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
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