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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