Integration Requirements for family reunion: the CJEU limits Member States’ discretion

Steve Peers

Many Member States have, in recent years, required non-EU citizens who would like to join their family members in the EU to pass a form of integration test first. The EU’s family reunion Directive, which governs the position of family members who want to join non-EU citizens, expressly gives Member States the option: family members ‘may be required to comply with integration measures’. However, in the cases of the family members of refugees and highly-skilled migrants who have an EU Blue Card, the integration measures can only be applied after they come to the country.

What are the limits – if any – on Member States’ discretion to impose such requirements? The CJEU answered that question for the first time today, in its judgment in K and A.

Judgment

The Dutch government has implemented the family reunion Directive with an integration requirement: a test on Dutch language and society. There are exceptions for ‘very special individual circumstances’. Family members must pay €350 to take the course, and €110 to buy the study pack. The case concerns citizens of Nigeria and Azerbaijan who had argued that they should be exempt from the course on health grounds, but the Dutch authorities rejected their arguments. They challenged those decisions before the Dutch courts, which asked the CJEU to interpret the Directive.

The Court begins by repeating prior case law which stated that Member States must admit family members to their territory if they meet the conditions set out in the Directive. It then confirms that Member States can indeed impose an integration requirement on applicants for family reunion before entry, unless they are joining a refugee. But the Court applies prior case law by analogy (Chakroun, on the minimum resources requirement in the Directive) to insist that the ‘integration’ condition must be interpreted strictly, and that Member States cannot use it to undermine the main purpose of the Directive: facilitating family reunion.

Next, the Court invokes the principle of proportionality. In this case, it means that any integration measures must be linked to the actual purpose of facilitating family members’ integration. As in its recent P and Sjudgment on integration measures for long-term resident non-EU citizens (discussed here), the Court accepts that a test on the host State’s language and society is a legitimate way of ensuring integration.

However, the Court emphasises that the conditions relating to the integration requirement can’t exceed its aims. This would ‘in particular’ happen if the requirement ‘were systematically to prevent’ family reunion even though, ‘despite having failed the integration examination, they have demonstrated their willingness to pass’ it and ‘have made every effort’ to do so. The integration tests cannot be aimed at ‘filtering’ family members, but instead must actually help them integrate.

The Court went on to require Member States to consider ‘specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health’ of a family member, ‘in order to dispense’ them from the integration test where those circumstances make the family member ‘unable to take or pass that examination’. Otherwise the test would create a ‘difficult obstacle’ to the family reunion right, and circumvent the requirement to make a ‘case-by-case’ decision on applications. Overall, then, Dutch law on integration measures went beyond the limits imposed by EU law (as interpreted by the Court), since the hardship clause in the Dutch law set out fewer exceptions from the integration requirement than EU law allowed.

Finally, the Court ruled (as in prior judgments on long-term residence) that the Dutch fees were too high, also forming an obstacle to the effective exercise of family reunion, in conjunction with travel costs, considering that they had to be paid also when the test was retaken.

Comments

It should be noted that the family reunion Directive doesn’t apply to the UK, Ireland or Denmark. It also doesn’t apply to the non-EU family members of EU citizens. Those people are either outside the scope of EU law (if they join an EU citizen in that citizen’s own Member State), or fall within the scope of the EU citizens’ Directive(if they join an EU citizen in a different Member State). The citizens’ Directive doesn’t allow for any integration requirement. Family members of Turkish citizens are also in a different situation: as discussed here, there is a ‘standstill’ requirement on new restrictions on their family reunion. So new integration requirements can only be introduced on public interest grounds.

Turning to the judgment, it’s no surprise that the Court upheld the validity of integration measures requirements in principle. They are expressly provided for in the legislation and there’s a sound argument that it makes sense for newcomers who aim to settle in a country to learn its language and about its society. But it’s also a potential limit on the right to family reunion.

The Court’s judgment does a good job trying to balance these conflicting principles. Although the Court unfortunately doesn’t mention the right to family life, that right nonetheless suffuses this judgment, as the Court identifies a public interest reason to restrict that right and then subjects this restriction to the principle of proportionality.  So the integration tests must be genuine, not simply an attempt to reduce numbers of new entrants. The Court even suggests that those who are genuinely willing to pass the test and made the effort to do so ought not to be denied family reunion, presumably even if they have not actually passed it.

Indeed, this is a non-exhaustive list of when the principle of proportionality applies (‘in particular’). There is a requirement to consider individual cases and again, the list of circumstances which the Court insists that Member States consider (age, illiteracy, education, finances and health) is not exhaustive (‘such as’). The Court also comes down hard again on the high fees charged to migrants by the Dutch government.

This judgment will be particularly useful to those migrants who have lower incomes and those who come from developing countries, where the level of education is not always as high. (Unlike the Advocate-General, the Court does not discuss the exception from the integration test in Dutch law for migrants from some wealthy countries). While there are good reasons to expect migrants to learn their host country’s language and to know about its culture – for both the sake of both migrants and the host country’s society – there is also a powerful argument that spouses, parents and children should be able to enjoy family life together. In significantly limiting States’ ability to insist that people pass an integration test before they can live with their loved ones, the Court has made the right choice.

Barnard & Peers: chapter 26

Photo credit: vorige.nrc.nl

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The CJEU’s approach on the minimum age requirement for spouses in an application for family reunification

Georgios Milios

PhD candidate on immigration law at the Faculty of Law, University of Barcelona

In its recently decided judgment in Noorzia, the CJEU ruled on whether a national law which requires the sponsor and his/her spouse to have reached the age of 21 by the date on which the application for family reunification is submitted (rather than by the date on which the decision on the application is made) is consistent with Art. 4 (5) of the family reunion Directive (Directive 2003/86/EC). In a particularly brief judgment, the Court answers to this question in the affirmative. In this post, the judgment is criticised for being illiberal and outside the line drawn by the Court in its earlier jurisprudence and the European Commission’s guidance on the application of the family reunification Directive. Not least, the present article notices that the judgment departs significantly from the Advocate General’s opinion on the same case which was subject of an earlier post in this blog.

The facts of the case can be summarised as follows: Mrs. Noorzia applied for a residence permit in order to reunify with her husband who resides in Austria. The application was rejected because although Mr. Noorzia would reach the age of 21 by the time of the effective reunification, he was under that age at the date on which the application was lodged. Indeed, the Austrian law explicitly requires both spouses to be at the age of 21 at the moment the application for family reunification is submitted. In these circumstances, the national court referred the following question to the CJEU for a preliminary ruling: ‘Is Article 4(5) of Directive [2003/86] to be interpreted as precluding a provision [of national law] under which spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to family reunification is lodged?’ (para. 11)

Art. 4 (5) provides that ‘in order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’.

The Court’s judgment

The Court notes that by not specifying whether the minimum age condition should be met at the time of the application or at the time of the decision on the application for family reunification, the EU legislature intended to leave to the Member States a margin of discretion. Furthermore, the Court adopts the view that the relevant provision of the Austrian law does not prevent the exercise of the right to family reunification nor render it excessively difficult but on the contrary pursues the aim of prevention of forced marriages as persons who have reached the age of 21 when the application is submitted are less likely to contract a forced marriage and accept family reunification than persons who are under that age at that date. Lastly, the Court holds that the provision of the Austrian law at hand is consistent with the principles of equal treatment and legal certainty and ensures that family reunification depends on circumstances related to the applicant and not on the length of time which will be needed for the consideration of the application.

In view of the above mentioned considerations, the Court concludes that ‘the answer to the question referred is that Article 4(5) of Directive 2003/86 must be interpreted as meaning that that provision does not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification is lodged’ (para. 19).

Comments

It is apparent that the Court adopts a strict approach towards immigrants in this judgment. As noted above, this approach departs from the Advocate General’s opinion in this case, the European Commission’s guidance on the application of the Directive and to a certain degree from the previous jurisprudence of the Court on family reunification cases.

In particular, the Commission through its guidance as well as the Advocate General Paolo Mengozzi clearly state that Art. 4 (5) should be interpreted to mean that the Member States may require the sponsor and the spouse to be at the minimum age at the time of the effective family reunification and not at the time on which the application is lodged. This approach is based on a literal, teleological and systematic interpretation of the provision at hand. Indeed, as the Advocate General correctly notes, the provision of Art. 4 (5) itself gives the answer to the question as it provides that the minimum age should be reached ‘before the spouse is able to join’ the sponsor. Therefore, taken that the spouse is only able to join the sponsor when a positive decision with regards the application for family reunification is made, the crucial time period is the time of the effective family reunification. This being said, the Court’s approach that the provision gives a wide margin of discretion to the Member States to decide whether they would set the time limit at the date of the application or at the date of the decision on the application appears groundless.

Not least, the way that the Court deals with the teleological interpretation of the provision seems problematic as well. First, it only refers to the prevention of forced marriages and not to better integration which also constitutes a pursued aim of the provision at hand. In that respect, it should be noted that long family separations may in fact damage integration.

Second, even with regards to the aim of prevention of forced marriages, the Court’s approach fails to take into consideration the right of young couples to contract a genuine marriage and enjoy family life as derived from Art. 8 of the ECHR and Art. 7 of the ECFR. This being said, the Court should have at least mentioned (in line with its prior case law) that an individual assessment of a case is particularly important and that in case Member States are convinced that there are no indicators of a forced marriage, they should allow family reunification even if the minimum age requirement is not fulfilled at the time of the submission of the application. On the contrary, in its judgment the Court gives the impression that if the minimum age requirement is not fulfilled, the application could be rejected even when it becomes obvious from other factors that the marriage is genuine and that the aim for better integration is not achieved by refusing the application.

Furthermore, the systematic interpretation made by the AG is also missing in the Court’s reasoning. As mentioned by the AG in his opinion, when the EU legislature wished to set the time limit at the day of the submission of the application, it did so explicitly. Therefore, in the provision at hand, the legislature’s aim was to set the time limit at the day of the decision on the application for family reunification. The Court does not adopt the same approach in its judgment and merely reads the provision as giving a wide margin of appreciation to the Member States to decide when the requirement at hand should be fulfilled.

Lastly, the judgment can be also criticised for not being in line with the previous jurisprudence of the Court on the family reunification Directive. In particular, in Chakrounthe Court held that family reunification constitutes the general rule, the limitations should be interpreted strictly and the margin of appreciation should be exercised in a way that does not undermine the purposes of the Directive which is to promote family reunification. In Noorzia, the Court adopts the strictest possible approach towards the immigrants disregarding the above mentioned principles and recognises a wide margin of appreciation to Member States which in some cases may result in family reunifications being particularly difficult to achieve.

In conclusion, it should be mentioned that following the Commission’s guidance and the AG’s opinion with regards to the interpretation of the family reunification Directive, the EU family reunification regime seemed to follow a more immigrant-friendly approach, balancing to a certain degree the strict provisions of the Directive. Regrettably, in Noorzia the Court seems to take a step back adopting a formalistic and strict approach with regards to the interpretation of the Directive. In that respect, it should be added that the Court in the recently decided Dogan judgment (analysed here) chose to not answer the question regarding the integration condition in family reunification Directive, losing another opportunity to rule in a favourable way as regards family reunification of third-country nationals under the Directive.             

Barnard & Peers: chapter 26

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The CJEU transforms family reunion for Turkish citizens

Steve Peers

In this week’s judgment in Dogan, the Court of Justice in effect established a new set of rules for family reunion for most Turkish citizens living in the EU – although those rules will still differ in each Member State.

The case concerned Mrs. Dogan’s application to come to Germany to live with her husband, after spending thirteen (by now sixteen) years apart. She was refused on the grounds that her German language skills were not satisfactory, for even though she passed the relevant language test, her written German was not satisfactory due to illiteracy.

This raised two legal issues. First of all, since her husband ran a business in Germany, did the national rule breach the 1970 Protocol to the EU/Turkey association agreement, which prohibits new restrictions on establishment or the provision of services? Secondly, did the national rules comply with the EU’s family reunion Directive, which permits Member States to require family members to comply with ‘integration measures’?

The Court of Justice decided to answer only the first question. This means that its ruling is only relevant to Turkish nationals, rather than all third-country nationals. Having said that, Turkish nationals make up a large proportion of all third-country nationals in the EU, and the Court’s judgment on this point applies to all Member States, including the UK, Ireland and Denmark, which do not apply the family reunion Directive.

However, it should be noted that the Advocate-General’s opinion also argued that the integration requirement breached the family reunion Directive (see discussion here), and that there is another case before the CJEU which raises this issue (notably the K and A case; see further the Commission's recent guidance on the Directive, discussed here).

The judgment

Previously, the CJEU had held that the standstill on new restrictions on establishment and provision of services was binding, had direct effect, and prevented any new measures making it more difficult to exercise self-employment or provide services. But the previous case law only concerned those persons who were actually self-employed or providing services. Could it extend also to the rules regulating the family members of such persons?

The CJEU said it could. In the Court’s view, where the national law made family reunion ‘difficult or impossible’, the establishment of a self-employed person could be ‘negatively affected, since that person would ‘find himself [or herself] obliged to choose between his [or her] activity in the Member State concerned and his [or her] family life in Turkey’. In this case, the national rule made family reunion more difficult, and so violated the standstill clause.

Finally, the Court noted that a measure infringing the standstill clause could be permissible, if it could be ‘justified by an overriding reason in the public interest’, and was ‘suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. In this case, assuming that the objectives of the national law (preventing forced marriages and promoting integration) were overriding reasons in the public interest, the national law failed the proportionality test, since the refusal of an application on linguistic grounds was automatic, without taking account ‘of the specific circumstances of each case’.

Comments

In order to assess the impact of the Court’s ruling, it is necessary first of all to determine its scope. The geographical scope, as noted already, is all Member States. Also, while the family members of Turkish nationals will usually reside in Turkey, the judgment should logically apply also if those family members reside in another third State, or in a Member State. Although in the latter case, it is possible that EU immigration law, such as the long-term residents’ Directive, might also apply, that legislation is without prejudice to more favourable rules in treaties between the EU and third States.

The temporal scope, as established in the previous Dereci case, is 1973 for the first nine Member States (the date of entry into force of the 1970 Protocol to the association agreement), and the date of joining the EU for all other Member States. That means that the national law in force on that date regarding family reunion cannot be made worse for those joining Turkish nationals. Moreover, as established in Toprak and Oguz, if the national law is made more liberalafter that date, the standstill also prevents any reversion to the more restrictive law.

Next, what is the personal scope of the judgment? There are three facets to this issue: the sponsor (ie the Turkish citizen in the EU); the family members who seek to join them; and issues of nationality law.

For the Turkish citizen in the EU, the standstill which the Court discussed here also applies to providers of services, but not (as the Court established in Demirkan) to recipients of services. There is also a parallel standstill relating to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, the rules on access to employment of Turkish workers and their family members cannot be made more restrictive either. The case law on this provision (see most recently the Demir judgment) makes clear that the standstill on workers and the standstill on establishment must be interpreted the same way (although for the first nine Member States, the standstill on workers took effect in 1980, rather than 1973). In particular, the standstill on workers applies to measures concerning their first admission. It must logically also apply to rules on the first admission of the worker’s family members, since workers, like self-employed persons, would otherwise face a choice between carrying on with employment in a Member State and enjoying family life in another country.

As for family members, while this case concerned spouses, it would logically apply to any other family member as well (Mrs. Dogan had also originally applied for two of the couple’s four children to be admitted also). Simply put, the Turkish citizen in the EU could equally face a choice between his or her economic activity and family life with unmarried partners, children, parents or other family members as well.

Next, as for issues of nationality, one question is whether the primary right-holder and/or the family members concerned can still rely on the rule, if they are dual citizens of Turkey and another country. This question appeared to be answered by the CJEU in Kahveci and Inan, in which it ruled that dual citizens of Turkey and a Member State can rely on the EU/Turkey association rules. But in the pending case of Demirci, concerning social security, an Advocate-General has recently argued that dual citizens cannot invoke the rules. The CJEU will likely clarify this issue soon.

Another nationality-related question is whether third-country national family members of Turkish nationals (in this context, meaning family members who are not nationals of Turkey or a Member State) are covered by the standstill rules. It is clear that they are, by analogy with the recent judgment in Dulger.

Next, what is the material scope of the judgment? In other words, what type of rules relating to family reunion are covered? The test is whether the national rule makes family reunion difficult or impossible. This is apt to cover waiting periods, in-country applications, income requirements, fees for applications (see the Sahin judgment), age limits for spouses or children, and accommodation or sickness insurance rules. Furthermore, the standstill should equally apply as regards different categories of sponsors: for instance, more favourable rules that apply to groups such as refugees, long-term residents or highly-skilled workers cannot be made more restrictive either.  

Finally, what about the possibility of justification? The CJEU did not rule directly in this case as to whether prevention of forced marriages and integration were possible grounds of justification, although in Demir it ruled that prevention of irregular immigration could be such a ground. An example of a new rule which could surely be justified would be a ban on admission of family members if they have received a five-year prison sentence, as compared to a ten-year threshold previously. On the other hand, it seems doubtful that a national rule which simply aims to reduce the numbers of Turkish persons’ family members entering the country can be justified, in light of the overall objective of the association agreement of eventually providing for free movement of people and preparing for Turkish accession.

In any event, it is clear from the Dogan judgment that even if a new national restriction is justified, refusals cannot be automatic and must take account of individual cases. The requirement that the restrictions be ‘suitable’ also suggests that they must be the only possible means to achieve their end. More generally, it is surely the case that like any derogation from EU law, such restrictions and their application must also be judged in light of the EU Charter, namely the right to family life and rights of the child. 

Barnard & Peers: chapter 24, chapter 26

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Interpreting the Conditions for Family Reunion

Georgios Milios

PhD candidate on immigration law at the Faculty of Law, University of Barcelona

On 30 April 2014, Advocate General Paolo Mengozzi delivered an opinion on cases Dogan and Noorzia regarding the interpretation of two different provisions of Directive 2003/86 (the family reunification Directive). In particular, the CJEU was asked to consider whether the issue of a residence permit to a family member of a third-country national can be made conditional upon the submission of evidence that the family member has basic knowledge of the language of the Member State concerned and whether Member States may require that in a family reunification case the spouses must be at the age of 21 at the day of submission of the application rather than at the day of the decision regarding this application. The Dogan case also raised the question of whether such measures violated the standstill clause in the EU/Turkey association agreement, but that topic will be the subject of a separate post in this blog.

The AG’s opinion in both cases is definitely worth analysing as the controversial Directive has been widely criticized for being particularly strict with regard to the immigrants’ right to family reunification. Taken that there are indicators that several Member States have not implemented the already strict provisions of the Directive correctly, the AG’s opinions, although lacking binding effect, are very useful as they provide us with a thorough analysis of two crucial provisions of the Directive. Lastly, the AG’s opinion in these cases is suitable for a comparison with the Court’s earlier judgments in Chakroun and in Parliament v. Council.

The provisions at issue in the cases at hand are Art. 7 (2) Directive 2003/86 which provides that ‘Member States may require third country nationals to comply with integration measures, in accordance with national law’ and Art. 4 (5) Directive 2003/86 which provides that ‘In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’.

The facts in Dogan

Mrs. Dogan, who is a Turkish national living in Turkey, applied for a visa in order to join her husband, who is also a Turkish national living in Germany since 1998 and running a company there since 2002. The applicant enclosed in her application a certificate of knowledge of the German language (level A1) from the Goethe Institute stating that she had successfully passed the relevant exam with a grade 62 out of 100. The German Embassy considered that the applicant, being illiterate, had passed the exam out of luck and rejected her application on the grounds that she had not proven knowledge of the German language. The applicant did not appeal against this decision but re-applied to the German Embassy which rejected the application once again stating that the applicant does not have the necessary linguistic knowledge because she is illiterate.

The questions referred for a preliminary ruling to the CJEU

The applicant appealed against this decision to the competent court which decided to refer the following questions for a preliminary ruling to the CJEU: 1)  Does a provision of national law which provides that the acceptance to a Member State of a family member of a Turkish national is made conditional upon the submission of evidence that s/he has basic knowledge of the language of the Member State concerned violate Article 41 (1) of the Additional Protocol to the Association Agreement with Turkey? 2) Does the same provision of national law violate Art. 7 (2) of Directive 2003/86?

The opinion

  

The AG begins his analysis regarding Art. 7 (2) of the Directive with two assumptions. First, the AG notes that the second subparagraph of Art. 7 (2) provides that the integration measures of the first subparagraph can be applied to family members of refugees only after the latter have been granted family reunification. Therefore, a contrario interpretation of the provision shows that Member States can apply integration measures to immigrants who do not have the status of a refugee even before family reunification is granted. In the case at hand, taken that Mr. and Mrs. Dogan did not have refugee status, the German authorities were entitled to apply integration measures before Mrs. Dogan’s admission to Germany. Second, according to the Court’s previous jurisprudence regarding Directive 2003/86, authorisation of family reunification constitutes the ‘general rule’ and the provisions that may limit the exercise of the right to family reunification should be interpreted strictly (see Chakroun para. 43).

 

Furthermore, the AG goes on to consider the actual content of the term ‘integration measures’. In that respect, the AG notes that the term ‘integration measures’ should be distinguished from the term ‘integration conditions’. In his view, the two terms are different and by no means synonymous. This becomes apparent by a comparison between the first and the second paragraph of Art. 7. According to the first paragraph, the person who applies for family reunification may be required to prove that s/he meets several conditions contained in that paragraph. On the contrary, such evidence is not required in the second paragraph of Art. 7. Furthermore, the AG notes that if the legislator’s aim was to ensure that the integration measures referred to in Art. 7 (2) have the same status as of the conditions referred to in Art 7 (1), s/he would have included them as an additional element in the first paragraph and would not add a separate one. It follows that the ‘integration measures’ of Art. 7 (2), although they can be applied before entrance, mainly aim at facilitating integration in the Member States and do not constitute conditions for the acceptance in the territory of the latter.

Furthermore, the AG states that any national law which allows for a rejection of a family reunification application without giving the option of an individualized assessment based on the specific circumstances of each case violates the family reunification Directive. Therefore, a national law which does not take into consideration difficulties such as those concerning the health state of the family member, his/her age, illiteracy, disability and level of education is directly infringing the Directive. The AG further notes that in the present case, the German legislation provides that a spouse may be exempted from the obligation to prove knowledge of German if s/he is not able to provide such evidence due to sickness or physical disability. However, the relevant law does not refer to other personal circumstances such as those described above and does not provide that the personal and family circumstances referred to in Art. 17 of the Directive should be taken into consideration. The AG concludes that the fact that the applicant is illiterate is an obstacle that (in light of her age) may be particularly difficult to overcome and that in these circumstances, the language requirement in the German law is disproportionate to the aim of integration pursued in Art. 7 (2) and undermines the objective of the Directive.

The facts in Noorzia

Mrs. Noorzia, who is an Afghan national, applied on 3 September 2010 for a residence permit in order to join her husband, who is also an Afghan national and is living in Austria. Mrs. and Mr. Noorzia were born on 1 January 1989 and on 1 January 1990 respectively. The Austrian government rejected Mrs. Noorzia’s application as although her husband was 21 years old at the time of the decision regarding family reunification, he was under that age at the time Mrs. Noorzia submitted the application for the residence permit and therefore one of the requirements set out in the law was not met. Indeed, the Austrian legislator explicitly provided that the age limit of 21 years is a requirement for the issue of the residence permit to the spouse and that this requirement should be fulfilled by both spouses at the day of application and not at the day of the decision regarding the issue of the residence permit.  

The questions referred for a preliminary ruling to the CJEU

In these circumstances, the court referred the following question for a preliminary ruling to the CJEU: 1) Does a provision of national law which provides that family reunification may take place only if both spouses are 21 years old at the day of submission of the application for family reunification violate Art. 4 (5) Directive 2003/86?

The opinion

The AG in principle bases his answer on a literal, teleological and systematic interpretation of Art. 4 (5) Directive 2003/86. With regard to the literal interpretation of this provision, the AG notes that Art. 4 (5) provides that the spouse is required to be at the age of 21 before s/he ‘is able to’ join the third-country national. It follows that since the spouse is only ‘able to’ join the third-country national once the application is accepted, the requirement for a minimum age should be fulfilled at the time of the decision on the application for family reunification and not at the time of the submission of the application.

Subsequently, the AG makes a teleological interpretation of the provision. In his view, the aim of the provision is mainly to prevent forced marriages and to ensure better integration for the family member in the host Member State. In that respect, although the AG accepts as a general rule that setting a minimum age for the spouses before family reunification takes place may help in the prevention of forced marriages in the EU, there should be a balance between this aim and the right of spouses who have conducted a genuine marriage to exercise their right to family life as derived from Art. 8 ECHR and Art. 7 of the EU Charter of Fundamental Rights. Furthermore, the AG repeats that according to the Court’s jurisprudence the limitations upon the exercise of the right to family reunification should be interpreted strictly. Taken all the above into consideration, the AG concludes that requiring that the spouses should be at the age of 21 at the time of the submission of the application and not at the time of the decision on the application is less consistent with the objective of the provision. With regards to the provision’s aim for better integration, the AG notes that an extended separation may in fact have negative results as regards the integration of the spouse in the host Member State as such separation may loosen family ties.

Lastly, the AG makes a systematic interpretation of the provision stating that throughout the entire Directive, in the occasions that the EU legislator desired to set the time limit at the day of the submission of the application, s/he did it explicitly (see Art. 4 (6) and Art. 7 (1)). It follows that since the provision at hand does not explicitly refer to the day of submission of the application, the legislator’s intention was to set this time limit at the day of the decision regarding the application for a family reunification. In any event, the AG notes that the applicant can be required to prove when submitting the application that s/he is going to be 21 at the day reunification takes place.

Comments

The AG’s opinions in both cases seem to follow at least to a certain extent the line drawn by the Court in the two previous judgments regarding the family reunification Directive. The most important principle which seems to be picked from the Court’s earlier jurisprudence is that since family reunification constitutes the general rule, the limitations to the right to family reunification should be interpreted strictly and the margin of appreciation left to the Member States should not be used in a way that undermines the objective of the Directive (‘Since authorisation of family reunification is the general rule, the faculty provided for in Article 7 (1) (c) of the Directive must be interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof’ (see Chakroun para. 43)).

Moreover, the AG’s approach in both cases seems to follow the Commission’s guidance with regard to the family reunification Directive (which was discussed in an earlier blog post). In particular, regarding the minimum age provided for in Art. 4 (5), the Commission has stressed that the minimum age requirement should only be applied in order to prevent forced marriages and ensure better integration and in any case, it shall merely constitute one of the factors taken into consideration in the assessment of one particular case. The Commission concludes that the minimum age should be fulfilled at the moment of the effective family reunion and not at the moment of the submission of the application as Art. 4 (5) states that the sponsor and the spouse should be at the age of 21 ‘before the spouse is able to join him/her’ whereas Art. 7, for instance, clearly introduces the words ‘when the application for family reunification is submitted’.

Similarly, with regard to the integration measures referred to in Art 7 (2), the Commission notes that Member States may not refuse entry and stay on their territory to a family member on a sole ground that s/he did not succeed in the integration examination provided for in the domestic legislation of the Member State concerned and that ‘language and integration courses should be offered in an accessible way (available in several locations), be free or at least affordable, and tailored to individual needs, including gender specific needs (e.g. childcare facilities)’.

For all of the above, it becomes apparent that the AG in his opinions seems to adopt an ‘immigrant-friendly’ approach with regard to family reunification and follows the ‘guidance’ of the Court and of the Commission on that issue. This is particularly important taken that the family reunification Directive has been criticized for allowing Member States to set very low standards with regards to the applications for family reunification. To the extent that the Court will adopt a similar approach on the issues at hand, Member States will be further encouraged to apply the derogations and limitations of the Directive in a more favourable way towards immigrants, not only with regard to the integration measures of Art. 7 (2) and the age limit of Art. 4 (5) but to the restrictions set out in the entire Directive. National laws and domestic practices should as a general rule promote family reunification and not rely on strict interpretations of the Directive undermining the objective of the latter.  

Lastly, the AG’s opinions attract the attention for the importance that they attach to the individual assessment of the applications. In both cases, Member States should conduct an individual assessment and take other factors into consideration, such as illiteracy in the case of Mrs. Dogan. The same approach should be followed in the provision regarding the age limit. In case Member States have indicators that the marriage is genuine, they should not reject applications on the sole grounds that the spouses have not reached the corresponding minimum age, since that the risk of a forced marriage does not exist.


Barnard & Peers: chapter 26

 

 

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