Interpreting The Weather For Solid Unit Of Measurement Reunion

Georgios Milios

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

On thirty Apr 2014, Advocate General Paolo Mengozzi delivered an sentiment on cases Dogan in addition to Noorzia regarding the interpretation of ii dissimilar provisions of Directive 2003/86 (the household unit of measurement reunification Directive). In particular, the CJEU was asked to consider whether the number of a residence permit to a household unit of measurement fellow member of a third-country national tin dismiss live on made conditional upon the submission of evidence that the household unit of measurement fellow member has basic cognition of the linguistic communication of the Member State concerned in addition to whether Member States may require that inwards a household unit of measurement reunification representative the spouses must live on at the historic menses of 21 at the twenty-four hours of submission of the application rather than at the twenty-four hours of the determination regarding this application. The Dogan representative likewise raised the interrogation of whether such measures violated the standstill clause inwards the EU/Turkey association agreement, but that theme volition live on the champaign of written report of a dissever post inwards this blog.

The AG’s sentiment inwards both cases is definitely worth analysing every bit the controversial Directive has been widely criticized for beingness peculiarly strict amongst regard to the immigrants’ right to household unit of measurement reunification. Taken that at that topographic point are indicators that several Member States possess got non implemented the already strict provisions of the Directive correctly, the AG’s opinions, although lacking binding effect, are real useful every bit they supply us amongst a thorough analysis of ii crucial provisions of the Directive. Lastly, the AG’s sentiment inwards these cases is suitable for a comparing amongst the Court’s before judgments inwards Chakroun in addition to inwards Parliament v. Council.

The provisions at number inwards the cases at paw are Art. seven (2) Directive 2003/86 which provides that ‘Member States may require tertiary solid reason nationals to comply amongst integration measures, inwards accordance amongst national law’ in addition to Art. 4 (5) Directive 2003/86 which provides that ‘In society to ensure ameliorate integration in addition to to forestall forced marriages Member States may require the sponsor in addition to his/her wife to live on of a minimum age, in addition to at maximum 21 years, before the wife is able to bring together him/her’.

The facts inwards Dogan

Mrs. Dogan, who is a Turkish national living inwards Turkey, applied for a visa inwards society to bring together her husband, who is likewise a Turkish national living inwards Deutschland since 1998 in addition to running a fellowship at that topographic point since 2002. The applicant enclosed inwards her application a certificate of cognition of the German linguistic communication language (level A1) from the Goethe Institute stating that she had successfully passed the relevant exam amongst a degree 62 out of 100. The German linguistic communication Embassy considered that the applicant, beingness illiterate, had passed the exam out of luck in addition to rejected her application on the grounds that she had non proven cognition of the German linguistic communication language. The applicant did non appeal against this determination but re-applied to the German linguistic communication Embassy which rejected the application in ane lawsuit once again stating that the applicant does non possess got the necessary linguistic cognition because she is illiterate.

The questions referred for a preliminary ruling to the CJEU

The applicant appealed against this determination to the competent courtroom which decided to refer the next questions for a preliminary ruling to the CJEU: 1)  Does a provision of national constabulary which provides that the credence to a Member State of a household unit of measurement fellow member of a Turkish national is made conditional upon the submission of evidence that s/he has basic cognition of the linguistic communication of the Member State concerned violate Article 41 (1) of the Additional Protocol to the Association Agreement amongst Turkey? 2) Does the same provision of national constabulary violate Art. seven (2) of Directive 2003/86?

The opinion

  

The AG begins his analysis regarding Art. seven (2) of the Directive amongst ii assumptions. First, the AG notes that the 2nd subparagraph of Art. seven (2) provides that the integration measures of the outset subparagraph tin dismiss live on applied to household unit of measurement members of refugees entirely subsequently the latter possess got been granted household unit of measurement reunification. Therefore, a contrario interpretation of the provision shows that Member States tin dismiss apply integration measures to immigrants who do non possess got the status of a refugee fifty-fifty before household unit of measurement reunification is granted. In the representative at hand, taken that Mr. in addition to Mrs. Dogan did non possess got refugee status, the German linguistic communication authorities were entitled to apply integration measures before Mrs. Dogan’s admission to Germany. Second, according to the Court’s previous jurisprudence regarding Directive 2003/86, potency of household unit of measurement reunification constitutes the ‘general rule’ in addition to the provisions that may boundary the exercise of the right to household unit of measurement reunification should live on interpreted strictly (see Chakroun para. 43).

 

Furthermore, the AG goes on to consider the actual content of the term ‘integration measures’. In that respect, the AG notes that the term ‘integration measures’ should live on distinguished from the term ‘integration conditions’. In his view, the ii price are dissimilar in addition to past times no agency synonymous. This becomes apparent past times a comparing betwixt the outset in addition to the 2nd paragraph of Art. 7. According to the outset paragraph, the mortal who applies for household unit of measurement reunification may live on required to evidence that s/he meets several weather contained inwards that paragraph. On the contrary, such evidence is non required inwards the 2nd paragraph of Art. 7. Furthermore, the AG notes that if the legislator’s aim was to ensure that the integration measures referred to inwards Art. seven (2) possess got the same status every bit of the weather referred to inwards Art seven (1), s/he would possess got included them every bit an additional chemical ingredient inwards the outset paragraph in addition to would non add together a dissever one. It follows that the ‘integration measures’ of Art. seven (2), although they tin dismiss live on applied before entrance, mainly aim at facilitating integration inwards the Member States in addition to do non found weather for the credence inwards the territory of the latter.

Furthermore, the AG states that whatever national constabulary which allows for a rejection of a household unit of measurement reunification application without giving the selection of an individualized assessment based on the specific circumstances of each representative violates the household unit of measurement reunification Directive. Therefore, a national constabulary which does non bring into consideration difficulties such every bit those concerning the wellness province of the household unit of measurement member, his/her age, illiteracy, disability in addition to bird of instruction is direct infringing the Directive. The AG farther notes that inwards the nowadays case, the German linguistic communication legislation provides that a wife may live on exempted from the obligation to evidence cognition of German linguistic communication if s/he is non able to supply such evidence due to sickness or physical disability. However, the relevant constabulary does non refer to other personal circumstances such every bit those described inwards a higher identify in addition to does non supply that the personal in addition to household unit of measurement circumstances referred to inwards Art. 17 of the Directive should live on taken into consideration. The AG concludes that the fact that the applicant is illiterate is an obstruction that (in lite of her age) may live on peculiarly hard to overcome in addition to that inwards these circumstances, the linguistic communication requirement inwards the German linguistic communication constabulary is disproportionate to the aim of integration pursued inwards Art. seven (2) in addition to undermines the objective of the Directive.

The facts inwards Noorzia

Mrs. Noorzia, who is an Afghan national, applied on three September 2010 for a residence permit inwards society to bring together her husband, who is likewise an Afghan national in addition to is living inwards Austria. Mrs. in addition to Mr. Noorzia were born on 1 Jan 1989 in addition to on 1 Jan 1990 respectively. The Austrian regime rejected Mrs. Noorzia’s application every bit although her married adult man was 21 years one-time at the fourth dimension of the determination regarding household unit of measurement reunification, he was nether that historic menses at the fourth dimension Mrs. Noorzia submitted the application for the residence permit in addition to thence ane of the requirements laid out inwards the constabulary was non met. Indeed, the Austrian legislator explicitly provided that the historic menses boundary of 21 years is a requirement for the number of the residence permit to the wife in addition to that this requirement should live on fulfilled past times both spouses at the twenty-four hours of application in addition to non at the twenty-four hours of the determination regarding the number of the residence permit.  

The questions referred for a preliminary ruling to the CJEU

In these circumstances, the courtroom referred the next interrogation for a preliminary ruling to the CJEU: 1) Does a provision of national constabulary which provides that household unit of measurement reunification may bring identify entirely if both spouses are 21 years one-time at the twenty-four hours of submission of the application for household unit of measurement reunification violate Art. 4 (5) Directive 2003/86?

The opinion

The AG inwards regulation bases his respond on a literal, teleological in addition to systematic interpretation of Art. 4 (5) Directive 2003/86. With regard to the literal interpretation of this provision, the AG notes that Art. 4 (5) provides that the wife is required to live on at the historic menses of 21 before s/he ‘is able to’ bring together the third-country national. It follows that since the wife is entirely ‘able to’ bring together the third-country national in ane lawsuit the application is accepted, the requirement for a minimum historic menses should live on fulfilled at the fourth dimension of the determination on the application for household unit of measurement reunification in addition to non at the fourth dimension of the submission of the application.

Subsequently, the AG makes a teleological interpretation of the provision. In his view, the aim of the provision is mainly to forestall forced marriages in addition to to ensure ameliorate integration for the household unit of measurement fellow member inwards the host Member State. In that respect, although the AG accepts every bit a full general dominion that setting a minimum historic menses for the spouses before household unit of measurement reunification takes identify may assistance inwards the prevention of forced marriages inwards the EU, at that topographic point should live on a residue betwixt this aim in addition to the right of spouses who possess got conducted a genuine union to exercise their right to household unit of measurement life every bit derived from Art. 8 ECHR in addition to Art. seven of the European Union Charter of Fundamental Rights. Furthermore, the AG repeats that according to the Court’s jurisprudence the limitations upon the exercise of the right to household unit of measurement reunification should live on interpreted strictly. Taken all the inwards a higher identify into consideration, the AG concludes that requiring that the spouses should live on at the historic menses of 21 at the fourth dimension of the submission of the application in addition to non at the fourth dimension of the determination on the application is less consistent amongst the objective of the provision. With regards to the provision’s aim for ameliorate integration, the AG notes that an extended separation may inwards fact possess got negative results every bit regards the integration of the wife inwards the host Member State every bit such separation may loosen household unit of measurement ties.

Lastly, the AG makes a systematic interpretation of the provision stating that throughout the entire Directive, inwards the occasions that the European Union legislator desired to laid the fourth dimension boundary at the twenty-four hours of the submission of the application, s/he did it explicitly (see Art. 4 (6) in addition to Art. seven (1)). It follows that since the provision at paw does non explicitly refer to the twenty-four hours of submission of the application, the legislator’s intention was to laid this fourth dimension boundary at the twenty-four hours of the determination regarding the application for a household unit of measurement reunification. In whatever event, the AG notes that the applicant tin dismiss live on required to evidence when submitting the application that s/he is going to live on 21 at the twenty-four hours reunification takes place.

Comments

The AG’s opinions inwards both cases look to follow at to the lowest degree to a sure enough extent the line of piece of occupation drawn past times the Court inwards the ii previous judgments regarding the household unit of measurement reunification Directive. The almost of import regulation which seems to live on picked from the Court’s before jurisprudence is that since household unit of measurement reunification constitutes the full general rule, the limitations to the right to household unit of measurement reunification should live on interpreted strictly in addition to the margin of appreciation left to the Member States should non live on used inwards a way that undermines the objective of the Directive (‘Since potency of household unit of measurement reunification is the full general rule, the faculty provided for inwards Article seven (1) (c) of the Directive must live on interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised every bit having must non live on used past times them inwards a fashion which would undermine the objective of the Directive, which is to promote household unit of measurement reunification, in addition to the effectiveness thereof’ (see Chakroun para. 43)).

Moreover, the AG’s approach inwards both cases seems to follow the Commission’s guidance amongst regard to the household unit of measurement reunification Directive (which was discussed inwards an before blog post). In particular, regarding the minimum historic menses provided for inwards Art. 4 (5), the Commission has stressed that the minimum historic menses requirement should entirely live on applied inwards society to forestall forced marriages in addition to ensure ameliorate integration in addition to inwards whatever case, it shall only found ane of the factors taken into consideration inwards the assessment of ane item case. The Commission concludes that the minimum historic menses should live on fulfilled at the minute of the effective household unit of measurement reunion in addition to non at the minute of the submission of the application every bit Art. 4 (5) states that the sponsor in addition to the wife should live on at the historic menses of 21 ‘before the wife is able to bring together him/her’ whereas Art. 7, for instance, clearly introduces the words ‘when the application for household unit of measurement reunification is submitted’.

Similarly, amongst regard to the integration measures referred to inwards Art seven (2), the Commission notes that Member States may non turn down entry in addition to rest on their territory to a household unit of measurement fellow member on a sole Blue Planet that s/he did non succeed inwards the integration essay out provided for inwards the domestic legislation of the Member State concerned in addition to that ‘language in addition to integration courses should live on offered inwards an accessible way (available inwards several locations), live on costless or at to the lowest degree affordable, in addition to tailored to private needs, including sex specific needs (e.g. childcare facilities)’.

For all of the above, it becomes apparent that the AG inwards his opinions seems to adopt an ‘immigrant-friendly’ approach amongst regard to household unit of measurement reunification in addition to follows the ‘guidance’ of the Court in addition to of the Commission on that issue. This is peculiarly of import taken that the household unit of measurement reunification Directive has been criticized for allowing Member States to laid real depression standards amongst regards to the applications for household unit of measurement reunification. To the extent that the Court volition adopt a similar approach on the issues at hand, Member States volition live on farther encouraged to apply the derogations in addition to limitations of the Directive inwards a to a greater extent than favourable way towards immigrants, non entirely amongst regard to the integration measures of Art. seven (2) in addition to the historic menses boundary of Art. 4 (5) but to the restrictions laid out inwards the entire Directive. National laws in addition to domestic practices should every bit a full general dominion promote household unit of measurement reunification in addition to non rely on strict interpretations of the Directive undermining the objective of the latter.  

Lastly, the AG’s opinions attract the attending for the importance that they attach to the private assessment of the applications. In both cases, Member States should acquit an private assessment in addition to bring other factors into consideration, such every bit illiteracy inwards the representative of Mrs. Dogan. The same approach should live on followed inwards the provision regarding the historic menses limit. In representative Member States possess got indicators that the union is genuine, they should non reject applications on the sole grounds that the spouses possess got non reached the corresponding minimum age, since that the run a hazard of a forced union does non exist.

Barnard & Peers: chapter 26

 

 

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