Steve Peers

As the new academic year begins, students across the EU are met with a mix of anticipation and anxiety. Juggling academics, finances, personal life, and social activities is a universal experience for students, and those from outside the EU face the added pressure of meeting immigration requirements.

These requirements are standardized by the EU’s 2004 Students’ Directive. However, the degree of uniformity across member states remains unclear. Do individual countries retain the right to impose additional entry prerequisites? Essentially, do non-EU students have a right to be admitted into the EU if they fulfill the Directive’s criteria? In the recent Ben Alaya case, the Court of Justice of the European Union (CJEU) affirmed that they do.

Background

The Students’ Directive, which excludes the UK, Ireland, and Denmark, also covers admission for exchange students, volunteers, and unpaid trainees. However, member states have the option to apply the Directive’s rules concerning the latter three categories. According to the Commission’s report on the Directive’s implementation, most member states haven’t exercised this option.

In 2013, the Commission proposed a revised Directive to incorporate the similar Researchers’ Directive, include paid trainees and au pairs, make all provisions mandatory, and modify some admission rules. While the European Parliament approved its position on this proposal in the spring, Council negotiations appear to be progressing slowly.

The CJEU had previously interpreted this Directive in the Sommer case. It broadly interpreted the rules governing students’ access to employment. This was based on the Directive’s preamble, which aims to establish Europe as a world leader in education and training.

According to the Directive, mandatory conditions for student admission include: a valid travel document; parental consent for minors; health insurance; no threat to public safety, security, or health; payment of application fees; acceptance by a higher education institution; sufficient financial resources; proficiency in the language of instruction; and payment of tuition fees. Member states can waive application or admission fees and language proficiency requirements.

Judgment

Mr. Ben Alaya, a Tunisian citizen, applied to and was accepted by several German universities to study math (including a preparatory language course). However, the German authorities consistently denied him entry, citing inadequate grades, insufficient German language skills, and a lack of connection between his chosen field of study and future career aspirations. The relevant German immigration law only mentions a more flexible language requirement (waiving it if the student enrolls in a language course) without mentioning academic qualifications or career relevance.

The national court asked the CJEU whether there is a right for students to be admitted if they meet the Directive’s criteria.

The Court found that the mandatory nature of student admission rules, contrasted with the discretionary application of rules for other categories, suggests that the admission rules are comprehensive. This interpretation aligns with the Directive’s objective of making the EU a global center of educational excellence by promoting mobility, as stated in the preamble and referenced in the Sommer case. Additionally, because the Directive explicitly permits member states to set more favorable standards, it is illogical to interpret it as allowing them to set less favorable ones.

The Court acknowledged that member states have some discretion when implementing the EU rules. They could request evidence to “assess the coherence” of the application to prevent abuse of the admission process. Finally, the Court concluded that Mr. Ben Alaya appeared to meet the admission requirements and should have been granted a residence permit.

Comments

It is worth noting that the CJEU effectively delineated the responsibilities of educational institutions and immigration authorities. While students must meet academic standards, the Directive implies that educational institutions should apply these criteria. Each member state (or its states in federal systems like Germany) decides whether to legally mandate minimum academic standards for university admission or allow higher education institutions to set their own (potentially higher) standards.

It seems contradictory that the immigration officials, rather than the university, deemed the applicant’s grades insufficient. The Court of Justice judges also considered themselves qualified to review this matter.

Furthermore, it is illogical that immigration officials rejected the applicant based on language proficiency when he was prepared to enroll in the pre-course language program outlined in national law. The notion that immigration officials can assess the link between a student’s chosen field of study and future career aspirations is also peculiar, as it is not mentioned in national law or the Directive. More importantly, it is an illogical criterion for higher education admission because students’ career aspirations change, and they often find employment in fields unrelated to their studies.

The judgment also raises some general points about education policy. Notably, the Directive does not restrict member states’ ability to set tuition fees for non-EU students or regulate their access to financial aid. This differs significantly from the internal market rules that apply to EU students studying in other member states, who have the right to equal treatment in tuition fees, admission standards, quotas, and, in most cases, study finance if they live in that member state.

This judgment is especially significant for Turkish nationals. They have the right to be admitted, the right to work (Sommer), and the right to remain in the territory as Turkish workers (Payir).

Regarding immigration policy, the CJEU ruled last year in Koushkaki that the EU rules for issuing short-term visas are exhaustive. It also ruled last week in Air Baltic that the Schengen Borders Code’s rules for admission at external borders are exhaustive. It has now confirmed that at least some long-term migration rules are exhaustive. While this ruling applies specifically to the Students’ Directive, it implies that other EU immigration law Directives governing admission grounds, such as the Blue Card Directive, Researchers’ Directive, Seasonal Workers’ Directive, and Intra-Corporate Transferees Directive, grant a right of entry. Concerning other legal migration Directives, the Single Permit Directive does not specify grounds for admission, the CJEU confirmed years ago that the Family Reunification Directive grants a right of entry, and the Long-Term Residents Directive presumably grants the right to obtain a long-term residence permit and move to another member state if the Directive’s conditions are met.

Like the Koushkaki and Air Baltic decisions, this is a positive step toward strengthening the rule of law in immigration proceedings. It clarifies that EU immigration law aims to harmonize national rules.

Barnard & Peers: chapter 26