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 S
judgment 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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