1 The claimant, who was born on … 2017 in the federal territory, requests to be granted refugee status as a family member. She is, in any event, a Tunisian national. It has not been established by the court responsible for finding the facts whether she also holds Syrian nationality.

2 The claimant's mother, who was born in Libya, is a Tunisian national. In her application for asylum, the claimant stated that, up until she left the country, she was habitually resident in Libya. Her application for asylum was unsuccessful. The claimant's father is, by his account, a Syrian national of Arabic ethnicity and Muslim faith. He was granted refugee status in October 2015.

3 By notice of 15 September 2017, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) rejected the claimant's asylum application as manifestly unfounded.

4 By the contested judgment of 17 January 2019, the Cottbus Administrative Court (VG, Verwaltungsgericht) annulled the notice of 15 September 2017 in so far as the claimant's application to be granted protection as a refugee was rejected as manifestly unfounded and not as merely unfounded, but dismissed the action with regard to all other aspects. The claimant did not fulfil the conditions governing the granting of refugee status since she had no reason to have a well-founded fear of being persecuted in Tunisia, "her home country - or one of them in any event". The principle of subsidiarity in relation to international protection for refugees states that, if she had a well-founded fear of being persecuted in Syria, she must be instructed to avail herself of the protection available from Tunisia, of which she is a national. Neither was she eligible for protection as a family member of a refugee, in accordance with section 26 (5) first sentence in conjunction with (2) of the Asylum Act (AsylG, Asylgesetz), on the basis of the protection which her Syrian father enjoyed as a refugee in Germany. For it was contrary to EU law which has primacy, and in particular to the principle of subsidiarity, which applied in EU law too and was a general principle of asylum law and international refugee law, to extend international protection to persons - like the claimant - who, on account not least of their personal status as a national of another country that was able to protect them, and thus effectively by definition, did not require protection.

5 As grounds for her appeal on points of law, the claimant states that she was a Tunisian national. She submits that minor children born of parents having different national origins must be granted refugee status as a family member, in accordance with section 26 (2) in conjunction with (5) AsylG, even in the case where only one parent has been granted refugee status. This was not precluded by the principle of subsidiarity in relation to international protection for refugees. Article 3 of Directive 2011/95/EU allowed a Member State, in cases where a family member was granted international protection, to provide for that protection to be extended to other members of that family, in so far as the latter were not caught by one of the grounds for exclusion laid down in article 12 of Directive 2011/95/EU and in so far as their situation exhibited a connection with the purpose of international protection by virtue of the need to maintain family unity. Legislation must take particular account of the protection of minors and the best interests of the child. This also followed from articles 3, 9, 18 and 22 of, and the preamble to, the Convention on the Rights of the Child and the corresponding Joint General Comment of 16 November 2017.

6 The defendant defends the contested judgment.

7 The legal dispute is to 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 3 and article 23 (2) 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, amended OJ 2017 L 167 p. 58).

8 1. In German 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 48 of the Act of 20 November 2019 (BGBl. I p. 1626). According to section 77 (1) first sentence first half-sentence AsylG, 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.

9 The following provisions of national law are hence the decisive legal framework for the legal dispute:
Section 3 AsylG
(1) A foreign national is a refugee as defined in the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II p. 559, 560) if he or she,
1. owing to well-founded fear of persecution in his or her country of origin on account of his or her race, religion, nationality, political opinion or membership of a particular social group,
2. resides outside the country (country of origin)
a) whose nationality he or she possesses and the protection of which he or she cannot, or, owing to such fear does not want to avail himself or herself of,
(...)
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.
(...)
(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. (...)
(...)

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

11 2.1 The questions referred for a preliminary ruling are relevant for the decision on the claimant's request to be granted refugee status.

12 a) The claimant is not entitled to be granted refugee status in her own right (section 3 (4) AsylG).

13 Persons having two or more nationalities cannot be granted refugee status if they are able to avail themselves of the protection of one of the countries of which they are a national (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), decision of 14 June 2005 - 1 B 142.04 - (...)). This follows from article 1 (A) no. 2 (2) of the Convention relating to the Status of Refugees of 28 July 1951 (Geneva Refugee Convention), as amended by the New York Protocol of 31 January 1967 (BGBl. 1953 II p. 559, 560; 1969 II p. 1293, 1294), which sets out the principle of subsidiarity in relation to international protection for refugees. In accordance with that provision, a person shall not be deemed to be lacking the protection of the country of his or her nationality if, without any valid reason based on well-founded fear, that person has not availed himself or herself of the protection of one of the countries of which he or she is a national. Even persons having only one nationality who have a well-founded fear of persecution in relation to another country (for example, the country of former habitual residence) must generally be instructed to avail themselves of the existing protection available from the country of which they are nationals (article 1 (A) no. 2 (1) of the Geneva Refugee Convention). Article 2 (d) and (n) of Directive 2011/95/EU and section 3 (1) AsylG must also be interpreted to that effect: Accordingly, only persons who are unprotected because they benefit from no effective protection by a country of origin within the meaning of article 2 (n) of Directive 2011/95/EU are refugees within the meaning of article 2 (d) of Directive 2011/95/EU (see BVerwG, judgments of 18 October 1983 - 9 C 158.80 - (...), of 17 January 1989 - 9 C 44.87 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 81, 164 <167 et seq.>, of 28 May 1991 - 9 C 6.91 - BVerwGE 88, 226 <229> and of 6 August 1996 - 9 C 172.95 - BVerwGE 101, 328 <335>). In accordance with those principles, the claimant cannot be granted refugee status owing to a well-founded fear of being persecuted. This is because the claimant is able to obtain effective protection from the Republic of Tunisia, a country of which she is a national. There is no evidence that the Republic of Tunisia would not be willing and able to grant the claimant the necessary protection against persecution and removal to Syria, the country of origin of her father, who has been recognised as a refugee, or to a third country (chain deportation).

14 b) However, the minor claimant fulfils the conditions laid down in section 26 (5) first and second sentence in conjunction with (2) AsylG for the granting of refugee status to the unmarried minor children of a parent recognised as a refugee. Her father, who, by his account, is Syrian, was granted refugee status. Section 26 (2) in conjunction with (5) first and second sentence AsylG covers children of a recognised refugee even if they were born in the federal territory. The parent-child relationship does not need to have pre-existed in the country in which the refugee is persecuted. Subject to EU law, the national law must be interpreted as meaning that protection as a family member of a refugee must be granted even in the case where the family member is (also) a national of a country where they do not face persecution.

15 2.2 The questions referred for a preliminary ruling require clarification by the Court of Justice.

16 a) By referred question 1, the referring Court wishes to ascertain whether, in a situation such as that at issue in the main proceedings, article 3 of Directive 2011/95/EU must be interpreted as meaning that it precludes the rules laid down in section 26 (2) in conjunction with (5) first and second sentence AsylG, in accordance with which the national authorities are required to grant to the unmarried minor child of a recognised refugee the refugee status derived from that recognised refugee, even in the case where the child and his or her other parent are nationals of another country which is not the same as the recognised refugee's country of origin and of whose protection they are able to avail themselves.

17 Article 3 of Directive 2011/95/EU allows the Member States to introduce more favourable provisions for determining who qualifies as a refugee, in so far as those provisions are compatible with this Qualification Directive.

18 aa) It is clear from the case-law of the Court of Justice that a more favourable provision is compatible with Directive 2011/95/EU if it does not jeopardise the general scheme or the objectives of the Directive. National provisions which allow for the granting of refugee status to third country nationals or stateless persons in situations which have no connection with the purpose of international protection are not compatible (CJEU, judgment of 18 December 2014 - C-542/13 [ECLI:EU:C:2014:2452], M'Bodj - para. 44). Circumstances in which such a connection with the purpose of international protection is lacking are set out in the grounds for exclusion laid down in article 12 of Directive 2011/95/EU. Thus, for example, the reservation in article 3 of Directive 2011/95/EU precludes national provisions on the basis of which refugee status is granted to persons who are excluded from that status pursuant to article 12 (2) of Directive 2011/95/EU (CJEU, judgment of 9 November 2010 - C-57/09 and C-101/09 [ECLI:EU:C:2010:611], B and D - para. 115). Where family members of a recognised refugee do not fall within the scope of a ground for exclusion laid down in article 12 of Directive 2011/95/EU and their situation is, due to the need to maintain family unity, consistent with the purpose of international protection, article 3 of Directive 2011/95/EU permits a Member State to extend that protection to other family members (CJEU, judgment of 4 October 2018 - C-652/16 [ECLI:EU:C:2018:801], Ahmedbekova and Ahmedbekov - para. 74).

19 The extension of international protection to close family members of a beneficiary of international protection, which is provided for by section 26 AsylG irrespective of whether the person concerned has grounds for requiring protection in his or her own right too, has a dual function under national law. First, it flows from the experience that, when combating opposition forces, intolerant states, rather than targeting a political opponent they cannot apprehend, tend to focus on persons who are particularly close to that persecuted individual, in order to achieve their goal of suppressing dissenting opinions in one way or another (BVerwG, judgment of 2 July 1985 - 9 C 35.84 - (...)). That correlation is highlighted in recital 36 of Directive 2011/95/EU. For the country of origin of the family member already recognised as the principal beneficiary of protection, it generally makes no difference in that regard whether the additional family member is a national of another country in which he or she is safe from persecution. Secondly, section 26 AsylG "overtransposes" in a manner not required by EU law the protection which article 23 (2) of Directive 2011/95/EU requires to be afforded to family members who do not themselves qualify for such protection. The national legislature does not ensure that such persons receive the benefits referred to in articles 24 to 35 of Directive 2011/95/EU by means of individual provisions. In order to preserve family unity, it does so by extending the status enjoyed by the beneficiary of international protection to the other members of that person's family too, and - with the exception of persons who satisfy the personal grounds for exclusion under article 12 (2) of Directive 2011/95/EU (section 26 (4) AsylG) - irrespective of whether the family members have any grounds for requiring protection in their own right. In the light of that dual function, the automatic granting of refugee status, under national law, to family members of a person to whom that status was granted under Directive 2011/95/EU, in any event generally exhibits a connection with the purpose of international protection (CJEU, judgment of 4 October 2018 - C-652/16 - para. 72).

20 bb) It is necessary, however, to ascertain from the Court of Justice whether, under EU law, it is consistent with the general scheme and objectives of Directive 2011/95/EU to grant protection as a family member of a refugee even to third-country family members of a recognised refugee who are nationals of another country which is not the same as the refugee's country of origin and the protection of which they are able to avail themselves of, or whether this is incompatible with their personal legal status.

21 (1) Various provisions of Directive 2011/95/EU and of the Geneva Refugee Convention, each of which reflects the principle of subsidiarity in relation to international protection for refugees, might indicate that the foregoing is incompatible. According to recital 4 of Directive 2011/95/EU, the Geneva Refugee Convention, as amended by the New York Protocol of 31 January 1967, provides the cornerstone of the international legal regime for the protection of refugees. Article 1 (A) no. 2 (1) of the Geneva Refugee Convention states that, for the purposes of that Convention, the term "refugee" is to apply to any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. Article 1 (A) no. 2 (2) first sentence of the Geneva Refugee Convention provides that, in the case of a person who has more than one nationality, the term "the country of his [or her] nationality" is to mean each of the countries of which that person is a national. In accordance with article 1 (A) no. 2 (2) second sentence of the Geneva Refugee Convention, a person shall not be deemed to be lacking the protection of the country of his or her nationality if, without any valid reason based on well-founded fear, that person has not availed himself or herself of the protection of one of the countries of which that he or she is a national. Article 1 (A) no. 2 of the Geneva Refugee Convention is an expression of the principle of subsidiarity in relation to international protection for refugees.

22 That principle is reflected in the recitals of Directive 2011/95/EU. According to recital 12 of Directive 2011/95/EU, the main objective of this Directive is, inter alia, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection. In accordance with recital 15 of Directive 2011/95/EU, those third-country nationals or stateless persons who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds fall outside the scope of this Directive (see also, in that regard, CJEU, judgment of 18 December 2014 - C-542/13 - para. 46).

23 From the point of view of substantive law, the principle of international subsidiarity is also expressed in article 2 (d) of Directive 2011/95/EU. The same applies with regard to article 11 (1) (c) of Directive 2011/95/EU. The cessation clause clearly indicates that a person who enjoys the protection of his or her own country is not in need of international protection (UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011 version, para. 129). Article 23 (2) final half-sentence of Directive 2011/95/EU is also regarded by some as a substantive-law expression of the principle of subsidiarity in relation to international protection for refugees. In this respect, personal legal status ("persönliche Rechtsstellung"/"statut juridique personnel") includes possession of a different or an additional nationality (VG Trier, judgment of 13 February 2019 - 1 K 6155/17.TR - (...) para. 50; see to that effect, inter alia, the Belgian Conseil du Contentieux des Etrangers (Council for asylum and immigration proceedings), according to which article 23 of Directive 2011/95/EU reminds the Member States of the need to take into account the personal legal status of the family member "(e.g. a different nationality)" <quoted according to European Asylum Support Office, Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, 2018, p. 97 et seq., footnote 640>). Compatibility with the personal legal status of the family member is addressed by the United Nations High Commissioner for Refugees in paragraph 184 of the "Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees", which is not legally binding but, in accordance with recital 22 of Directive 2011/95/EU, is nevertheless to be taken into account as an aid to interpretation for the purposes of achieving uniformity in the application of the law. That paragraph states, in relation to article 1 (A) no. 2 (2) second sentence of the Geneva Refugee Convention:
"If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a dependant if this is incompatible with his [or her] personal legal status. Thus, a dependant member of a refugee family may be a national of the country of asylum or of another country, and may enjoy that country's protection. To grant him [or her] refugee status in such circumstances would not be called for."
(see also, to that effect, UNHCR Standing Committee, Family Protection Issues, document EC/49/SC/CRP.14 of 4 June 1999, no. 9, https://www.unhcr.org/en/excom/standcom/3cc414164/family-protection-issues.html).

24 Under article 4 (3) (e) of Directive 2011/95/EU, the assessment of an application for international protection is to be carried out on an individual basis and includes taking into account whether the applicant could reasonably be expected to avail himself or herself of the protection of another country where he or she could assert citizenship. That provision transposes substantive conditions laid down elsewhere to an assessment by the authorities which, in the light of article 1 (A) no. 2 of the Geneva Refugee Convention, is concerned in particular with the requirement to investigate whether the applicant has more than one nationality (BVerwG, judgment of 29 May 2008 - 10 C 11.07 - BVerwGE 131, 186 para. 34; (...)).

25 From a procedural point of view, the principle of subsidiarity in relation to international protection for refugees is expressed, inter alia, in article 33 (2) (b) and article 35 first sentence (b) of Directive 2013/32/EU.

26 The foregoing considerations might indicate that it is contrary to the Directive for national law to provide for refugee status to be automatically extended to a family member who is a national of another country which is not the same as the refugee's country of origin and the protection of which that person is able to avail himself or herself of. This would mean that the safeguarding of family unity in such a way as to preserve the rights arising from article 23 (2) of Directive 2011/95/EU cannot be ensured - as it is under national law - by granting refugee status on the basis of Directive 2011/95/EU, but must be achieved by issuing a residence title in accordance with the conditions laid down in the rules on family reunification under residence law.

27 (2) Militating in favour of the compatibility of extending refugee protection to the claimant notwithstanding her Tunisian nationality, by contrast, is the fact that hers is a derived refugee status, which, conversely, does not require family members to satisfy the criteria governing refugee status (article 2 (d) of Directive 2011/95/EU) in their own right. If it is compatible with the Directive to grant derived refugee status to family members even in the case where it is established that those family members have no reason to have a well-founded fear of being persecuted, it is difficult to explain why the existence of a country of origin affording protection which is not the same as the refugee's country of origin should preclude entitlement to the granting of (derived) refugee status. After all, the ability of family members to avail themselves of the protection of the country of origin does not - contrary to the definition of "refugee" - constitute a ground for exclusion. Even in this scenario, therefore, extending protection to the family member may, not least on account of the need to maintain family unity, exhibit a sufficient connection with the purpose of the international protection granted to the refugee. The question of whether family unity in the refugee's country of refuge could also be ensured by the issue of a residence permit to the family member was not considered by the Court of Justice in Ahmedbekova (see CJEU, judgment of 4 October 2018 - C-652/16 - para. 73).

28 b) It also falls to be ascertained what significance is to be attached to the reservation contained in article 23 (2) of Directive 2011/95/EU with respect to compatibility with the personal legal status of the family member. The reservation as regards compatibility with the personal legal status originates from an amendment proposed by the European Parliament to the European Commission's proposal for what became Directive 2004/83/EC. The wording "unless that status is incompatible with their existing status" was explained as meaning that some family members may hold a different legal status in their own right, which may not be compatible with that of international protection (Report by the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, 8 October 2002 (COM(2001)510 - C5-0573/2001 - 2001/0207(CNS)), p. 18, Amendment 22).

29 The UNHCR interprets that reservation as meaning that there are situations where the principle of derived status is not to be followed, i.e. where family members wish to apply for asylum in their own right, or where the granting of derived status would be incompatible with their personal status, e.g. because they are nationals of the host country, or because their nationality entitles them to a better standard (UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection granted <OJ L 304 of 30 September 2004>, p. 38, with regard to article 23 (1) to (2)).

30 Legal scholars argue that the reservation is directed only at nationals of the host Member State or of another Member State of the European Union or at third-country nationals with a long-term right of residence (...). However, this cannot be inferred with the requisite clarity from article 23 (2) of Directive 2011/95/EU. The question therefore arises as to whether the reservation in article 23 (2) of Directive 2011/95/EU excludes family members, who are nationals of a third country which is not the same as the refugee's country of origin and the protection of which they are able to avail themselves of, from entitlement to the benefits referred to in articles 24 to 35 of Directive 2011/95/EU and whether it thereby refers in essence to the preservation of family unity in accordance with the law on foreign nationals (see, e.g., VG Trier, judgment of 13 February 2019 - 1 K 6155/17.TR - (...) para. 50 et seqq.).

31 c) In the referring Court's view, it falls finally to be ascertained to what extent, in providing answers to questions 1 and 2, it is material whether, in the light of the refugee status enjoyed by one parent and in the factual circumstances of the individual case, it is possible and reasonable for the unmarried minor child and its parents to take up residence in the country of which the child and one parent are nationals, the protection of which they are able to avail themselves of and which is not the same as the country of origin of the other parent, who is recognised as a refugee. It must be borne in mind in this regard that, under German law, family unity in the host Member State can, in principle, also be maintained on the basis of the rules on family reunification under residence law, although this does not provide for an unconditional right covering all conceivable cases.

32 It would be impossible for the refugee to take up residence in the country of which his or her family members are nationals if, for example, he or she had already been refused entry to that country. It would in any event be unreasonable for that person to do so if he or she had reason to fear of being removed to the country of persecution or exposed to the risk of deportation to a third country (chain deportation) (principle of non-refoulement). In the situation in the present case, however, such a course of action may be unreasonable not least because a refugee recognised in a Member State is supposed to be able to exercise with immediate effect - not only a mere right of residence but also - all the rights associated with the status of refugee; that person can do this automatically only in the State which has granted him or her refugee status (see also CJEU, decision of 13 November 2019 - C-540/17 and C-541/17 [ECLI:EU:C:2019:964], Hamed and Omar - para. 40). Neither is it clear whether account is also to be taken in this regard of other individual circumstances which, in the context of the facts of the case, make it seem impossible or unreasonable for the refugee, the unmarried minor child or the other parent to take up residence. The principle of proportionality might militate in favour of doing so.