Friday, 25 July 2014

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 Chakroun the 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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