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 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 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.
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