Steve Peers
The Court of Justice’s recent decision in Dogan essentially creates a new framework for family reunification applicable to most Turkish citizens residing in the EU. These rules, however, will vary from one Member State to another.
The case revolved around Mrs. Dogan’s application to join her husband in Germany after a separation of thirteen (now sixteen) years. Her application was rejected due to inadequate German language proficiency. Despite passing the language test, her written German was deemed insufficient because of illiteracy.
This situation raised two legal questions. Firstly, did the national rule, given that Mrs. Dogan’s husband owned a business in Germany, infringe upon the 1970 Protocol to the EU/Turkey association agreement? This agreement prohibits new restrictions on establishing a business or providing services. Secondly, did the national rules align with the EU’s family reunification Directive, which allows Member States to require family members to meet ‘integration measures’?
The Court of Justice opted to address only the first question, making its ruling relevant solely to Turkish nationals rather than all third-country nationals. Nevertheless, Turkish nationals constitute a significant portion of third-country nationals in the EU, and the Court’s judgment on this matter applies to all Member States, including the UK, Ireland, and Denmark, which do not implement the family reunification Directive.
It is important to note that the Advocate-General’s opinion also contended that the integration requirement violated the family reunification Directive. Another case before the CJEU raises this same issue, specifically the K and A case. The Commission’s recent guidance on the Directive further addresses this point.
The judgment
The CJEU had previously determined that the standstill on new restrictions concerning establishment and provision of services was legally binding, had direct effect, and prevented any new measures that hinder the exercise of self-employment or provision of services. However, prior case law only pertained to individuals actively engaged in self-employment or service provision. Could this extend to the regulations governing family members of such individuals?
The CJEU affirmed that it could. The Court reasoned that if national law makes family reunification ‘difficult or impossible,’ it could negatively impact the establishment of self-employed individuals. Such individuals might feel forced to choose between their business pursuits in the Member State and their family life in Turkey. In this instance, the national rule hindered family reunification, thereby violating the standstill clause.
Finally, the Court pointed out that a measure contravening the standstill clause could be permissible if justifiable by an ‘overriding reason in the public interest.’ It also needs to be ‘suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. In this case, even if the objectives of the national law (preventing forced marriages and fostering integration) were considered overriding reasons in the public interest, the national law failed the proportionality test. This was because the refusal of an application based on language proficiency was automatic, without considering ’the specific circumstances of each case.’
Comments
To gauge the impact of the Court’s ruling, we must first determine its scope. As mentioned earlier, the geographical scope encompasses all Member States. Additionally, while family members of Turkish nationals typically reside in Turkey, the judgment should logically extend to situations where these family members reside in another third State or a Member State. In the latter scenario, EU immigration law, such as the long-term residents’ Directive, might also be applicable. However, this legislation does not supersede more favorable rules outlined in treaties between the EU and third States.
The temporal scope, as determined in the previous Dereci case, is 1973 for the first nine Member States (marking the date the 1970 Protocol to the association agreement came into effect). For all other Member States, it is the date they joined the EU. Consequently, for individuals joining Turkish nationals, the national law in effect on that date regarding family reunification cannot be made more stringent. Moreover, as established in Toprak and Oguz, if the national law becomes more lenient after that date, the standstill also prevents any regression to the more restrictive law.
Next, let’s examine the personal scope of the judgment. This involves three aspects: the sponsor (the Turkish citizen residing in the EU), the family members seeking to join them, and nationality law matters.
Concerning the Turkish citizen residing in the EU, the standstill discussed by the Court also applies to service providers but not to recipients of services, as per the Court’s decision in Demirkan. A parallel standstill also pertains to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, rules governing access to employment for Turkish workers and their family members cannot be made more restrictive. Case law on this provision, most recently the Demir judgment, clarifies that the standstill on workers and the standstill on establishment must be interpreted uniformly (though for the first nine Member States, the standstill on workers came into effect in 1980 instead of 1973). Notably, the standstill on workers applies to measures related to their initial entry. Logically, it should also apply to regulations concerning the initial entry of workers’ family members. This is because workers, like self-employed individuals, would otherwise face the dilemma of choosing between pursuing employment in a Member State and maintaining family life in another country.
Regarding family members, while this case focused on spouses, it would logically extend to any other family member. Mrs. Dogan had initially also applied for the admission of two of the couple’s four children. To put it simply, the Turkish citizen residing in the EU could face a similar dilemma of choosing between their economic activity and family life with unmarried partners, children, parents, or other family members.
Moving on to nationality matters, one question is whether the primary right-holder and/or the family members concerned can still depend on the rule if they hold dual citizenship of Turkey and another country. This question seemed to be addressed by the CJEU in Kahveci and Inan. The Court ruled that individuals with dual citizenship of Turkey and a Member State could rely on the EU/Turkey association rules. However, in the ongoing case of Demirci concerning social security, an Advocate-General recently argued that dual citizens cannot invoke these rules. The CJEU will likely clarify this matter soon.
Another nationality-related question is whether third-country national family members of Turkish nationals (in this context, family members who are neither nationals of Turkey nor a Member State) are covered by the standstill rules. It is evident that they are, drawing an analogy from the recent judgment in Dulger.
Now, let’s consider the material scope of the judgment. In other words, what types of rules related to family reunification fall under its purview? The determining factor is whether the national rule makes family reunification challenging or impossible. This is likely to encompass waiting periods, in-country applications, income requirements, application fees (as per the Sahin judgment), age limits for spouses or children, and accommodation or sickness insurance regulations. Furthermore, the standstill should equally apply across different categories of sponsors. For instance, more favorable rules for groups like refugees, long-term residents, or highly-skilled workers cannot be made stricter.
Finally, let’s address the possibility of justification. The CJEU did not directly rule in this case whether preventing forced marriages and integration were valid grounds for justification, although in Demir, it ruled that preventing irregular immigration could be such a ground. An example of a new rule likely justifiable would be prohibiting the admission of family members who have served a five-year prison sentence, compared to a previous ten-year threshold. On the other hand, it seems doubtful that a national rule aiming solely to reduce the number of family members of Turkish nationals entering the country can be justified, considering the association agreement’s overarching goal of eventually allowing the free movement of people and paving the way for Turkish accession.
In any case, the Dogan judgment makes it clear that even if a new national restriction is justified, refusals cannot be automatic and must consider individual circumstances. The requirement for restrictions to be ‘suitable’ also suggests that they must be the sole means of achieving their objective. More broadly, it stands to reason that, like any derogation from EU law, such restrictions and their implementation must also be assessed in light of the EU Charter, namely the right to family life and the rights of the child.
Barnard & Peers: chapter 24, chapter 26