Keeping up with the (Turkish) family: integration requirements for family reunification in Genc

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

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[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.

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