Silvia Adamo, Postdoctoral Fellow, bEUcitizen – Barriers to European Citizenship/Faculty of Law, University of Copenhagen

This piece examines the expectations for integration placed on Turkish citizens residing in EU Member States seeking family reunification. While the EU Directive on family reunification allows Member States to establish integration requirements, the 2015 CJEU judgment in K and A clarified the limitations of these requirements. Additionally, the 2014 Dogan judgment addressed the standstill clause in the EU-Turkey Association Agreement concerning family reunification for self-employed Turkish nationals. It is important to note that the EU-Turkey agreement applies to all Member States, while the family reunification Directive does not include the UK, Ireland, and Denmark.

The Dogan case is particularly relevant to Denmark, which has a large Turkish population. Following the judgment, the Danish Ministry of Justice recognized that national rules restricting family reunification since 2002 might contradict the standstill clause protecting Turkish nationals. However, the Ministry did not recommend amending these rules, citing uncertainty regarding the restriction test’s scope, including proportionality, for family reunification requirements in Denmark. These requirements include demonstrating the potential for successful integration (for children) and achieved integration (for the sponsoring parent).

This leads to the central question addressed by the CJEU in the Genc case: Can Member States require Turkish children to demonstrate successful integration before granting family reunification with a working parent? The Court’s decision in this case has significant implications for Turkish nationals across all Member States and could extend to restrictions beyond integration requirements.

Facts

The Genc case involved a Turkish national, Mr. Genc, whose father had obtained permanent residency in Denmark. Mr. Genc, then fourteen years old and living in Turkey, applied for family reunification with his father in 2005. His application was denied because he lacked ties to Danish society and spoke only Turkish, making successful integration unlikely. Additionally, his father was not considered well-integrated.

Danish courts, prompted by the Dogan case, referred the matter to the CJEU to clarify the standstill clause’s application, specifically concerning the integration requirement for family reunification. They sought to determine if Denmark’s requirement for successful integration constituted a new restriction for Turkish nationals under Article 13 of Decision No. 1/80, which prohibits new restrictions on employment access for legally residing and employed nationals.

Judgment

The CJEU combined the referred questions and focused on whether the Danish integration requirement constituted a new restriction. It determined that the case concerned the freedom of movement for Turkish workers, falling under the protection of Article 13 of Decision 1/80. The Court also extended the standstill obligation from the Dogan case (which concerned spouses) to other family members, recognizing that restricting family reunification could impact the economic freedom of workers, including Turkish nationals.

The CJEU emphasized that while national laws cannot restrict family reunification for Turkish workers, this does not guarantee a right to family reunification or establishment and residence for family members. However, any measure that further restricts family reunification, such as an integration requirement, is considered a new restriction. This means such restrictions must be justified by public interest and proportionality, as established in case law since Demir. Following Dogan, any new integration requirements must be justified by public interest.

While the CJEU acknowledged that integration can be a legitimate public interest objective, as suggested by Article 79 (4) TFEU, the Danish law failed the proportionality test. The Court found the two-year deadline for fulfilling the integration requirement inadequate for assessing a child’s integration potential or a parent’s intentions. It argued that the deadline disregards individual circumstances, potentially leading to automatic refusals and discrimination against children.

Comments

Denmark’s 2004 integration requirement aimed to discourage prolonged stays of children in their parents’ home countries and promote early integration into Danish society. However, this law faces several criticisms. Firstly, it prioritizes the integration of the sponsoring parent over the child’s integration potential, linking integration to employment and assimilation of values, which disadvantages unemployed or less integrated immigrants seeking family reunification.

Secondly, the narrow interpretation of the law by Danish authorities, focusing on factors like duration of stay and language proficiency, restricts their discretion and hinders consideration of individual circumstances and the best interest of the child. This approach renders the “potential for successful integration” a means to refuse applications based on time spent outside Denmark and lack of Danish language skills.

Thirdly, the requirement disproportionately impacts children aged eight or older who have lived outside Denmark for over two years. In such cases, meeting the integration criteria becomes impossible, making integration the deciding factor, even over a child’s best interest, which contradicts the principle of prioritizing the child’s well-being. This results in denying family reunification for children as young as eight.

The limitations of the Genc judgment are twofold. First, it only protects Turkish nationals, potentially allowing for continued enforcement of this arbitrary integration requirement on other third-country nationals. Second, it only addresses employed Turkish nationals, highlighting the vulnerability of non-economically active citizens in exercising their right to family life. This is evident in the Khachab judgment, delivered a week after Genc, where the CJEU deemed it acceptable for Member States to require non-EU and non-Turkish sponsor parents to demonstrate sufficient financial resources based on past income. Therefore, while the protection of family life for Turkish workers appears to be strengthening, other third-country nationals may continue to face discrimination and limitations on their right to a family life.

Barnard & Peers: chapter 26

JHA4: chapter I:6

[1] Adamo, S. What is ‘A Successful Integration’? Family Reunification and the Rights of Children in Denmark. Retfærd. Nordic Journal of Law and Justice, Year 39, Volume 1/152, 2016, 38–58.