Steve Peers

In recent times, many EU member states have started requiring non-EU citizens to pass an integration test before they can be reunited with their families in the EU. The EU’s family reunification rules allow for this, stating that family members joining non-EU citizens “may be required to comply with integration measures.” However, for family members of refugees and highly skilled migrants with EU Blue Cards, these tests can only be applied after they arrive.

This raises the question: what are the limits, if any, on these integration requirements? The Court of Justice of the European Union (CJEU) addressed this in its judgment on the case of K and A.

Judgment

The case revolved around the Dutch government’s integration requirement for family reunification, which involves a test on Dutch language and society. While exceptions are made for “very special individual circumstances,” family members generally must pay €350 for the course and €110 for study materials. The case involved citizens from Nigeria and Azerbaijan who were denied exemptions from the course due to health reasons. They contested these decisions in the Dutch courts, which then turned to the CJEU for clarification on the EU Directive.

The CJEU began by reiterating previous rulings that emphasized the obligation of member states to grant entry to family members who meet the Directive’s conditions. It affirmed that member states can, in fact, impose integration requirements on family reunification applicants before they enter the country, unless they are joining a refugee. However, drawing upon previous rulings like the Chakroun case concerning minimum income requirements, the court highlighted that the ‘integration’ condition must be applied strictly and cannot be used to undermine the Directive’s core objective: facilitating family reunification.

Furthermore, the court invoked the principle of proportionality, stating that integration measures must directly serve the goal of facilitating the integration of family members. Similar to its stance in the P and S judgment concerning integration measures for long-term non-EU residents, the CJEU acknowledged that tests on language and society are legitimate tools for promoting integration.

However, the court emphasized that the conditions surrounding the integration requirement cannot go beyond this intended purpose. For instance, the requirement would be excessive if it consistently prevents family reunification despite individuals demonstrating a willingness to meet the requirement and making a genuine effort to pass the test. In essence, these tests should aim to facilitate integration, not to “filter” family members.

The CJEU further obligated member states to consider “specific individual circumstances,” including factors like age, literacy, education, financial situation, and health, when potentially exempting individuals from the integration requirement. Failing to do so, according to the court, would create a significant barrier to family reunification and circumvent the requirement for case-by-case assessments of applications. Ultimately, the court determined that the Dutch law exceeded the boundaries established by EU law, as the hardship clause provided fewer exemptions than EU law permits.

Finally, echoing its position on long-term residency, the CJEU ruled that the fees imposed by the Dutch government were too high and hindered the right to family reunification, especially considering travel expenses and the fact that fees applied to test retakes.

Comments

It’s important to note that the family reunification Directive does not apply to the UK, Ireland, or Denmark, nor does it apply to non-EU family members of EU citizens. These situations either fall outside the scope of EU law or are covered by the EU citizens’ Directive, which doesn’t permit integration requirements. Similarly, family members of Turkish citizens face different rules, as new restrictions on their family reunification are subject to a ‘standstill’ requirement. This means new integration requirements for this group can only be introduced if they serve the public interest.

Turning back to the judgment, the CJEU’s decision to uphold the general validity of integration requirements is not unexpected. The legislation explicitly allows for them, and there is a strong argument to be made that newcomers aiming to settle in a country should learn its language and understand its society. However, such requirements also present a potential obstacle to the right to family reunification.

The CJEU’s judgment effectively balances these competing principles. While not explicitly mentioned, the right to family life underpins the court’s reasoning. The court acknowledges a public interest in restricting this right and then subjects this restriction to the principle of proportionality. This means that integration tests must be implemented genuinely and not as a way to simply reduce immigration. The court even implies that individuals who demonstrate a sincere willingness to pass the test and have made significant efforts to do so should not be denied family reunification, even if they have not yet passed.

Importantly, this judgment outlines a non-exhaustive list of scenarios where the principle of proportionality comes into play. It underscores the need to consider individual circumstances, and the list of factors that member states must take into account, such as age, literacy, education, financial status, and health, is not exhaustive. The court also maintains its firm stance against excessive fees charged to migrants by governments, as exemplified in this case with the Netherlands.

This judgment holds particular significance for migrants with lower incomes and those hailing from developing nations, where education levels may differ. While there are valid reasons to encourage migrants to learn their host country’s language and culture, the right of spouses, parents, and children to live together as a family holds equal weight. The court makes a commendable decision by significantly limiting the ability of states to make passing an integration test a prerequisite for family reunification.

Barnard & Peers: chapter 26

Photo credit: vorige.nrc.nl