Steve Peers
Around the EU, with emotions ranging from excitement to
dread, university and college students are now (or shortly) starting or returning
to their courses. Most of them will struggle with studies, finance, hygiene,
romance and alcohol – though perhaps not in that particular order. In addition,
third-country nationals resident outside the EU have the further burden of satisfying
immigration conditions.
Those conditions are harmonised by the EU’s students’ Directive, as adopted back in 2004. But
how much did this Directive actually harmonise these rules? Do Member States still have the right to add further
conditions for entry? In short, do third-country national students have a right
of admission to the territory of the EU, if they meet the relevant criteria for
admission in the Directive? The CJEU has ruled today that they do, in its judgment in Ben Alaya.
Background
The students’ Directive (which the UK, Ireland and Denmark
opted out of) also applies to the admission of school pupils on exchange programmes,
volunteers and unpaid trainees. However, Member States have an option to apply
the Directive’s rules as regards the latter three categories of persons.
According to the Commission’s report on the application of the Directive, most
Member States have not taken up this option.
In 2013, the Commission proposed a new version of the
Directive, which would incorporate the parallel Directive on admission of
researchers, add further categories of persons (paid trainees and au pairs),
make all the provisions of the Directive mandatory, and change some of the
rules on admission. The European Parliament adopted its opinion on this
proposal in spring, but negotiations seem to be moving slowly in the Council.
The CJEU has ruled once before on the interpretation of this
Directive. In the judgment in Sommer,
it gave a liberal interpretation of the rules governing students’ access to
employment, on the grounds that (according to the Directive’s preamble) it
aimed to ‘promote Europe…as a world centre of excellent for studies and
vocational training’.
According to the Directive, the mandatory conditions for
admission of students are: possession of a valid travel document; parental
authorisation, if they are a minor (this condition obviously won’t apply to most
students); holding sickness insurance; not being a threat to public policy,
public security or public health; paying the application fee; being accepted by
a higher education establishment; having sufficient resources; knowing the
language of the course of study; and paying fees to the university or college
concerned. In fact, Member States can waive the requirements of paying
application or admission fees, and of knowing the language.
Judgment
Mr. Ben Alaya, a Tunisian man resident in Tunisia, had
several times applied to German universities to study math (in conjunction with
a preparatory language course) and been accepted. However, the German
authorities repeatedly turned him down. He challenged before the German courts
the most recent refusal, which was based on the alleged inadequacy of his grades,
his weak knowledge of German, and the lack of connection between his course of
study and his chosen career. The relevant rule in German immigration law (as
quoted in the judgment) sets out instead only a more nuanced rule on language
requirements (waiving the requirement if the student will take a prior language
course), with no reference to academic qualifications or the link with a
planned career.
The national court referred to the CJEU the single question
of whether there was a right to admission of students if the criteria in the
Directive were satisfied.
According to the Court, first of all the mandatory nature of
the admissions rules for students, as compared to the discretionary application
of the rules on other categories of persons, justified the conclusion that the
admissions rules were an exhaustive list. Secondly, this interpretation was
consistent with the purpose of the Directive (promoting mobility to the EU, so
that it would be a global centre of excellence for education) as set out in the
preamble and referred to previously in Sommer.
Thirdly, the Directive expressly allowed Member States to set more favourable
standards, so it made no sense to interpret it to mean that they could also set
less favourable standards.
The Court did note that Member States had some general
discretion when applying the exhaustive EU rules: they could ask for the
evidence needed to ‘assess the coherence’ of the application, ‘in order to
fight against abuse and misuse’ of the admission procedure. Finally, the Court
went on to reach a conclusion on the facts of the case, noting that Mr. Ben
Alaya appeared to satisfy the conditions for admission, and that he therefore ‘ought’
to have been given a residence permit.
Comments
First of all, it is striking that the CJEU effectively
allocated responsibility as between the educational institutions and the
immigration authorities. While of course students should satisfy the relevant educational
criteria for admission, the Directive implicitly leaves it to the educational
institution to apply the relevant criteria. It is up to each Member State (or
perhaps its constituent states, in federal countries like Germany) to decide if
it wants to set minimum educational criteria for university entry by law, or
allow the higher education sector to set those criteria (or to set higher criteria
than the national minimum).
It certainly looks odd in this case that although the
educational institution thought the applicant’s grades were sufficient, the immigration
officials thought they knew better than the university how to apply its
admissions criteria. Then again, the Court of Justice judges also thought they
were competent to examine this issue.
It is also odd that the immigration officials rejected the
applicant on language grounds when he was willing to attend the pre-course
language studies referred to by national law. And the idea that immigration
officials can judge whether there is enough of a link between study and future
career is peculiar (and not provided for in national law or the Directive). More
fundamentally, it’s an absurd criterion for admission to higher education
courses: students often change their mind as to what career they wish to have, or
obtain jobs in different areas from their field of study due to developments on
the job market.
The judgment also raises some general points. As regards
education policy, it should be stressed that the Directive does not affect the ability
of Member States to determine what fees to charge to third-country nationals
coming from third countries, or to regulate whether they have access to study
finance. This is obviously different from the internal market rules applying to
EU citizen students who move between Member States, who have the right to equal
treatment as regards tuition fees and admission criteria or quotas, and (if
they are already residing in the Member State concerned, in most cases) equal
treatment as regards study finance.
For nationals of Turkey, the judgment has a particular
importance. They have the right to admission, then the right of access to
employment (Sommer), which gives rise
in turn to a right to stay on the territory as a Turkish worker (Payir).
As regards immigration policy more generally, last year the
CJEU ruled that the EU rules on grant of a short-term visa are exhaustive (Koushkaki). Just last week, it ruled
that the rules on admission at the external borders in the Schengen Borders
Code are exhaustive (Air Baltic). Now
it has confirmed that at least some of the rules on longer-term migration are
exhaustive too. While this judgment as such only applies to the students’
Directive, it must surely give rise to a presumption that the other EU immigration law Directives regulating the grounds of admission create a right of entry to:
the Blue Card Directive, the researchers’ Directive, the seasonal workers’
Directive and the intra-corporate transferees Directive. As for the other
Directives on legal migration, the single permit Directive does not set out
grounds for admission, the CJEU confirmed years ago that the family reunion
Directive confers a right of entry, and the long-term residents Directive presumably
confers a right to obtain a long-term residents’ permit and to move to another
Member State if the conditions in the Directive are satisfied.
In light of this broader impact, like the earlier judgments
of Koushkaki and Air Baltic, this is a welcome judgment by the Court, which
strengthens the rule of law in immigration proceedings and makes clear that the
EU rules on immigration law aim toward harmonisation of national rules.
Barnard & Peers: chapter 26
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