Georgios Milios

PhD candidate on immigration law at the Faculty of Law, University of Barcelona

The Court of Justice of the European Union (CJEU) recently ruled in the Noorzia case concerning the age requirement for family reunification. The case revolved around whether a national law, requiring both the sponsor and their spouse to be 21 years old when applying for family reunification, aligns with European Union (EU) law. The CJEU determined that the national law was indeed consistent with EU Directive 2003/86/EC. This piece argues that the court’s decision is overly restrictive and deviates from its own past rulings, the European Commission’s guidelines, and the Advocate General’s opinion.

The case involved Mrs. Noorzia, who sought residency in Austria to be with her husband. Although Mr. Noorzia would turn 21 before the actual reunification, his age at the time of application fell short of the Austrian legal requirement. This discrepancy led to a request for clarification from the CJEU regarding the interpretation of Article 4(5) of Directive 2003/86/EC. The article allows Member States to set a minimum age, up to 21 years, for both sponsors and spouses to prevent forced marriages and promote integration.

The CJEU argued that the EU law grants Member States discretion in determining whether the age requirement applies at the time of application or decision. The Austrian law, according to the court, doesn’t hinder family reunification but seeks to prevent forced marriages, as those over 21 at the time of application are less susceptible. The court also maintained that this law upholds principles of equal treatment and legal certainty by linking reunification to the applicant’s circumstances rather than processing time.

This judgment is criticized for its rigid stance on immigration. Contrary to the Advocate General’s opinion, the European Commission’s guidance, and to some extent, its own precedent, the court sides with a stricter interpretation.

Both the Commission and Advocate General Mengozzi argued that the minimum age in Article 4(5) should be met when reunification occurs, not upon application. This interpretation hinges on the phrase “before the spouse is able to join” implying the moment a positive decision is reached. The court’s stance, suggesting broad discretion for Member States on this point, seems baseless.

Furthermore, the court’s focus solely on preventing forced marriages, neglecting the equally important aspect of integration, is problematic. Prolonged family separations can hinder integration.

Even within the context of preventing forced marriages, the court disregards the right to genuine marriage and family life protected by human rights conventions. It should have, at minimum, acknowledged the need for individual case assessment and permitted exceptions for demonstrably genuine marriages where refusal would hinder integration. Instead, the judgment implies potential rejection based solely on age, even with evidence to the contrary.

The court also disregards the Advocate General’s systematic interpretation, which highlighted that the EU legislature explicitly specified the application date when intended. This omission further weakens the court’s argument for broad discretion.

Finally, this judgment contradicts prior case law on the family reunification Directive, such as the Chakroun case. The CJEU previously held that family reunification should be the norm, restrictions interpreted narrowly, and discretion exercised without undermining the directive’s pro-reunification objectives. Noorzia represents a regression to a formalistic and stringent approach, potentially creating undue barriers for family reunification.

In conclusion, while the Commission’s guidance and the Advocate General’s opinion on the family reunification Directive suggested a more immigrant-friendly approach, the CJEU’s decision in Noorzia marks a step back. This stricter interpretation, coupled with the court’s inaction on the integration condition in the recent Dogan judgment, represents a missed opportunity for a more supportive stance on family reunification for third-country nationals under the Directive.

Barnard & Peers: chapter 26