Georgios Milios

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

This piece examines two cases, Dogan and Noorzia, which prompted opinions from Advocate General Paolo Mengozzi on April 30, 2014. These cases center around interpretations of Directive 2003/86, concerning family reunification. Specifically, the Court of Justice of the European Union (CJEU) was tasked with determining if proof of basic language proficiency in a Member State could be a prerequisite for granting residency to a third-country national’s family member. Additionally, the CJEU was asked to assess the legality of Member States mandating that spouses involved in family reunification cases be at least 21 years old when the application is submitted, as opposed to the date of the decision. While the Dogan case also touched upon potential conflicts between these measures and the EU-Turkey association agreement’s standstill clause, that aspect will be explored in a separate analysis.

The AG’s opinions in both cases are noteworthy due to the existing controversy surrounding the Directive, which has been widely criticized for its stringent approach to immigrants’ family reunification rights. Given indications that some Member States haven’t correctly implemented even the Directive’s stringent provisions, the AG’s opinions provide valuable analysis of two crucial provisions, despite lacking binding power. Furthermore, the opinions invite comparison with previous CJEU rulings in the Chakroun and Parliament v. Council cases.

The specific provisions in question are Article 7(2) and Article 4(5) of Directive 2003/86. The former allows Member States to mandate integration measures for third-country nationals according to national law, while the latter allows Member States to implement a minimum age requirement, capped at 21 years, for both the sponsor and their spouse in family reunification cases to prevent forced marriages and promote integration.

In the Dogan case, a Turkish national, Mrs. Dogan, residing in Turkey applied for a visa to join her husband in Germany. Despite providing a German language certificate (level A1) from the Goethe Institute, her application was rejected twice by the German Embassy due to her illiteracy, implying she had not genuinely passed the exam. This rejection prompted the referral of questions to the CJEU for preliminary rulings.

The CJEU was asked to determine if the German law requiring basic language proficiency for residency violated Article 41(1) of the Additional Protocol of the Association Agreement with Turkey, and Article 7(2) of Directive 2003/86.

The AG’s analysis of Article 7(2) is grounded on two key points. First, he argues that this provision allows Member States to apply integration measures to non-refugee immigrants even before family reunification is granted. Second, he highlights existing jurisprudence that considers family reunification the “general rule,” necessitating strict interpretation of provisions limiting this right.

The AG then distinguishes between “integration measures” and “integration conditions,” arguing that they are distinct concepts. He contends that Article 7(2)’s “integration measures,” though applicable pre-entry, primarily aim to facilitate integration and don’t constitute conditions for entry. He further posits that rejecting family reunification applications without considering individual circumstances violates the Directive.

In the AG’s view, the German legislation’s limited consideration for exemptions from the language proficiency requirement, only accounting for illness or disability and not factors like illiteracy, age, or education, directly infringes the Directive. He concludes that the language requirement, in Mrs. Dogan’s case, is disproportionate and undermines the Directive’s objectives.

Meanwhile, the Noorzia case involved Mrs. Noorzia, an Afghan national, seeking residency in Austria to join her husband. Her application was rejected because, although her husband turned 21 by the time a decision was made, he was younger than 21 when the application was submitted. Austrian law explicitly mandated that both spouses be at least 21 years old at the time of application. This led to the referral of a question to the CJEU.

The CJEU was tasked with deciding if the Austrian law requiring both spouses to be 21 at the time of application, rather than the decision, contradicted Article 4(5) of Directive 2003/86.

The AG primarily relies on literal, teleological, and systematic interpretations of Article 4(5). He argues that the wording suggests the age requirement applies when the spouse becomes “able to” join, implying the decision date, not the application date. He further reasons that a strict interpretation aligning with the provision’s aim of preventing forced marriages and ensuring integration suggests that the age requirement should be met at the time of the decision. He highlights that prolonged separation due to this requirement might hinder integration and family ties. Finally, he observes that the Directive elsewhere explicitly specifies the application date when intended, suggesting that the decision date was intended in this instance.

The AG’s opinions in both cases appear consistent with prior CJEU rulings concerning the family reunification Directive, emphasizing a strict interpretation of limitations to family reunification rights and prioritizing the Directive’s objectives. The opinions also echo the Commission’s guidance on the Directive, particularly regarding the application of the minimum age requirement and integration measures.

Overall, the AG demonstrates a stance favoring immigrants’ rights within the framework of family reunification, urging a more flexible and generous application of the Directive’s provisions by Member States. This approach encourages national laws and practices that prioritize family reunification and avoid overly strict interpretations that undermine the Directive’s goals.

Finally, the AG’s opinions underscore the importance of individual assessments in these cases, advocating for consideration of factors beyond those explicitly listed in the Directive. This emphasizes a need for a nuanced approach that acknowledges individual circumstances and avoids blanket rejections solely based on rigid adherence to specific criteria.

Barnard & Peers: chapter 26