Family Reunion for Third-Country Nationals: Comments on the Commission’s new guidance

Steve Peers

Family life is a key part of the day-to-day lives of all residents of the EU (whether they are EU citizens or not). For non-EU citizens (third-country nationals), the issue is regulated by the EU Directive on family reunion for third-country nationals, which was adopted back in 2003. The Commission’s new guidance on this Directive raises new prospects for its effective enforcement and correct interpretation. While the guidance addresses a number of issues well, it could still be improved or clarified on a number of points.

 Background

In 2008, the Commission issued a report on the application of the Directive, which indicated that Member States had breached the Directive in dozens of ways. However, it did not bring any infringement actions against Member States. In 2011, it issued a Green Paper on possible reform of the Directive, but ultimately decided against proposing any amendments, seemingly due to fear that if any proposal were made, Member States would ultimately insist on dropping the degree of protection for family reunion, rather than raising it. So instead, the Commission has issued this guidance document – only 11 years after the Directive was initially adopted.

It should be noted that the Directive applies to 25 Member States, ie not the UK, Ireland or Denmark, which exercised their opt-outs.

General points

The Commission quite rightly relies upon the prior CJEU judgments relating to the Directive. In EP v Council, the Court upheld some provisions of the Directive which the European Parliament challenged for breach of human rights. However, the Court made clear that the exceptions in the Directive could not be applied automatically, but on a case-by-case basis. In Chakroun, the CJEU stated that the conditions and exceptions in the Directive had to be interpreted narrowly, so as not to frustrate the main purpose of facilitating family reunion. The concepts in the Directive that made no reference to national law had to be interpreted uniformly; the Directive had to be interpreted in accordance with human rights (the right to family life, in the ECHR and the EU Charter of Fundamental Rights); and Member States could not use their discretion to undercut the objectives of the Directive.

Personal scope

Several issues arise as regards the personal scope of the Directive. First of all, it does not apply to EU citizens who seek family reunion with their third-country national family members, as confirmed by the CJEU in Dereci. However, the CJEU also made clear in the 2012 S and O judgment that in the case of ‘mixed nationality’ families, ie where a parent is a third-country national and a child is an EU citizen, the parent can rely upon the Directive. But it is also possible that the sponsor is a dual citizen of both the EU and a third State, and the Commission does not expressly comment on what happens in that case. It should be noted that the CJEU has ruled, in the Kahveci case, that the EU/Turkey rules on Turkish workers’ family members still apply to dual citizens of Turkey and a Member State. So it is arguable that, by analogy, the same rule applies to the family reunion Directive. The issue is only relevant, of course, as regards dual EU/third-country citizens who live in their own Member State, because EU citizens who move to other Member States can rely upon the more generous family reunion rules in the EU’s citizens’ Directive. Those EU citizens who live in their own Member State can rely on EU family reunion rules only if they have moved to other Member States and returned, or exercise some activity, in another Member State, as recently clarified by the CJEU.

Another important question is how to interpret the rule that the sponsor must have a ‘reasonable prospect’ of permanent residence. The Commission lays great stress on national discretion here. While it makes some good points about the limits to that discretion, the better argument is that this is a uniform concept of EU law (in the absence of any reference to national law). Furthermore, the guidance should have mentioned the possibility that other EU laws could be relevant to determining whether such a prospect exists, in particular the EU/Turkey association rules and EU legislation on long-term residents, refugee qualification, researchers and highly-skilled migrants.

Family members

 The Commission makes a good case that the concept of dependency, which is crucial where a child is not the joint child of the sponsor and his or her spouse, should be determined by analogy with the EU citizens’ Directive. However, it does not mention Reyes, the most recent judgment on this issue, which established the important points that the reasons for the support of a family member do not matter (the existence of remittances is enough to show that dependence exists), and that the possibility of the family member getting a job in the host State are irrelevant.

As for the possibility of requiring the spouse to be a minimum age before admission (no older than 21), the Commission makes the sound point that this rule must be applied on a case-by-case basis, for instance exempting spouses from this requirement if there is no doubt that there is no forced marriage. It also rightly argues that it is sufficient that the spouse meets the age requirement at the time of admission, not the time of the application. The latter issue will be decided by the CJEU in the pending case of Noorzia.

 Conditions for admission

The Commission states that Member States have wide leeway to accept in-country admissions from family members in certain cases. In fact, since the entire Directive sets minimum standards (Article 3(5)), Member States should be free to accept in-country applications in all cases.

As for fees to be charged for family reunion applications, the new guidance makes some good points on the limits imposed by the principle of proportionality, in accordance with CJEU case law on the long-term residence Directive.

While the Commission argues implicitly that the ‘public health’ requirement in the Directive can be interpreted by analogy with the citizens’ Directive, it states that the public policy and public security rules in the latter directive are only relevant by way of background. Arguably the latter rules also apply by analogy, since the drafters of the family reunion directive chose to use the same terms as those in the citizens’ Directive.

The Commission makes some good points about the accommodation requirement. In particular, it should be sufficient that the sponsor will be able to satisfy that requirement at the time of admission of family members, not at the time of application. It would be disproportionate for a person who is de facto single to have to rent or buy family accommodation for months or even two years before his or her family members are admitted.

This brings us to the integration requirement. The permissibility of a language requirement has been raised in the pending case of Dogan, although that case also raises the interesting question of whether the standstill clause in the EU/Turkey association precludes the application of a new requirement of this nature. More broadly, the Commission makes a strong argument that any integration requirement must be proportionate and applied on a case-by-case basis, taking account of individual circumstances and the limited access of females to education in some developing countries. There is a very recent case referred to the CJEU (for details, see the annex below; many thanks to Jeremy Bierbach for this information) that will clarify this point.

Next, the Commission rightly states that the waiting period of up to two years must include any ‘legal stay’ of the sponsor even before the sponsor met the conditions for family reunion under the Directive. It also suggests some sound guidance relating to continuity of residence.

Refugees

The Commission’s discussion regarding the special rules for refugees gives the unfortunate impression that all of these rules can be disapplied if the refugee had ‘special links’ with a third State, or did not apply within three months. In fact, only the special rules relating to waiving the conditions in Article 7 are subject to these possible waivers.

However, the Commission does make good points about the high threshold needed to show that a refugee had ‘special links’ with a third State, and the burden of proof which falls on a Member State which wishes to apply this rule. It also rightly states that Member States which require the family member to make an application for family reunion should take account of the particular issues relating to refugees.

Legal challenges

Finally, the Commission makes the sound points that in light of Article 47 of the EU Charter, legal challenges to family reunion decisions must apply to all decisions made pursuant to the Directive, must permit access to a court, and must consider all issues of fact and law, including a review of the merits of decisions.

Conclusions

The Commission’s guidance is largely welcome, subject to the criticisms made above. But it is also rather overdue. One can only hope that it proves useful to national courts and administrations, and that the Commission does not hesitate to bring infringement actions to back up its convictions about the correct interpretation of these key rules facilitating the right to family life of third-country nationals.

 Barnard & Peers: Chapter 26

 Annex – new pending case on integration measures: translation and notes by Jeremy Bierbach

  Preliminary reference from the Council of State of 1 April 2013, cases 201211916/1/V2 and 201300404/1/V2, K. and A. vs. Minister van Buitenlandse Zaken:

 1.a Can the term 'integration conditions' - contained in Art. 7(2) of Directive 2003/86/EC of the Council of the European Union of 22 December 2003 concerning the right to family reunification (PB 2003 L 251, with rectification in PB 2012 L 71) - be interpreted in such a way that the competent national authorities of the member states can require of the family member of a third-country national [Dutch: lit. "family unifier"] that the family member shows that he or she possesses knowledge of the official language of the member state at a level corresponding to level A1 of the Common European Framework of Reference for languages, as well as knowledge at a basic level of the society of the member state, before these authorities grant this family member permission for entry and residence?

 1.b For the answer to this question, is it of importance that, i.a. in the context of the proportionality test as described in the European Commission's Green Paper of 15 November 2011 concerning the right to family reunification, according to national regulations imposing the condition mentioned in 1.a, the application for permission for entry and residence, barring the circumstance that the family member has demonstrated that he or she is durably incapable of taking the integration exam due to a psychological or physical disability, will only not be rejected if a combination of very special individual circumstances are present that justify the assumption that the family member is durably incapable of satisfying the integration conditions?

 2. Does the goal of Directive 2003/86/EC, and in particular Art. 7(2) of it, preclude that the examination to test whether the family member satisfies the aforementioned integration conditions costs €350 for every time that the examination is taken, and that the one-time cost of the study materials to prepare for the examination is €110?

 The basic details of the case: K. is a national of Azerbaijan who applied for a preliminary visa at the Dutch embassy in Ankara for the purpose of applying for a residence permit for stay with her husband (nationality not provided). She submitted a medical statement that she suffers from diabetes, hypertension, coronary disease, hypercholesteremia and morbid obesity, which makes her, in her claim, incapable of taking the Dutch consular integration exam. A. is a national of Nigeria who applied for the same type of preliminary visa at the Dutch embassy in Abuja. She submitted medical documents showing that she suffers from a psychological disorder for which she has to take medication. In both cases, the Deputy Minister of Justice (the political head of the Dutch immigration authority IND, which takes decisions on visas on behalf of the Minister of Foreign Affairs, the formal defendant in this case) denied that the disabilities demonstrated were sufficient to warrant exemption from the consular integration exam. Moreover, the Deputy Minister went on: the consular integration exam does not violate the Directive.

Interpreting the Conditions for Family Reunion

Georgios Milios

PhD candidate on immigration law at the Faculty of Law, University of Barcelona

On 30 April 2014, Advocate General Paolo Mengozzi delivered an opinion on cases Dogan and Noorzia regarding the interpretation of two different provisions of Directive 2003/86 (the family reunification Directive). In particular, the CJEU was asked to consider whether the issue of a residence permit to a family member of a third-country national can be made conditional upon the submission of evidence that the family member has basic knowledge of the language of the Member State concerned and whether Member States may require that in a family reunification case the spouses must be at the age of 21 at the day of submission of the application rather than at the day of the decision regarding this application. The Dogan case also raised the question of whether such measures violated the standstill clause in the EU/Turkey association agreement, but that topic will be the subject of a separate post in this blog.

The AG’s opinion in both cases is definitely worth analysing as the controversial Directive has been widely criticized for being particularly strict with regard to the immigrants’ right to family reunification. Taken that there are indicators that several Member States have not implemented the already strict provisions of the Directive correctly, the AG’s opinions, although lacking binding effect, are very useful as they provide us with a thorough analysis of two crucial provisions of the Directive. Lastly, the AG’s opinion in these cases is suitable for a comparison with the Court’s earlier judgments in Chakroun and in Parliament v. Council.

The provisions at issue in the cases at hand are Art. 7 (2) Directive 2003/86 which provides that ‘Member States may require third country nationals to comply with integration measures, in accordance with national law’ and Art. 4 (5) Directive 2003/86 which 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 facts in Dogan

Mrs. Dogan, who is a Turkish national living in Turkey, applied for a visa in order to join her husband, who is also a Turkish national living in Germany since 1998 and running a company there since 2002. The applicant enclosed in her application a certificate of knowledge of the German language (level A1) from the Goethe Institute stating that she had successfully passed the relevant exam with a grade 62 out of 100. The German Embassy considered that the applicant, being illiterate, had passed the exam out of luck and rejected her application on the grounds that she had not proven knowledge of the German language. The applicant did not appeal against this decision but re-applied to the German Embassy which rejected the application once again stating that the applicant does not have the necessary linguistic knowledge because she is illiterate.

The questions referred for a preliminary ruling to the CJEU

The applicant appealed against this decision to the competent court which decided to refer the following questions for a preliminary ruling to the CJEU: 1)  Does a provision of national law which provides that the acceptance to a Member State of a family member of a Turkish national is made conditional upon the submission of evidence that s/he has basic knowledge of the language of the Member State concerned violate Article 41 (1) of the Additional Protocol to the Association Agreement with Turkey? 2) Does the same provision of national law violate Art. 7 (2) of Directive 2003/86?

The opinion

  

The AG begins his analysis regarding Art. 7 (2) of the Directive with two assumptions. First, the AG notes that the second subparagraph of Art. 7 (2) provides that the integration measures of the first subparagraph can be applied to family members of refugees only after the latter have been granted family reunification. Therefore, a contrario interpretation of the provision shows that Member States can apply integration measures to immigrants who do not have the status of a refugee even before family reunification is granted. In the case at hand, taken that Mr. and Mrs. Dogan did not have refugee status, the German authorities were entitled to apply integration measures before Mrs. Dogan’s admission to Germany. Second, according to the Court’s previous jurisprudence regarding Directive 2003/86, authorisation of family reunification constitutes the ‘general rule’ and the provisions that may limit the exercise of the right to family reunification should be interpreted strictly (see Chakroun para. 43).

 

Furthermore, the AG goes on to consider the actual content of the term ‘integration measures’. In that respect, the AG notes that the term ‘integration measures’ should be distinguished from the term ‘integration conditions’. In his view, the two terms are different and by no means synonymous. This becomes apparent by a comparison between the first and the second paragraph of Art. 7. According to the first paragraph, the person who applies for family reunification may be required to prove that s/he meets several conditions contained in that paragraph. On the contrary, such evidence is not required in the second paragraph of Art. 7. Furthermore, the AG notes that if the legislator’s aim was to ensure that the integration measures referred to in Art. 7 (2) have the same status as of the conditions referred to in Art 7 (1), s/he would have included them as an additional element in the first paragraph and would not add a separate one. It follows that the ‘integration measures’ of Art. 7 (2), although they can be applied before entrance, mainly aim at facilitating integration in the Member States and do not constitute conditions for the acceptance in the territory of the latter.

Furthermore, the AG states that any national law which allows for a rejection of a family reunification application without giving the option of an individualized assessment based on the specific circumstances of each case violates the family reunification Directive. Therefore, a national law which does not take into consideration difficulties such as those concerning the health state of the family member, his/her age, illiteracy, disability and level of education is directly infringing the Directive. The AG further notes that in the present case, the German legislation provides that a spouse may be exempted from the obligation to prove knowledge of German if s/he is not able to provide such evidence due to sickness or physical disability. However, the relevant law does not refer to other personal circumstances such as those described above and does not provide that the personal and family circumstances referred to in Art. 17 of the Directive should be taken into consideration. The AG concludes that the fact that the applicant is illiterate is an obstacle that (in light of her age) may be particularly difficult to overcome and that in these circumstances, the language requirement in the German law is disproportionate to the aim of integration pursued in Art. 7 (2) and undermines the objective of the Directive.

The facts in Noorzia

Mrs. Noorzia, who is an Afghan national, applied on 3 September 2010 for a residence permit in order to join her husband, who is also an Afghan national and is living in Austria. Mrs. and Mr. Noorzia were born on 1 January 1989 and on 1 January 1990 respectively. The Austrian government rejected Mrs. Noorzia’s application as although her husband was 21 years old at the time of the decision regarding family reunification, he was under that age at the time Mrs. Noorzia submitted the application for the residence permit and therefore one of the requirements set out in the law was not met. Indeed, the Austrian legislator explicitly provided that the age limit of 21 years is a requirement for the issue of the residence permit to the spouse and that this requirement should be fulfilled by both spouses at the day of application and not at the day of the decision regarding the issue of the residence permit.  

The questions referred for a preliminary ruling to the CJEU

In these circumstances, the court referred the following question for a preliminary ruling to the CJEU: 1) Does a provision of national law which provides that family reunification may take place only if both spouses are 21 years old at the day of submission of the application for family reunification violate Art. 4 (5) Directive 2003/86?

The opinion

The AG in principle bases his answer on a literal, teleological and systematic interpretation of Art. 4 (5) Directive 2003/86. With regard to the literal interpretation of this provision, the AG notes that Art. 4 (5) provides that the spouse is required to be at the age of 21 before s/he ‘is able to’ join the third-country national. It follows that since the spouse is only ‘able to’ join the third-country national once the application is accepted, the requirement for a minimum age should be fulfilled at the time of the decision on the application for family reunification and not at the time of the submission of the application.

Subsequently, the AG makes a teleological interpretation of the provision. In his view, the aim of the provision is mainly to prevent forced marriages and to ensure better integration for the family member in the host Member State. In that respect, although the AG accepts as a general rule that setting a minimum age for the spouses before family reunification takes place may help in the prevention of forced marriages in the EU, there should be a balance between this aim and the right of spouses who have conducted a genuine marriage to exercise their right to family life as derived from Art. 8 ECHR and Art. 7 of the EU Charter of Fundamental Rights. Furthermore, the AG repeats that according to the Court’s jurisprudence the limitations upon the exercise of the right to family reunification should be interpreted strictly. Taken all the above into consideration, the AG concludes that requiring that the spouses should be at the age of 21 at the time of the submission of the application and not at the time of the decision on the application is less consistent with the objective of the provision. With regards to the provision’s aim for better integration, the AG notes that an extended separation may in fact have negative results as regards the integration of the spouse in the host Member State as such separation may loosen family ties.

Lastly, the AG makes a systematic interpretation of the provision stating that throughout the entire Directive, in the occasions that the EU legislator desired to set the time limit at the day of the submission of the application, s/he did it explicitly (see Art. 4 (6) and Art. 7 (1)). It follows that since the provision at hand does not explicitly refer to the day of submission of the application, the legislator’s intention was to set this time limit at the day of the decision regarding the application for a family reunification. In any event, the AG notes that the applicant can be required to prove when submitting the application that s/he is going to be 21 at the day reunification takes place.

Comments

The AG’s opinions in both cases seem to follow at least to a certain extent the line drawn by the Court in the two previous judgments regarding the family reunification Directive. The most important principle which seems to be picked from the Court’s earlier jurisprudence is that since family reunification constitutes the general rule, the limitations to the right to family reunification should be interpreted strictly and the margin of appreciation left to the Member States should not be used in a way that undermines the objective of the Directive (‘Since authorisation of family reunification is the general rule, the faculty provided for in Article 7 (1) (c) of the Directive must be interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof’ (see Chakroun para. 43)).

Moreover, the AG’s approach in both cases seems to follow the Commission’s guidance with regard to the family reunification Directive (which was discussed in an earlier blog post). In particular, regarding the minimum age provided for in Art. 4 (5), the Commission has stressed that the minimum age requirement should only be applied in order to prevent forced marriages and ensure better integration and in any case, it shall merely constitute one of the factors taken into consideration in the assessment of one particular case. The Commission concludes that the minimum age should be fulfilled at the moment of the effective family reunion and not at the moment of the submission of the application as Art. 4 (5) states that the sponsor and the spouse should be at the age of 21 ‘before the spouse is able to join him/her’ whereas Art. 7, for instance, clearly introduces the words ‘when the application for family reunification is submitted’.

Similarly, with regard to the integration measures referred to in Art 7 (2), the Commission notes that Member States may not refuse entry and stay on their territory to a family member on a sole ground that s/he did not succeed in the integration examination provided for in the domestic legislation of the Member State concerned and that ‘language and integration courses should be offered in an accessible way (available in several locations), be free or at least affordable, and tailored to individual needs, including gender specific needs (e.g. childcare facilities)’.

For all of the above, it becomes apparent that the AG in his opinions seems to adopt an ‘immigrant-friendly’ approach with regard to family reunification and follows the ‘guidance’ of the Court and of the Commission on that issue. This is particularly important taken that the family reunification Directive has been criticized for allowing Member States to set very low standards with regards to the applications for family reunification. To the extent that the Court will adopt a similar approach on the issues at hand, Member States will be further encouraged to apply the derogations and limitations of the Directive in a more favourable way towards immigrants, not only with regard to the integration measures of Art. 7 (2) and the age limit of Art. 4 (5) but to the restrictions set out in the entire Directive. National laws and domestic practices should as a general rule promote family reunification and not rely on strict interpretations of the Directive undermining the objective of the latter.  

Lastly, the AG’s opinions attract the attention for the importance that they attach to the individual assessment of the applications. In both cases, Member States should conduct an individual assessment and take other factors into consideration, such as illiteracy in the case of Mrs. Dogan. The same approach should be followed in the provision regarding the age limit. In case Member States have indicators that the marriage is genuine, they should not reject applications on the sole grounds that the spouses have not reached the corresponding minimum age, since that the risk of a forced marriage does not exist.

Barnard & Peers: chapter 26

 

 

The CJEU transforms family reunion for Turkish citizens

Steve Peers

In this week’s judgment in Dogan, the Court of Justice in effect established a new set of rules for family reunion for most Turkish citizens living in the EU – although those rules will still differ in each Member State.

The case concerned Mrs. Dogan’s application to come to Germany to live with her husband, after spending thirteen (by now sixteen) years apart. She was refused on the grounds that her German language skills were not satisfactory, for even though she passed the relevant language test, her written German was not satisfactory due to illiteracy.

This raised two legal issues. First of all, since her husband ran a business in Germany, did the national rule breach the 1970 Protocol to the EU/Turkey association agreement, which prohibits new restrictions on establishment or the provision of services? Secondly, did the national rules comply with the EU’s family reunion Directive, which permits Member States to require family members to comply with ‘integration measures’?

The Court of Justice decided to answer only the first question. This means that its ruling is only relevant to Turkish nationals, rather than all third-country nationals. Having said that, Turkish nationals make up a large proportion of all third-country nationals in the EU, and the Court’s judgment on this point applies to all Member States, including the UK, Ireland and Denmark, which do not apply the family reunion Directive.

However, it should be noted that the Advocate-General’s opinion also argued that the integration requirement breached the family reunion Directive (see discussion here), and that there is another case before the CJEU which raises this issue (notably the K and A case; see further the Commission's recent guidance on the Directive, discussed here).

The judgment

Previously, the CJEU had held that the standstill on new restrictions on establishment and provision of services was binding, had direct effect, and prevented any new measures making it more difficult to exercise self-employment or provide services. But the previous case law only concerned those persons who were actually self-employed or providing services. Could it extend also to the rules regulating the family members of such persons?

The CJEU said it could. In the Court’s view, where the national law made family reunion ‘difficult or impossible’, the establishment of a self-employed person could be ‘negatively affected, since that person would ‘find himself [or herself] obliged to choose between his [or her] activity in the Member State concerned and his [or her] family life in Turkey’. In this case, the national rule made family reunion more difficult, and so violated the standstill clause.

Finally, the Court noted that a measure infringing the standstill clause could be permissible, if it could be ‘justified by an overriding reason in the public interest’, and was ‘suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. In this case, assuming that the objectives of the national law (preventing forced marriages and promoting integration) were overriding reasons in the public interest, the national law failed the proportionality test, since the refusal of an application on linguistic grounds was automatic, without taking account ‘of the specific circumstances of each case’.

Comments

In order to assess the impact of the Court’s ruling, it is necessary first of all to determine its scope. The geographical scope, as noted already, is all Member States. Also, while the family members of Turkish nationals will usually reside in Turkey, the judgment should logically apply also if those family members reside in another third State, or in a Member State. Although in the latter case, it is possible that EU immigration law, such as the long-term residents’ Directive, might also apply, that legislation is without prejudice to more favourable rules in treaties between the EU and third States.

The temporal scope, as established in the previous Dereci case, is 1973 for the first nine Member States (the date of entry into force of the 1970 Protocol to the association agreement), and the date of joining the EU for all other Member States. That means that the national law in force on that date regarding family reunion cannot be made worse for those joining Turkish nationals. Moreover, as established in Toprak and Oguz, if the national law is made more liberal after that date, the standstill also prevents any reversion to the more restrictive law.

Next, what is the personal scope of the judgment? There are three facets to this issue: the sponsor (ie the Turkish citizen in the EU); the family members who seek to join them; and issues of nationality law.

For the Turkish citizen in the EU, the standstill which the Court discussed here also applies to providers of services, but not (as the Court established in Demirkan) to recipients of services. There is also a parallel standstill relating to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, the rules on access to employment of Turkish workers and their family members cannot be made more restrictive either. The case law on this provision (see most recently the Demir judgment) makes clear that the standstill on workers and the standstill on establishment must be interpreted the same way (although for the first nine Member States, the standstill on workers took effect in 1980, rather than 1973). In particular, the standstill on workers applies to measures concerning their first admission. It must logically also apply to rules on the first admission of the worker’s family members, since workers, like self-employed persons, would otherwise face a choice between carrying on with employment in a Member State and enjoying family life in another country.

As for family members, while this case concerned spouses, it would logically apply to any other family member as well (Mrs. Dogan had also originally applied for two of the couple’s four children to be admitted also). Simply put, the Turkish citizen in the EU could equally face a choice between his or her economic activity and family life with unmarried partners, children, parents or other family members as well.

Next, as for issues of nationality, one question is whether the primary right-holder and/or the family members concerned can still rely on the rule, if they are dual citizens of Turkey and another country. This question appeared to be answered by the CJEU in Kahveci and Inan, in which it ruled that dual citizens of Turkey and a Member State can rely on the EU/Turkey association rules. But in the pending case of Demirci, concerning social security, an Advocate-General has recently argued that dual citizens cannot invoke the rules. The CJEU will likely clarify this issue soon.

Another nationality-related question is whether third-country national family members of Turkish nationals (in this context, meaning family members who are not nationals of Turkey or a Member State) are covered by the standstill rules. It is clear that they are, by analogy with the recent judgment in Dulger.

Next, what is the material scope of the judgment? In other words, what type of rules relating to family reunion are covered? The test is whether the national rule makes family reunion difficult or impossible. This is apt to cover waiting periods, in-country applications, income requirements, fees for applications (see the Sahin judgment), age limits for spouses or children, and accommodation or sickness insurance rules. Furthermore, the standstill should equally apply as regards different categories of sponsors: for instance, more favourable rules that apply to groups such as refugees, long-term residents or highly-skilled workers cannot be made more restrictive either.  

Finally, what about the possibility of justification? The CJEU did not rule directly in this case as to whether prevention of forced marriages and integration were possible grounds of justification, although in Demir it ruled that prevention of irregular immigration could be such a ground. An example of a new rule which could surely be justified would be a ban on admission of family members if they have received a five-year prison sentence, as compared to a ten-year threshold previously. On the other hand, it seems doubtful that a national rule which simply aims to reduce the numbers of Turkish persons’ family members entering the country can be justified, in light of the overall objective of the association agreement of eventually providing for free movement of people and preparing for Turkish accession.

In any event, it is clear from the Dogan judgment that even if a new national restriction is justified, refusals cannot be automatic and must take account of individual cases. The requirement that the restrictions be ‘suitable’ also suggests that they must be the only possible means to achieve their end. More generally, it is surely the case that like any derogation from EU law, such restrictions and their application must also be judged in light of the EU Charter, namely the right to family life and rights of the child. 

Barnard & Peers: chapter 24, chapter 26

Simplifying applications for Schengen visas for third-country national family members of EU citizens: do the new proposals go far enough?

Steve Peers

For many EU citizens whose family members are third-country nationals, particularly if those family members are citizens of an Asian, African or Caribbean country, free movement isn’t as free as it is for others. Unless they are travelling between Schengen countries (as explained below), those EU citizens who wish to visit another Member State with their third-country national family members may have to obtain a visa for their family members first, which can complicate their travel significantly.

This situation would be ameliorated somewhat, if the two proposals regarding visas issued today by the Commission are adopted. One of these proposals would amend the existing rules relating to ‘Schengen visas’, which allow for travel to all Schengen states for a period of three months (ie the EU’s ‘visa code’). The second proposal would create a new ‘touring visa’ for travel for up to one year to Schengen countries. While the proposals have of course not yet been adopted, and may be amended (or not adopted at all) as they go through the EU’s legislative process, they are significant enough to merit some analysis at this early stage.

In fact, these proposals are complex and important enough to merit four separate posts. This first post examines the proposed new rules for third-country national family members of EU citizens. The other three will examine: the visa code proposal; the touring visa proposal; and the important issue which isn’t addressed in these proposals: a protection visa for those fleeing persecution or serious harm.

EU free movement and Schengen compared

First of all, it’s necessary to reiterate which countries are covered by EU free movement law, on the one hand, and Schengen on the other.

The free movement rules, as set out in Directive 2004/38 (the ‘citizens’ Directive’) apply to all Member States, in the context of the citizenship of the EU. They also apply to Norway, Iceland and Liechtenstein, since the citizens’ Directive was extended to those countries pursuant to the treaty establishing a European Economic Area (EEA). The EU also has an agreement on free movement of persons with Switzerland, but that treaty does not apply the citizens’ Directive as such to Switzerland.

The Schengen rules, which abolish internal border checks between the signatories and introduce common rules on external border control and short-term visas, currently apply to 22 Member States, along with Norway, Iceland, Liechtenstein and Switzerland (the ‘Schengen associates’).

The Member States not applying the Schengen rules fall into two categories. On the one hand, the UK and Ireland do not apply Schengen at all (except for a number of flanking rules relating to police cooperation). On the other hand, Romania, Bulgaria, Cyprus and Croatia are obliged to apply all Schengen rules in principle, and do apply some of them (such as the external border rules and the common list of States whose nationals do or don’t need a visa), but do not yet apply all of them. More precisely, the Schengen rules on abolition of internal border controls, including the rules on Schengen visas, will not apply until the other Schengen States unanimously agree that Schengen should be extended to each of these countries.

It should be noted that the UK and Ireland won’t have any vote on the Commission’s new proposals, while the other four States not yet applying the Schengen rules will (given that they will have to apply those rules eventually). For simplicity’s sake, I’ll refer to the latter group of four States as ‘Romania, et al’, and to all six States not currently applying Schengen as ‘non-Schengen States’.

The cross-over between these two regimes is particularly important as regards third-country national (ie, non-EU) family members of EU citizens. They have the right to move and reside freely with their EU citizen family members in other Member States. As regards short-term visa requirements, though, it matters a great deal whether they are living and travelling within the Schengen states or not. Within the Schengen area, they do not need a visa to travel, even if they are not travelling with the EU citizen whom they are related to, because Schengen rules allow any third-country nationals with a residence permit or long-stay visa to travel between Member States. However, if they are travelling from Schengen States to non-Schengen states, or vice versa, or between non-Schengen States, they are subject to rules on visas and border controls.

There are, of course, special rules as regards travel between the UK and Ireland, known as the Common Travel Area, but there’s no need to consider those rules here. Also, since the Commission’s new proposals only relate to Schengen visas, there’s no need to consider here the issues relating to border controls.

 If the third-country national family members of EU citizens seek to enter the UK and Ireland, they are subject to national law, along with the citizens’ Directive. If they seek to enter the Schengen area, they are subject to both the Schengen rules and the citizens’ Directive. If they seek to enter Romania et al, they are subject to national law, subject to the citizens’ Directive and certain aspects of the Schengen rules (the common rules on border controls and visa lists – but not the Schengen visa rules).

All Member States are subject to the citizens’ Directive, so it’s important to examine its provisions first. First of all, in principle third-country national family members of EU citizens have the right to enter the territory with their EU citizen family member (Article 5(1)). They might, however, need a visa (Article 5(2)). Whether they need one or not is determined by national law (as regards the UK and Ireland) or by the EU visa list (as regards the other Member States, including Romania et al). So if a British citizen wishes to visit the Schengen area with her American husband, the husband will not need a visa, because the USA is on the Schengen ‘whitelist’ of states whose nationals don’t need visas. But conversely, if an Irish citizen wishes to visit the Schengen area with his Indian wife, she will need one.

Next, Member States must also exempt from the visa requirement those third-country national family members of EU citizens who hold a special ‘residence card’ issued by another Member State. The exact interpretation of this rule is at issue in the pending McCarthy case, which the CJEU recently heard.

However, the issue affected by today’s proposals is not whether a visa is necessary or not in the first place, but the process which applies in the event that it is. On that point, the citizens’ Directive also states that the family members concerned must have ‘every facility’ to obtain such visas, which shall be ‘free of charge’ and issued on the basis of an ‘accelerated procedure’. There is no further explanation of these concepts in the Directive, but the Commission has now sought to clarify them in the proposal to amend to visa code – to which we now turn.

The visa code proposal

As a general point, the Commission suggests an important clarification of the rules, to specify throughout that the ‘family members’ of EU citizens covered by the visa code are all family members referred to in Article 3 of the citizens’ Directive. This would confirm that these rules would apply not only to the ‘core’ family members (essentially spouses, formal partners, children and parents) referred to in Article 3(1), but also to extended family members referred to in Article 3(2).

This clarifies a point which is ambiguous in the citizens’ Directive: whether the rules on visas (and, in fact, most of the other rules in the Directive) apply to extended family members as well as core family members. True, there is no absolute obligation to admit extended family members, but that does not necessarily mean that they cannot benefit from the rules in the Directive (such as access to employment) if they are admitted, in the same way as core family members. Indeed, in the Commentary on the EU Citizenship Directive, my co-authors and I have argued in detail that they do. At least as regards visas for admission into the Schengen area, this point would be clear.

Substantively, the first rule in the proposal regarding third-country national family members of EU citizens is that they cannot be subject to the requirement to hold a transit visa (Article 3(8); all Article numbers refer to the proposal, not the current version of the visa code). Actually, this provision isn’t new, as it already appears in the current visa code.

The second rule in the proposal is new: it concerns appointments at consulates. Third-country national family members of EU citizens would not need a prior appointment, or could get an immediate appointment (Article 8(4)). Next, there is a simplified rule for the presentation of documents relating to third-country national family members of EU citizens (Article 13(3)). The proposal would also expressly waive the visa application fee for such persons (Article 14(3)), although this simply repeats the wording of the citizens’ Directive. Finally, there are faster deadlines (5 days, with a 10-day maximum) to decide upon the applications of such persons.

However, it should be noted that not all rules are waived or relaxed. Third-country national family members of EU citizens will not be exempt from the fingerprinting requirement, or from having their names and personal data entered into the EU’s Visa Information System. The Commission does not suggest that they should be entitled to a multiple-entry visa as such (Article 21), although that would go a long way toward simplifying their travel to other Member States, which is the essence of free movement. It is arguable that being a family member of an EU citizen would help to satisfy the criteria for obtaining a multiple-entry visa, but it would have been better to provide for this automatically, in all cases, subject to the condition that the person concerned is accompanying an EU citizen.

Even more problematically, the proposal does not expressly exempt the third-country national family members of EU citizens from the substantive rules on the criteria for issuing a visa (Article 19). This is surprising given that the Commission’s own report on the application of that Directive stated that some Member States were wrongly applying the general rules in the visa code to visa applications by third-country national family members of EU citizens. While of course the rules in the citizens’ Directive take precedence, it would be better to refer to them expressly to ensure correct application, just as the proposal expressly includes that Directive’s rules on visa application fee exemptions.

Nor is there any express rule allowing for the issue of a visa at the border (Article 32) – even though this directly contradicts the judgment of the CJEU in the MRAX case.

EU free movement law and ‘touring visas’

The separate proposal on ‘touring visas’ contains no express rules for third-country national family members of EU citizens, other than the general reference to the priority of the free movement rules (Article 1). From one point of view, this is sufficient, since those third-country national family members of EU citizens who wish to visit a series of other Member States (whether those States are Schengen States are not) are entitled to do so if they are accompanying or joining their EU citizen family member, and indeed to do so indefinitely (not for a one-year maximum), as long as they meet the liberal conditions of the citizens’ Directive. From another point of view, however, it would be useful to clarify, for the sake of legal certainty, that those family members cannot be subject to work permit requirements as referred to in the proposal, given that Article 23 of the citizens’ Directive gives the third-country national family members of EU citizens the right to work in any Member State in which they are accompanying or joining their family member.

General points

First of all, there might be an argument over the ‘legal base’ of these proposals, as regards the inclusion of specific rules on third-country national family members of EU citizens. In the Metock judgment, the CJEU said expressly that the Treaty provisions on EU free movement law constituted the correct legal base for regulating the position of third-country national family members of EU citizens. It might possibly be arguable, however, that the EU competence relating to visas could be used to provide for additional detailed rules on this issue, as long as they do not conflict with the rules adopted on the basis of EU free movement law.

Secondly, the inclusion of specific rules on these issues in the visa code risks an a contrario argument being made in the non-Schengen states, to the effect that they are not bound by these rules, since they are not bound by the visa code. But they are certainly bound by the specific obligation to waive visa fees, and by the more general obligation to expedite applications by third-country national family members of EU citizens, since those obligations appear in the citizens’ Directive.


Barnard & Peers: chapter 26

Guardianship, free movement and the rights of the child: the SM judgment

Professor Steve Peers, University of Essex

*This blog post builds on research which contributed to the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

When is a child a ‘family member’? Many people regard others they love dearly as children, parents or other relatives, but the law is rather stricter. This strictness is particularly important where children are involved, in order to ensure their welfare, and where it impacts on immigration law. Moreover, different countries have different approaches to the legal definition of family members. All these issues come to a head in today’s judgment of the CJEU in SM, a case concerning the intersection between EU free movement law and the family law of non-EU countries.

EU law background

The EU’s citizens’ Directive sets out the main rights of EU citizens and their family members to move to other EU countries. It defines family members as including, in Article 2(2)(c):  

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)

It also refers separately to ‘beneficiaries’ of the Directive, in Article 3(2):

2.      Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)      any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The people listed in Article 3(2) are referred to in UK law implementing the Directive as ‘extended family members’, and I will use that term for brevity’s sake. In contrast, I’ll refer to the Article 2 family members, including ‘direct descendants’, as ‘core’ family members.

CJEU case law has touched on the definition of core family members several times, for instance clarifying the concept of ‘dependants’ in Article 2(2)(c): see most recently the CJEU judgment in Reyes, discussed here). But the Court had never been asked to clarify the meaning of ‘direct descendants’, although it had ruled when interpreting previous free movement legislation that children include an EU citizen’s step-children (Baumbast).

As for extended family members, previous CJEU case law (Rahman and Banger) clarified that they have in principle a less far-reaching right than core family members. While core family members have a right to enter and reside, for extended family members ‘entry and residence has only to be facilitated by that Member State’. So the Directive ‘does not oblige the Member States to grant every application for entry and residence submitted by persons who show’ that they fall within the scope of Article 3(2). However, the Court said it was ‘clear from the use of the words “shall facilitate” that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence’ by other third-country nationals, on applications by extended family members. This obligation meant that Member States had to ‘make it possible’ for the extended family members to ‘obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons’. When examining such an application, the authority concerned had to ‘take into account of the various factors that may be relevant in the particular case, such as’ the factors specifically listed in the preamble to the Directive – namely ‘their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

Moreover, in light of the reference to national legislation in Article 3(2), and in the absence of more specific rules in the Directive, the Court ruled that each Member State ‘has a wide discretion as regards the selection of factors to be taken into account’. But there is a core substantive obligation for Member States: their legislation must ‘contain criteria which are consistent with the normal meaning of the term “facilitate” ’—presumably as defined by the Court—‘and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness’. Finally, the Court conceded that Article 3(2) was not directly effective, although ‘an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits set by that Directive’. The subsequent judgment in Banger elaborated upon these procedural rights.

Background to the case

According to the UK Supreme Court judgment which referred questions to the CJEU, this case concerns a French couple married in the UK, who were married in 2001 but were unable to have children of their own. They went to Algeria and applied for the guardianship of a child by means of application of the kafala family law system (the term is also used to refer to a controversial system of migrant worker sponsorship, but this case only concerns family law). Under the Islamic approach to family law, adoption as such is not permitted, but kafala instead provides for a form of guardianship, and is particularly applied for the benefit of orphaned or abandoned children.

The Algerian authorities deemed the French couple suitable guardians, and they were soon accorded guardianship of a girl abandoned at birth (called ‘Susana’ by the Supreme Court: I’ll use that name rather than the impersonal ‘SM’). The husband returned to the UK to work, while the wife stayed in Algeria to look after Susana, seeking to obtain entry clearance for her. The UK authorities refused on the grounds that this was not an adoption as such, and so a long dispute through the legal system got underway.

At first instance, the immigration tribunal ruled in favour of the UK authorities, holding that Susana was neither a core family member or extended family member. On appeal, the Upper Tier tribunal ruled that she was an extended family member. The authorities appealed in turn to the Court of Appeal, which ruled that she was neither. The Supreme Court gave leave to appeal on the ‘extended family member’ point, but subsequently decided to consider both points. Ultimately, Lady Hale’s judgment (with which the other judges agreed) concluded that it was obvious that Susana was an extended family member, but decided to ask the CJEU whether she was a core family member.

Judgment of the CJEU

First of all, the Court noted that the Directive ‘makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of’ the term ‘direct descendant’. Next, it followed (in line with the Court’s usual approach) that ‘the need for a uniform application of EU law and the principle of equality require that the terms of that provision must normally be given an independent and uniform interpretation throughout the European Union’. In the absence of any definition of ‘direct descendant’, the term should be interpreted considering ‘not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part’.

In the Court’s view:

the concept of a ‘direct descendant’ commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person. Where there is no parent-child relationship between the citizen of the Union and the child concerned, that child cannot be described as a ‘direct descendant’ of that citizen for the purposes of Directive 2004/38.

Elaborating further, ‘[a]lthough that concept primarily focuses on the existence of a biological parent-child relationship,’ the aim of the citizens’ Directive is to facilitate free movement rights, and so therefore it must be ‘construed broadly’, including the core family member definition. That meant ‘it covers any parent-child relationship, whether biological or legal’, including adopted children. However, it did not extend to a guardianship system which did not create a legal parent-child relationship.

However, the Court went on to confirm that Susana fell within the concept of an extended family member, as the relevant definition in the Directive is ‘capable of covering the situation of a child who has been placed with citizens of the Union under a legal guardianship system such as Algerian kafala and in respect of whom those citizens assume responsibility for its care, education and protection, in accordance with an undertaking entered into on the basis of the law of the child’s country of origin’. The Court reiterated Member States’ discretion in such cases as referred to in previous cases, but considerably narrowed the discretion on the facts of this case.

This was because of the right to family life in Article 7 of the EU Charter of Rights, which has the ‘same meaning and scope’ of the corresponding right in the European Convention on Human Rights. Case law of the European Court of Human Rights had confirmed that the child-guardian relationship under the kafala system ‘may fall under the definition of family life, having regard to the time spent living together, the quality of the relationship, and the role which the adult assumes in respect of the child’ (referring to Chbihi Loudoudi and Others v. Belgium). Article 8 ECHR ‘protects the individual against arbitrary action by the public authorities and requires those authorities, where the existence of a family tie has been established, to enable that tie to be developed and to establish legal safeguards that render possible the child’s integration in his family’ (referring to Harroudj v. France and Chbihi Loudoudi).

Furthermore, Article 24 of the Charter obliges Member States to ‘take into consideration the best interests of the child’. It followed that when exercising their discretion as regards admission of extended family members, national authorities have to make ‘a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned’. This assessment has to ‘take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.’

Conversely, the assessment has to ‘take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking’. But these risks can’t simply ‘be assumed’ just because the process of the Algerian kafala system ‘is less extensive’ than the adoption procedure in the State where the EU citizens are living, or because Algeria has not signed up to the 1996 Hague Convention on parental responsibility. Rather, it was necessary to weigh such factors up against the other factors which the Court set out.

If this assessment establishes that

the child placed under the Algerian kafala system and its guardians, who are citizens of the Union, are called to lead a genuine family life and that that child is dependent on its guardians, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence as one of the other family members of the citizens of the Union for the purposes of Article 3(2)(a) of [the citizens’ Directive], read in the light of Article 7 and Article 24(2) of the Charter, in order to enable the child to live with its guardians in their host Member State.

This analysis ‘applies a fortiori’ where the refusal to admit the child meant that one of the child’s guardians is in practice prevented from living together in a Member State because one of them needs to stay in a non-EU State to care for the child. As noted above, these were the facts in this case.

Finally, the Court declined to answer the Supreme Court’s separate question about refusing to admit a child if there was a risk of abuse, exploitation or trafficking, because the question was only raised in the event that Susana was considered a core family member. In any event, it should be noted that the Court referred to such issues being considered as part of the assessment of the application to admit Susana as an extended family member.

Comments

The Court’s confirmation that adopted children are covered by the concept of ‘direct descendant’ is not surprising, although it raises the question as to what happens if there are divergences between the adoption rules in the State where the child was adopted and the Member State in which the child lives now. Then again, the previous case law applying free movement law to cover step-children already raised questions (not yet answered) about the interaction between family law and free movement law (ie, who has custody of the step-child), on top of the long-standing case law about the impact of divorce and separation upon free movement rights (see most recently the CJEU’s NA judgment of 2016, which I discussed critically here). One quite striking feature of the Court’s ruling is its apparent assertion that only a parent-child relationship could fall within the concept of ‘direct descendant’: this is, with respect, not consistent with the obvious meaning of the words, as evidenced by the Supreme Court’s assumption that it could also cover grand-children.

The ruling that the term ‘direct descendants’ could not apply to guardianship followed from the Court's definition of ‘direct descendants’ to mean a parent-child relationship, given that the kafala system deliberately does not classify the child’s guardians as parents. Despite that, the French couple in this case understandably sought to bring Susana within the scope of the ‘direct descendants’ concept, because they believed that otherwise the UK would retain residual discretion not to admit her as an extended family member.

This brings us to the most remarkable aspect of the Court’s ruling: the removal of the Member State’s discretion to admit Susana, on condition that the assessment of the factors was positive. Susana’s case appears to fall within the scope of the factors the Court refers to as part of that assessment (the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship with the guardians, the degree of dependency, and the assumption of responsibility for the child). It’s impossible from the outside of this case to know if the risks of abuse or trafficking exist, although of course in the best interests of the child the Court was right to confirm that the assessment should examine whether such factors are present. In other cases with different circumstances, the factors may point to a different conclusion than they do in this case. And today’s judgment raises the interesting question of whether there might be reduced discretion to refuse entry in other extended family cases too – notably cases involving children or partners, and where the impact of refusal might similarly be to prevent free movement rights from being exercised.

Finally, it’s worth putting this case in the broader context. For eight-year old Susana, abandoned at birth by her parents, her guardians have been litigating nearly her entire life to secure her right to stay with them in the UK. It took six years of litigation before four levels of the judicial system before they could confirm that the UK was even obliged to consider her application.  Now the CJEU rules that (depending on the assessment) the UK may be obliged to let her stay. But that’s mainly because of the EU Charter of Rights; and this may be the last judgment concerning the UK and the Charter. If you seek its monument, look at this little girl’s case.   

Barnard & Peers: chapter 13

Photo credit: newstarkafala.org