if minority were to be based on the time of the parent's asylum application, however, it was not the time of the substantive request for asylum (section 13 AsylG) that was decisive in that regard, but rather the time of the formal asylum application (section 14 AsylG). For the purpose of satisfying the application requirement laid down in section 26 (3) first sentence AsylG, it was not sufficient that the competent authority - in this case the Federal Office - was merely aware of the request for asylum. A prerequisite for granting was a (formal) application, which, in order to be effective, could be made only with the competent authority.

6 The proceedings must be suspended. In accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision. These questions concern the interpretation of article 2 (j) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ L 337 p. 9).

7 1. In national law, the legal assessment is based on the Asylum Act in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798), last amended by article 5 of the Act of 4 August 2019 that entered into force on 9 August 2019 (BGBl. I p. 1131).

8 The following provisions of national law are hence the decisive legal framework for the legal dispute:
Section 13 AsylG
(1) An asylum application shall be deemed to have been made if it is clear from the foreign national's written, oral or otherwise expressed desire that he or she is seeking protection in the federal territory from political persecution or that he or she wishes protection from deportation or other removal to a country where he or she would be subject to the persecution defined in section 3 (1) or serious harm as defined in section 4 (1).
(...)
Section 14 AsylG
(1) The application for asylum shall be filed at the branch office of the Federal Office assigned to the reception centre responsible for receiving the foreign national. (...)
(...)
Section 26 AsylG
(...)
(2) A child of the person entitled to asylum who was minor and unmarried at the time the asylum application was filed shall be recognised as entitled to asylum if the foreign national's recognition of entitlement to asylum is incontestable and there is no reason to revoke or withdraw this recognition.
(3) The parents of a minor unmarried person entitled to asylum or other adults as defined in article 2 (j) of Directive 2011/95/EU shall be recognised as entitled to asylum upon application, if
1. the recognition of the person entitled to asylum is incontestable,
2.the family within the meaning of article 2 (j) of Directive 2011/95/EU already existed in the state where the person entitled to asylum is politically persecuted,
3. they entered the territory before the person was recognised as entitled to asylum or if they filed the application for asylum immediately after entry,
4. there is no reason to revoke or withdraw the recognition of the person's entitlement to asylum, and
5. if they have the right of care and custody for the person entitled to asylum.
The first sentence, no. 1 to 4 above shall apply accordingly to minor and unmarried siblings of a minor entitled to asylum.
(...)
(5) Subsections 1 to 4 shall apply accordingly to family members within the meaning of subsections 1 to 3 of beneficiaries of international protection. Refugee status or subsidiary protection shall replace entitlement to asylum. (...)
(...)
Section 77 AsylG
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; if the decision is taken without an oral hearing, it shall be based on the situation at the time the decision is taken. (...)
(...)

9 2. The questions referred for a preliminary ruling are relevant for the decision and require clarification by the Court of Justice.

10 2.1 The questions referred are relevant for the decision on the claimant's request to be granted subsidiary protection status on the basis of section 26 (5) in conjunction with (3) first sentence AsylG, as the parent of an unmarried minor eligible for protection.

11 The claimant is a family member within the meaning of section 26 (5) first sentence AsylG and pursuant to section 26 (3) first sentence AsylG and a father within the meaning of section 26 (3) first sentence AsylG and therefore a parent of his unmarried son A. The son is eligible for subsidiary protection within the meaning of section 26 (3) first sentence AsylG and article 18 of Directive 2011/95/EU. The granting of subsidiary protection status is incontestable (section 26 (3) first sentence no. 1 AsylG). In accordance with section 26 (3) first sentence AsylG, the family within the meaning of article 2 (j) of Directive 2011/95/EU existed in Afghanistan, as the state in which the son A. faces a risk of suffering serious harm within the meaning of article 15 of Directive 2011/95/EU. The claimant also entered the country before his son A. was recognised as a person eligible for subsidiary protection (section 26 (3) first sentence no. 3 AsylG). There are no grounds for assuming that the recognition of the son A as a person eligible for subsidiary protection could be revoked or withdrawn (see section 26 (3) first sentence no. 4 AsylG), nor is there anything to indicate that the claimant is caught by the grounds for exclusion pursuant to section 26 (4) first sentence and section 4 (2) AsylG.

12 The claimant's application to be granted subsidiary protection as a parent would therefore be successful if, at the time which is decisive for the assessment, the son A was a minor within the meaning of section 26 (3) first sentence AsylG and the claimant exercised the right of care and custody for him within the meaning of section 26 (3) first sentence no. 5 AsylG.

13 Section 26 (3) AsylG is intended as a means of implementing article 23 (2) of Directive 2011/95/EU (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 17/13063 p. 21). Pursuant to the latter provision, Member States shall ensure that family members of the beneficiary of international protection who do not individually qualify for such protection are entitled to claim the benefits referred to in articles 24 to 35 of that Directive, in accordance with national procedures and as far as is compatible with the personal legal status of the family member. The term family and therefore also the term family member for the purpose of the national basis for a claim are governed by the express reference to article 2 (j) of Directive 2011/95/EU in section 26 (3) first sentence no. 2 AsylG. Pursuant to article 2 (j) third indent of Directive 2011/95/EU, the term "family member" of the beneficiary of international protection, when that beneficiary is a minor and unmarried, includes the father of that person, in so far as he is present in the same Member State in relation to the application for international protection and the family already existed in the country of origin. It is not clear from the wording of the provision which point in time is decisive for the purpose of assessing whether the beneficiary of international protection is a minor and whether, and possibly within what limits, the father's status as a family member continues to exist even after the beneficiary of international protection attains the age of majority.

14 2.2 The questions referred require clarification by the Court of Justice.

15 a) With referred question 1., the referring Court seeks, in a situation such as that in the present case, to determine what point in time is to be taken into account for the purpose of assessing whether the person eligible for protection is a "minor" within the meaning of article 2 (j) third indent of Directive 2011/95/EU.

16 So far, in relation to the minority of the beneficiary of protection, the national jurisprudence has in some cases also taken account - in line with the principle under section 77 AsylG, a principle that is generally applicable under the national law pertaining to asylum proceedings - of the time at which the decision on the parent's asylum application was taken (which, in accordance with the German implementation concept, is also always based on the derived family protection, which is identical in terms of its legal consequence). In other cases, however, it has been deemed sufficient that the beneficiary of protection was still a minor at the time when the parent made the asylum application. In this respect, the reasons provided are generally based on provisions of EU law, and the explicit fixing of the time in the case of derived international protection for children (see section 26 (2) AsylG) is transferred to international protection for parents, despite the lack of legislation in this regard.

17 In this respect, the wording of article 2 (j) of Directive 2011/95/EU does not provide any unambiguous information in the context of the granting of subsidiary protection to a parent. The fact that article 2 (j) third indent of [the German version of] Directive 2011/95/EU expressly differentiates between the perfect tense (with regard to the granting of international protection and the existence of the family in the country of origin) and the present tense (with regard to residence, responsibility for the beneficiary of protection, and minority) might indicate that the minority of the beneficiary of protection must be assessed on the basis of a current point in time, such as, for instance, the point in time at which the decision on the (asylum) application of the parent is taken. The requirement for a connection between the asylum application of the beneficiary of protection and the residence of the family member in the host Member State may also militate in favour of the view that, at the earliest, a point in time following the point at which the family member established his or her residence is decisive for the assessment of the minority of the beneficiary of protection. Considering the Directive from a systematic perspective, the reference to the "accompanying" family members of applicants for asylum in recital 16 second sentence of Directive 2011/95/EU as well as the principle of (maintaining) family unity enshrined in article 23 and in recital 18 second sentence of Directive 2011/95/EU may also point towards this. From a teleological perspective, the principles of safeguarding the best interests of the child, equal treatment, legal certainty and the practical effectiveness of EU law may militate against an assessment of minority at a point in time at which the proceedings are already well advanced. However, in the case of foreign nationals who have already reached the age of majority at the time when the decision is taken, the granting of subsidiary protection to a parent who has travelled to the country to join a child is objectively no longer suitable for safeguarding the best interests of a child.

18 Both referred question 1. and the other questions relate to a situation in which the family member who is a beneficiary of protection and from whom a protection status is to be derived has not been recognised as a refugee, but rather has merely been granted subsidiary protection status. For the purpose of determining the decisive time, a distinction may be made in this respect between a person eligible for international protection for whom refugee status has been recognised (article 13 et seqq. of Directive 2011/95/EU) and a third-country national or stateless person who has been granted subsidiary protection status (article 18 et seq. of Directive 2011/95/EU). Regarding the granting of refugee status, recital 21 of Directive 2011/95/EU makes it clear that the granting of refugee status is a declaratory act. In para. 53 et seq. of its judgment of 12 April 2018 - C 550/16 [ECLI:EU:C:2018:248] - concerning article 2 (f) of Directive 2003/86/EC, the Court of Justice of the European Union deduced from that recital that, after the application for international protection is submitted in accordance with Chapter II of Directive 2011/95/EU, a person who fulfils the material conditions has a subjective right to be granted refugee status, and that is so even before the formal decision is adopted in that regard, meaning that the right to family reunification pursuant to article 10 (3) (a) of Directive 2003/86/EC could not depend upon the moment at which the competent national authority formally adopted the decision recognising the person concerned as a refugee. Irrespective of the question of whether the case-law on the definition in article 2 (f) of Directive 2003/86/EC is transferable to the almost identically worded definition in article 2 (l) of Directive 2011/95/EU and/or the family unity to be maintained pursuant to article 23 of Directive 2011/95/EU, there is no comparable recital - regarding the granting of subsidiary protection - which expresses the required granting as a (purely or primarily) declaratory act. Another factor that may militate in favour of a distinction between the link to refugee protection, for which an extension to the targeted persecution due to the (continued) existence of family proximity to family members cannot be ruled out, and the link to the granting of subsidiary protection status is the fact that, in those cases, a parent seeks to derive subsidiary family protection from his or her child without himself or herself having asserted good reasons for the assumption that, if he or she were to return to his or her country of origin, he or she would run a real risk of suffering serious harm within the meaning of article 15 of Directive 2011/95/EU; the presumption of an extension of persecution that is linked to family ties is generally not justified in this case.

19 b) In the event that referred question 1. is answered to the effect that the decisive time for the assessment of minority is the time at which the application for the granting of international protection is made, by either the beneficiary of protection or the family member, referred question 2. a) serves to clarify the follow-up question of whether the point in time at which the material request for asylum is made or the point in time at which the asylum application is formally lodged is to be regarded as the point in time at which the application is made.

20 Article 6 (2) first sentence of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180 p. 60) draws a distinction between making an application for international protection and lodging it. The provision obliges Member States to ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. Article 6 (3) of Directive 2013/32/EU permits Member States to prescribe that applications for international protection be lodged in person and/or at a designated place. Article 6 (4) of Directive 2013/32/EU justifies an exception to the rule laid down in article 6 (3) of Directive 2013/32/EU (CJEU, judgment of 26 July 2017 - C 670/16 [ECLI:EU:C:2017:587], Mengesteab - para.101). Pursuant to the former provision, notwithstanding article 6 (3) of Directive 2013/32/EU, an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned. In line with article 6 (2) to (4) of Directive 2013/32/EU, the material request for asylum pursuant to section 13 (1) AsylG does not require a specific form, whereas the asylum application pursuant to section 14 (1) first sentence AsylG must in principle be formally lodged at the competent branch office of the Federal Office. This is not entered in the file and does not become the subject of an administrative procedure under asylum law until the request for asylum has been formally received by the competent authority.

21 The fact that article 6 of Directive 2013/32/EU authorises the Member States to provide for the formal lodging of an application and only requires them to make it possible to do this as soon as possible, without specifying any specific time limits in that regard, could militate in favour of an assessment of minority at the time when the application is formally lodged. Although no minimum, indicative or maximum periods are prescribed here (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 11 July 2018 - 1 C 18.17 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 162, 331 para. 19), it must be possible for the application to be formally lodged immediately, that is to say, without undue delay. However, it has not been established beyond doubt whether taking the formal lodging of an application into account is in line with the principles of equal treatment, legal certainty and effectiveness (effet utile).

22 c) In so far as the assessment of the minority of the beneficiary of protection is to be based on the time at which the family member within the meaning of article 2 (j) third indent of Directive 2011/95/EU enters the territory or on the time at which the asylum application is made by that family member, referred question 2. b) seeks clarification as to whether this also applies to the case where, at that point in time, the decision on the application for protection of the beneficiary of protection who was subsequently recognised as being a beneficiary of subsidiary protection had not yet been taken.

23 d) Referred question 3. a) seeks further clarification as to the overarching requirements of article 2 (j) of Directive 2011/95/EU, pursuant to which the family member must be present in the same Member State in relation to the application for international protection and the family must have already existed in the country of origin.

24 In this regard, clarification is required as to what substantive requirements article 2 (j) third indent of Directive 2011/95/EU imposes on the elements "in relation to the application for international protection", "present in the same Member State" and "the family already existed in the country of origin", in a situation such as that in the present case. In this respect, clarification is required, in particular, as to whether family life within the meaning of article 7 Charter of Fundamental Rights of the European Union (CFR) between the beneficiary of protection and the family member - the parent in this case - must have resumed in the host Member State or whether the mere simultaneous presence of the beneficiary of protection and the family member in the host Member State is sufficient for establishing the status of family member.

25 It is clear from the wording of article 2 (j) of Directive 2011/95/EU that the elements "present (…) in relation to the application for international protection" and "the family already existed in the country of origin" are to be interpreted as meaning that the mere simultaneous presence of the beneficiary of protection and the family member in the host Member State is not sufficient. The requirement that the family has already existed in the country of origin is based on the assumption that the proximity of the members of the core family to the protection-relevant events in the country of origin normally means that the family member himself or herself is also vulnerable (see recital 36 of Directive 2011/95/EU). The system on which the Directive is based could also point towards an understanding along these lines, in which regard article 23 and recitals 16, 18 and 19 of Directive 2011/95/EU are to be considered. Article 23 (1) of Directive 2011/95/EU serves to maintain family unity. Article 23 (5) of Directive 2011/95/EU extends the scope of the article to include, in addition to the family members specified in article 2 (j) of Directive 2011/95/EU, other close relatives who lived together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of international protection at that time. It can be inferred from both provisions that article 23 of Directive 2011/95/EU is intended, in particular, to protect the dependent members of the family unit, in particular minors. In order to achieve that protection objective, the provision also benefits the other family members covered by it. Recitals 18 and 19 of Directive 2011/95/EU could also support such an interpretation of the provision. Recital 18 of Directive 2011/95/EU encourages Member States to treat the best interests of the child as a primary consideration and refers in particular to the principle of family unity in this respect. Pursuant to recital 19 of Directive 2011/95/EU, it is necessary to broaden the term "family members", taking into account the different particular circumstances of dependency and the special attention to be paid to the best interests of the child. Recital 16 of Directive 2011/95/EU, according to which the Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their "accompanying" family members, does not preclude an interpretation requiring the family unit to be restored while exercising parental responsibility in the best interests of the child; in that regard, the Senate does not fail to recognise that the word "accompanying" is also open to a broader understanding (see, in relation to the understanding of "accompanying" in the context of the rights of EU citizens, BVerwG judgment of 28 March 2019 - 1 C 9.18 - (…), para. 20 et seq. and with reference to CJEU, judgment of 16 July 2015 - C 218/14 [ECLI:EU:C:2015:476], Singh and Others - para. 54). From a teleological perspective, there is reason to believe that, by limiting the concept of family members to the members of the nuclear family (parents and their minor children) by establishing a connection ("in relation to") with the application for international protection and by linking the "existence of the family in the country of origin", article 2 (j) third indent of Directive 2011/95/EU requires the resumption of family life between the family members within the meaning of article 7 CFR. Article 7 CFR must also be read in conjunction with the obligation to have regard to the child's best interests, recognised in article 24 (2) CFR, and with account being taken of the need, expressed in article 24 (3), for a child to maintain on a regular basis a personal relationship with his or her parents (CJEU, judgment of 6 December 2012 - C 356/11 and C 357/11 [ECLI:EU:C:2012: 776] - para. 76). In addition to the existence of legal ties, family life is characterised by a de facto family unit (see ECtHR, judgment of 2 November 2010 - no. 3976/05 [ECLI:CE:ECHR:2010:1102JUD000397605], Yigit/Turkey - para. 93) and a close family proximity between parents and their minor children (see BVerwG, judgment of 21 January 1992 - 9 C 63.91 - BVerwGE 89, 309 <312 et seqq.>). In that regard, the referring Court takes the view that there would be reservations in assuming that the conditions laid down in article 2 (j) third indent of Directive 2011/95/EU are also satisfied where, depending on the circumstances of the individual case, the applicant parent's stay in the host Member State is not at least to a certain extent intended to assume responsibility for the unmarried minor child who is the beneficiary of protection.

26 e) Referred question 3. b) follows on from referred question 3. a) and seeks clarification regarding the decisive time for the assessment of a resumption of family life within the meaning of article 7 CFR between the beneficiary of protection and the parent in the host Member State.

27 The referring Court takes the view that it would hardly be in line with the objectives of article 2 (j) of Directive 2011/95/EU, which are set out in d), if an applicant for asylum could invoke the resumption of family life to substantiate his or her status as a family member without there being any temporal restriction on the resumption of family life. In that regard, the concept of "in relation to the application for international protection" could militate in favour of the view that article 2 (j) of Directive 2011/95/EU requires that the restoration of the de facto family unit must take place within a certain period after entry into the territory.

28 Furthermore, the words "responsible" and "is a minor" in article 2 (j) third indent of Directive 2011/95/EU also suggest that the beneficiary of protection must have still been a minor within the meaning of article 2 (k) of Directive 2011/95/EU at the decisive time of the restoration of the family unit in the host Member State.

29 f) Referred question 4. seeks clarification as to whether the status of an applicant for asylum as a family member within the meaning of article 2 (j) third indent of Directive 2011/95/EU ends when the beneficiary of protection reaches the age of majority and the associated responsibility for a person who is a minor and not married ceases to exist.

30 Article 2 (j) third indent of Directive 2011/95/EU provides that the father of the beneficiary of international protection is a member of the family when that beneficiary is a minor, is present in the same Member State in relation to the application for international protection and the family already existed in the country of origin. The link between the status of family member to the period of minority of the beneficiary of protection, which is limited by article 2 (k) of Directive 2011/95/EU, as well as the protection of the best interests of the child pursued by article 2 (j) third indent of Directive 2011/95/EU, could militate in favour of status of the father as a family member within the meaning of article 2 (j) third indent of Directive 2011/95/EU being lost when the beneficiary of protection reaches the age of majority.

31 If the status of the father of the beneficiary of protection as a family member within the meaning of article 2 (j) third indent of Directive 2011/95/EU does in principle continue to exist beyond the point at which the child reaches the age of majority, clarification is required as to whether - beyond the situation in which the father's stay in the host Member State or the child's eligibility for protection comes to an end - that status ceases to exist at a certain point in time or upon the occurrence of a certain event.

32 3. With a view to the reasons for the decision of the Wiesbaden Administrative Court of 28 March 2019 - 6 K 1016/15 - (...) underlying case C-272/19 of the Court of Justice of the European Union, the Senate sees no cause to doubt its entitlement to request a preliminary ruling pursuant to article 267 TFEU.