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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Integration requirements for third-country nationals: the first CJEU ruling

Steve Peers

When can a Member State require immigrants to undertake integration courses? The Court of Justice dealt squarely with this issue for the first time in today’s judgment in P and S, which concerned the application of the EU’s Directive on the long-term residence of non-EU citizens. (The UK, Ireland and Denmark have an opt-out from this law).

The judgment has a broader relevance, since the EU Directive on family reunion for non-EU citizens also provides for Member States to adopt integration conditions. On the other hand, EU free movement law does not provide for Member States to impose such conditions on EU citizens or their family members. As for Turkish nationals, the EU-Turkey association agreement does not provide for such a condition either, but Member States may impose one subject to a standstill rule in most cases (see last year's Dogan judgment, discussed here).

Today’s judgment turns on the wording of the long-term residence Directive, which states that Member States ‘may require third-country nationals to comply with integration conditions, in accordance with national law’. The case concerned non-EU citizens who already had long-term resident status under the Directive, but Dutch law still requires them to take civic integration courses and penalises them with a fine every time they fail. A later change to Dutch law requires non-EU citizens to pass these courses before they get long-term residence status, but that later version of the law was not directly at issue in this case.  

Judgment

According to the Court, the requirement to take integration courses does not as such infringe the Directive, first and foremost because the Directive clearly permits an integration condition to be imposed before obtaining long-term resident status. Next, the Court ruled that the requirement did not breach the equal treatment rule set out in the Directive, since Dutch nationals could be presumed to have knowledge of Dutch society and the Dutch language, whereas non-EU citizens could not.

However, that was not the end of the Court’s analysis. It then focussed on whether the national rules undercut the effectiveness of the Directive. The Directive had as its main aim the integration of non-EU citizens, and the Court stated that learning the national language and about the host State could facilitate communication with Dutch citizens, and ‘encourages interaction and the development of social relations’. Acquiring a knowledge of Dutch also ‘makes it less difficult’ to find work and take up training courses. The integration requirement therefore contributed to the aims of the Directive.

The Court went on to say that there were some limits upon what Member States can do, as regards ‘the level of knowledge required to pass the civic integration examination’, ‘accessibility of the courses and the material  necessary to prepare’ for the exams, the level of registration fees and ‘specific individual circumstances, such as age, illiteracy or level of education’. But the Court seemed most concerned about the amount of the fines, which were quite high and would be imposed for every failure, or even where the non-EU citizen had not sat the exam within the required time. The fines were also imposed on top of the high fees to sit the exam. So in principle this aspect of the system infringed EU law, although it was left to the national court to apply the Court’s ruling in practice. Finally, the Court stated that it was irrelevant whether the persons concerned already had long-term resident status, since (in this case) it was not a condition for getting or retaining that status.

Comments

The Court’s ruling makes clear that Member States can in principle impose integration requirements for long-term residence status, subject to the principle of effectiveness. The main feature of that principle in this case was the fees for failing (or not sitting) the exam, in conjunction with the fees for sitting the exam. Obviously the Dutch government is now obliged to lower those fees, and other Member States’ rules could be challenged on the same basis. The ruling is obviously particularly relevant to less wealthy migrants who would struggle to pay the fines and test fees several times over.

Although the Court did not rule in any detail on the other limits which EU law imposes upon national integration requirements, such limits certainly exist, as regards the level of knowledge needed to pass, the accessibility of tests and materials, and ‘specific individual circumstances’. It is not clear from the judgment exactly how Member States are obliged to take account of such circumstances – whether by means of a complete exemption from the test or a different version of it. But it should be noted that the list of specific circumstances mentioned by the Court is not exhaustive (‘such as’).

While the judgment clearly implies that Member States may even withhold long-term residence status if an integration test is not passed, the Court did not rule on that issue as such. So it remains open to argue that there may be stricter limits or other factors to consider when Member States impose an integration condition to acquire that status.

Nor did the Court rule on whether the failure to meet an integration condition could be a ground to lose long-term resident status. The Directive does not list this as one of the possible grounds for loss of that status, and it should follow from the objective of the Directive that the list of grounds which could lead to such a loss of status is exhaustive. This also follows from the structure of the Directive: if failure of an integration test could lead to loss of status, why did the drafters of the Directive only mention integration tests in the clause dealing with acquisition of that status?

Today’s judgment is only the first in a line of cases upcoming concerning integration conditions (the next batch of cases concern the parallel clause in the family reunion Directive). As a starting point, the Court has struck a good balance between ensuring that immigrants fit into society and the need to prevent integration tests forming a disguised means of excluding migrants from ever really fitting in despite their genuine efforts.

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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