Silvia Adamo, Postdoctoral Fellow, bEUcitizen – Barriers to European
Citizenship/Faculty of Law, University of Copenhagen
What are the legitimate expectations regarding
integration before family reunion in a Member State, and what is the position
of Turkish citizens in that equation? The EU Directive on family reunion for
third-country nationals gives Member States an option to impose such
integration requirements before entry of the family members, and the CJEU dealt
with the limits to the discretion of Member States in imposing such requirements
in a 2015 judgment (K and A, discussed here).
Moreover, in the Dogan judgment of 2014 (discussed here),
the Court assessed the reach of the standstill clause in the protocol to the
Association Agreement between EU and Turkey in relation to the conditions for
family reunification for self-employed Turkish nationals. There’s an important
distinction between the two legal instruments: all Member States are bound by
the EU/Turkey association agreement, whereas the UK, Ireland and Denmark opted
out of the family reunion Directive.
In that context, the Dogan case attracted the attention of the
Danish Ministry of Justice. After all, Turkish nationals are the largest
immigrant group in the country, and the issue of family life with a third
country national in Denmark
is very controversial. In a legal note commenting on the case shortly after the
judgment in Dogan, the Ministry found that the national rules on family
reunification (significantly restricted since 2002) could be evaluated as
constituting new and more stringent conditions that are not allowed to be
introduced for Turkish nationals, in light of the standstill clause. (Note that
the protocol to the association agreement has applied since 1973 for the first
nine Member States – such as Denmark and the UK – but at the date of accession
for the 19 Member States which joined the EU later). At the same time the
Ministry did not advise to amend them. Instead, it assessed that there were
‘doubts’ as regards the reach of the restriction test, including the
proportionality test, for the manifold requirements for family reunification in
Denmark. One of the requirements to fulfil for family reunification is that of
potential for successful integration (for the child) and of achieved
integration (for the sponsor parent).
The question that has now found its way to the courtroom is the
following: Can a Member State require Turkish children to fulfil a successful
integration evaluation, before granting them family reunification with their economically
active parent? The CJEU recently answered this question in the Genc case. Its judgment is relevant to family
reunion with Turkish nationals in all Member States – and would apply by
analogy to other forms of new restrictions on family reunion with Turkish
citizens besides integration requirements.
Facts
Mr. Genc is a Turkish national born in 1991. His father moved to Denmark
in 1997 and obtained a permanent residence permit there in 2001. After the
divorce of his parents, his father had obtained legal custody over him; however
Mr. Genc continued to live in Turkey
with his grandparents. In 2005, when he was fourteen years old, he applied for family
reunion with his father in Denmark, who was at the time in active employment.
Mr. Genc’s application was denied in 2006 by the Danish Immigration
Service, and again in 2007, by the Ministry of Integration. The reasons for the
denial were twofold: having lived in Turkey all his life and being able to
speak only Turkish, the Ministry stated that Mr. Genc had no possibility of
establishing sufficient ties with the Danish society to allow a successful
integration. The other reason given was that his father was not considered well
integrated either, and thus he was referred to continue family life through
visits to his son in Turkey, as he had been doing already.
Mr. Genc brought the case to the court of first instance and later to
the Eastern Regional Court, which decided to refer the case to the CJEU in
2014. The Danish national courts are generally reluctant and not particularly
active in referring cases to the CJEU, but since the Dogan case had
stirred the waters around the conditions for family reunification for Turkish
nationals, the time was ripe to submit to the Court’s evaluation the condition
for successful integration before family reunion – at least as far as this group
of foreign nationals is concerned.
The Danish Aliens Act establishes that a residence permit can be granted
upon application to a child under the age of fifteen who wants to live with the
parent having full or partial custody, but only if the child has not
established her own family yet. The sponsor parent living must be the holder of
either Danish citizenship, citizenship in one of the Nordic countries, refugee
status, a permanent residence permit, or a temporary residence permit that has
the possibility of becoming permanent. Other conditions are: self-sufficiency
(the sponsor parent should not be receiving State help or social security
subsidies); adequate housing; no conviction for abuse against children; and
respect for the best interest of the child. Different conditions may apply for
refugees.
Finally, the requirement for successful integration demands that if the
child and one of her parents are living in their home country or another country,
the residence permit will be given only if she already has, or has had, a
possibility to obtain such an attachment to Denmark
that will constitute a basis for a successful integration. The integration
requirement is only applied when more than two years pass from the moment a
parent becomes eligible to apply for family reunification to when s/he finally files
the papers.
Judgment
The referring court formulated four questions, requesting clarification
on the earlier case law of the CJEU on the standstill clause vis-à-vis the Dogan judgment. As a whole, the questions
referred reflected the doubts expressed in the Ministerial note and concerned
the restriction test and proportionality assessment of the integration
requirement for family reunification with respect to Article 13 of Decision No.
1/80 on the development of the Association Agreement (prohibition on
introducing new restrictions on the conditions of access to employment to
legally resident and employed nationals). Unlike the standstill considered in
the Dogan case, this standstill
relates to workers, not self-employed persons, and has applied since 1980 for
the first nine Member States.
The CJEU decided to consider the questions referred together, and to
focus on evaluating whether the integration requirement in Danish law was to be
considered a new restriction. The Court started by affirming that the situation
in question related to the freedom of Turkish workers within the EU, and thus
it was covered by Article 13 of Decision 1/80. The CJEU then affirmed that its
interpretation in Dogan that applied
the standstill obligation to spouses could also be transposed to other family
members, since restrictions to family reunification would affect the exercise
of the economic freedom of (in this case) workers.
Thus the CJEU insists on the fact that -national legislation that
restricts family reunification for Turkish workers is covered by the standstill
clause, denying that this is equal to granting a right to family reunification
or a right of establishment and residence for family members (para 44–45).
In order to sustain the exercise of the economic activity of Turkish
nationals, a requirement that further restricts the possibility of obtaining
family reunification must be considered a new restriction. As such, according
to the Court’s case law since Demir, national provisions
that impose conditions more stringent than the ones applicable at the time of
entry into force of Decision No. 1/80 can only be allowed if the requirement is
justified on public interest grounds, and is proportional, i.e. apt to achieve
a legitimate objective and not going beyond what is necessary in order to
attain it. In fact, after Dogan and
the reach of the standstill requirement there established, any new integration
requirements for family reunion can only be introduced on the grounds of public
interest.
The Court invokes Article 79 (4) TFEU, which refers to the prospect of
EU measures on integration of non-EU citizens, to establish that an integration
objective can indeed constitute an overriding reason in the public interest
(para 55– 56). However, the Danish law at stake in this case did not pass the
proportionality test. In the eyes of the Court, the two year deadline which
imposes the integration requirement is not indicative of the potential for
successful integration of the child, nor of the intentions of the parents as
regards ‘shielding’ their children from the host country’s society (of note is
also the opinion of Advocate General Mengozzi on the non-existence of
correlation between a prolonged stay in a third country and the possibilities
for integration, at para 48–49 of the opinion). To the contrary, the deadline
imposed does not consider the individual circumstances of the case, may lead to
automatic and systemic refusals of family reunification which are not suitable
to be appealed, and may lead to discrimination against children in similar
situations.
Comments
Denmark introduced the requirement of successful integration for family
reunification with children in 2004. The rules had a dual objective: to get rid
of the practice of children’s so called ‘re-education journeys’ to the parents’
homeland, as well as to prevent children from being left outside of Denmark as long
as possible before they reach adult age, in order to be educated and influenced
by their homeland’s culture, traditions, values, and norms. The maximum age at
which a child living abroad can obtain family reunion was lowered to fifteen
years old. In order to make sure that those children who would live in Denmark as adults would be integrated, they are
expected to relocate with their parents as early as possible in order to be
exposed to the national culture, language, norms, and values, especially
through schooling.
From a critical perspective, the objections that can be raised against
the national law are essentially three.[1]
First, when applying the requirement for successful integration, the lack of
the integration of the sponsor parent weighs more than the appraisal of the
integration potential of the child. Integration in Danish law is connected to
participation in the labour market, but also to assimilation of national values
and norms. Unemployed and non-integrated immigrants are rarely granted the
possibility to be family reunited with their children in Denmark. Family
sponsored migration from non-Western countries has been reduced via a string of
convoluted rules that have diminished this channel of legal migration.
Integration requirements are in this context employed in order to limit
migration via family reunification.
Second, as also noted by the CJEU, the national authorities have
employed a narrow and literal interpretation of the rules, funding the
evaluation on the detailed requirements listed in the preparatory work to the national law (duration
of stays in Denmark and in the home country, in which country the child has
spent most of her upbringing and gone to school, which language the child
speaks, etc.). This limits the discretionary power of the authorities and
impairs genuinely considering the individual circumstances of the case,
including the best interest of the child. The requirement of the potential for
a successful integration thus looks more like a legal construction that renders
possible the automatic rejection of family reunification applicants that have
spent too many years in their parents’ home country and who do not speak
Danish, and where the parent has not been able to prove that s/he is well
integrated.
Third, the requirement will always be applied to children of eight years
or older, where the child has stayed with the other parent outside of Denmark,
when more than two years have passed since the parent could legally apply for
family reunification. In these cases, it will be impossible to fulfil the
requirement of potential for successful integration. In this optic, integration
becomes a key factor for evaluating also the best interest of the child. The
child's legal status is made dependent on the parent's, and the instrumental
interpretation of the principle of the best interest of the child entails that
it is the opportunity for the child to develop a social connection to the host
country’s culture and society which weighs more than the possibility to live
with a parent. Yet, this also means denying family reunification to children as
young as eight years old.
In this light, the limits of the Genc judgment are two, in my
view: First, it only concerns Turkish nationals, possibly leaving space for
continuing to enforce the arbitrary and non-proportional integration requirement
onto other third country nationals and their children. The second limit is that
it only concerns employed Turkish nationals, perhaps regrettably highlighting
that the right to family life is precluded for non-economically active
citizens. A week after Genc, the CJEU held the same stand and stated in Khachab that a national rule requiring a (non-EU and
non-Turkish) sponsor parent to be in possession of sufficient resources (basing
that prediction on previous income) before granting family reunification is
compatible with the Family Reunification Directive. Hence at the same time that
the protection of the family life of Turkish workers in the EU appears to
increase, other third country nationals may still experience discrimination and
limits to their family life.
Barnard & Peers: chapter 26
JHA4: chapter I:6
[1] Adamo, S. What is ‘A Successful Integration’? Family Reunification and
the Rights of Children in Denmark .
Retfærd. Nordic Journal of Law and Justice, Year 39, Volume 1/152, 2016,
38–58.
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