Keeping Upwardly Amongst The (Turkish) Family: Integration Requirements For Solid Unit Of Measurement Reunification Inwards Genc

Silvia Adamo, Postdoctoral Fellow, bEUcitizen – Barriers to European Citizenship/Faculty of Law, University of Copenhagen

What are the legitimate expectations regarding integration before household unit of measurement reunion inwards a Member State, in addition to what is the put of Turkish citizens inwards that equation? The European Union Directive on household unit of measurement reunion for third-country nationals gives Member States an pick to impose such integration requirements before entry of the household unit of measurement members, in addition to the CJEU dealt amongst the limits to the discretion of Member States inwards imposing such requirements inwards a 2015 judgment (here). Moreover, inwards the here), the Court assessed the hit of the standstill clause inwards the protocol to the Association Agreement betwixt European Union in addition to Turkey inwards relation to the atmospheric condition for household unit of measurement reunification for self-employed Turkish nationals. There’s an of import distinction betwixt the 2 legal instruments: all Member States are jump past times the EU/Turkey association agreement, whereas the UK, Republic of Ireland in addition to Kingdom of Denmark opted out of the household unit of measurement reunion Directive.

In that context, the Dogan case attracted the attending of the Danish Ministry of Justice. After all, Turkish nationals are the largest immigrant grouping inwards the country, in addition to the number of household unit of measurement life amongst a tertiary ground national inwards Denmark is really controversial. In a legal note commenting on the representative presently after the judgment inwards Dogan, the Ministry found that the national rules on household unit of measurement reunification (significantly restricted since 2002) could live evaluated every bit constituting novel in addition to to a greater extent than stringent atmospheric condition that are non allowed to live introduced for Turkish nationals, inwards low-cal of the standstill clause. (Note that the protocol to the association understanding has applied since 1973 for the kickoff nine Member States – such every bit Kingdom of Denmark in addition to the Great Britain – but at the appointment of accession for the xix Member States which joined the European Union later). At the same fourth dimension the Ministry did non suggest to ameliorate them. Instead, it assessed that at that spot were ‘doubts’ every bit regards the hit of the restriction test, including the proportionality test, for the manifold requirements for household unit of measurement reunification inwards Denmark. One of the requirements to fulfil for household unit of measurement reunification is that of potential for successful integration (for the child) in addition to of achieved integration (for the sponsor parent).

The inquiry that has forthwith found its way to the courtroom is the following: Can a Member State involve Turkish children to fulfil a successful integration evaluation, before granting them household unit of measurement reunification amongst their economically active parent? The CJEU lately answered this inquiry inwards the Genc case. Its judgment is relevant to household unit of measurement reunion amongst Turkish nationals inwards all Member States – in addition to would apply past times analogy to other forms of novel restrictions on household unit of measurement reunion amongst Turkish citizens likewise integration requirements.

Facts

Mr. Genc is a Turkish national born inwards 1991. His begetter moved to Denmark inwards 1997 in addition to obtained a permanent residence permit at that spot inwards 2001. After the divorce of his parents, his begetter had obtained legal custody over him; even so Mr. Genc continued to alive inwards Turkey amongst his grandparents. In 2005, when he was xiv years old, he applied for household unit of measurement reunion amongst his begetter inwards Denmark, who was at the fourth dimension inwards active employment.

Mr. Genc’s application was denied inwards 2006 past times the Danish Immigration Service, in addition to over again inwards 2007, past times the Ministry of Integration. The reasons for the denial were twofold: having lived inwards Turkey all his life in addition to beingness able to utter exclusively Turkish, the Ministry stated that Mr. Genc had no possibility of establishing sufficient ties amongst the Danish monastic say to permit a successful integration. The other argue given was that his begetter was non considered good integrated either, in addition to therefore he was referred to move on household unit of measurement life through visits to his boy inwards Turkey, every bit he had been doing already.

Mr. Genc brought the representative to the courtroom of kickoff instance in addition to afterward to the Eastern Regional Court, which decided to refer the representative to the CJEU inwards 2014. The Danish national courts are by in addition to large reluctant in addition to non peculiarly active inwards referring cases to the CJEU, but since the Dogan case had stirred the waters merely about the atmospheric condition for household unit of measurement reunification for Turkish nationals, the fourth dimension was ripe to submit to the Court’s evaluation the status for successful integration before household unit of measurement reunion – at to the lowest degree every bit far every bit this grouping of unusual nationals is concerned.

The Danish Aliens Act establishes that a residence permit tin displace live granted upon application to a kid nether the historic menstruum of 15 who wants to alive amongst the parent having amount or partial custody, but exclusively if the kid has non established her ain household unit of measurement yet. The sponsor parent living must live the holder of either Danish citizenship, citizenship inwards i of the Nordic countries, refugee status, a permanent residence permit, or a temporary residence permit that has the possibility of becoming permanent. Other atmospheric condition are: self-sufficiency (the sponsor parent should non live receiving State aid or social safety subsidies); adequate housing; no conviction for abuse against children; in addition to abide by for the best involvement of the child. Different atmospheric condition may apply for refugees.

Finally, the requirement for successful integration demands that if the kid in addition to i of her parents are living inwards their habitation ground or some other country, the residence permit volition live given exclusively if she already has, or has had, a possibility to obtain such an attachment to Denmark that volition constitute a ground for a successful integration. The integration requirement is exclusively applied when to a greater extent than than 2 years overstep from the minute a parent becomes eligible to apply for household unit of measurement reunification to when s/he hold upward files the papers.

Judgment

The referring courtroom formulated iv questions, requesting clarification on the before representative police line of the CJEU on the standstill clause vis-à-vis the Dogan judgment. As a whole, the questions referred reflected the doubts expressed inwards the Ministerial Federal Reserve annotation in addition to concerned the restriction bear witness in addition to proportionality assessment of the integration requirement for household unit of measurement reunification amongst abide by to Article xiii of Decision No. 1/80 on the evolution of the Association Agreement (prohibition on introducing novel restrictions on the atmospheric condition of access to job to legally resident in addition to employed nationals). Unlike the standstill considered inwards the Dogan case, this standstill relates to workers, non self-employed persons, in addition to has applied since 1980 for the kickoff nine Member States.

The CJEU decided to regard the questions referred together, in addition to to focus on evaluating whether the integration requirement inwards Danish police line was to live considered a novel restriction. The Court started past times affirming that the province of affairs inwards inquiry related to the liberty of Turkish workers inside the EU, in addition to therefore it was covered past times Article xiii of Decision 1/80. The CJEU in addition to so affirmed that its interpretation inwards Dogan that applied the standstill obligation to spouses could also live transposed to other household unit of measurement members, since restrictions to household unit of measurement reunification would acquit on the exercise of the economical liberty of (in this case) workers.

Thus the CJEU insists on the fact that -national legislation that restricts household unit of measurement reunification for Turkish workers is covered past times the standstill clause, denying that this is equal to granting a correct to household unit of measurement reunification or a correct of institution in addition to residence for household unit of measurement members (para 44–45).

In monastic say to sustain the exercise of the economical activeness of Turkish nationals, a requirement that farther restricts the possibility of obtaining household unit of measurement reunification must live considered a novel restriction. As such, according to the Court’s representative police line since Demir, national provisions that impose atmospheric condition to a greater extent than stringent than the ones applicable at the fourth dimension of entry into strength of Decision No. 1/80 tin displace exclusively live allowed if the requirement is justified on populace involvement grounds, in addition to is proportional, i.e. apt to accomplish a legitimate objective in addition to non going beyond what is necessary inwards monastic say to attain it. In fact, after Dogan in addition to the hit of the standstill requirement at that spot established, whatsoever novel integration requirements for household unit of measurement reunion tin displace exclusively live introduced on the grounds of populace interest.

The Court invokes Article 79 (4) TFEU, which refers to the prospect of European Union measures on integration of non-EU citizens, to constitute that an integration objective tin displace indeed constitute an overriding argue inwards the populace involvement (para 55– 56). However, the Danish police line at stake inwards this representative did non overstep the proportionality test. In the eyes of the Court, the 2 twelvemonth deadline which imposes the integration requirement is non indicative of the potential for successful integration of the child, nor of the intentions of the parents every bit regards ‘shielding’ their children from the host country’s monastic say (of Federal Reserve annotation is also the persuasion of Advocate General Mengozzi on the non-existence of correlation betwixt a prolonged remain inwards a tertiary ground in addition to the possibilities for integration, at para 48–49 of the opinion). To the contrary, the deadline imposed does non regard the private circumstances of the case, may Pb to automatic in addition to systemic refusals of household unit of measurement reunification which are non suitable to live appealed, in addition to may Pb to discrimination against children inwards similar situations.

Comments

Kingdom of Denmark introduced the requirement of successful integration for household unit of measurement reunification amongst children inwards 2004. The rules had a dual objective: to larn rid of the exercise of children’s so called ‘re-education journeys’ to the parents’ homeland, every bit good every bit to forestall children from beingness left exterior of Kingdom of Denmark every bit long every bit possible before they hit adult age, inwards monastic say to live educated in addition to influenced past times their homeland’s culture, traditions, values, in addition to norms. The maximum historic menstruum at which a kid living abroad tin displace obtain household unit of measurement reunion was lowered to 15 years old. In monastic say to brand certain that those children who would alive inwards Denmark every bit adults would live integrated, they are expected to relocate amongst their parents every bit early on every bit possible inwards monastic say to live exposed to the national culture, language, norms, in addition to values, especially through schooling.

From a critical perspective, the objections that tin displace live raised against the national police line are essentially three.[1] First, when applying the requirement for successful integration, the lack of the integration of the sponsor parent weighs to a greater extent than than the appraisal of the integration potential of the child. Integration inwards Danish police line is connected to participation inwards the labour market, but also to assimilation of national values in addition to norms. Unemployed in addition to non-integrated immigrants are rarely granted the possibility to live household unit of measurement reunited amongst their children inwards Denmark. Family sponsored migration from non-Western countries has been reduced via a string of convoluted rules that conduct keep diminished this channel of legal migration. Integration requirements are inwards this context employed inwards monastic say to boundary migration via household unit of measurement reunification.

Second, every bit also noted past times the CJEU, the national regime conduct keep employed a narrow in addition to literal interpretation of the rules, funding the evaluation on the detailed requirements listed inwards the  preparatory operate to the national police line (duration of stays inwards Kingdom of Denmark in addition to inwards the habitation country, inwards which ground the kid has spent near of her upbringing in addition to gone to school, which linguistic communication the kid speaks, etc.). This limits the discretionary ability of the regime in addition to impairs truly considering the private circumstances of the case, including the best involvement of the child. The requirement of the potential for a successful integration therefore looks to a greater extent than similar a legal structure that renders possible the automatic rejection of household unit of measurement reunification applicants that conduct keep spent too many years inwards their parents’ habitation ground in addition to who create non utter Danish, in addition to where the parent has non been able to bear witness that s/he is good integrated.

Third, the requirement volition ever live applied to children of 8 years or older, where the kid has stayed amongst the other parent exterior of Denmark, when to a greater extent than than 2 years conduct keep passed since the parent could legally apply for household unit of measurement reunification. In these cases, it volition live impossible to fulfil the requirement of potential for successful integration. In this optic, integration becomes a commutation element for evaluating also the best involvement of the child. The child's legal status is made theme on the parent's, in addition to the instrumental interpretation of the regulation of the best involvement of the kid entails that it is the chance for the kid to prepare a social connecter to the host country’s civilisation in addition to monastic say which weighs to a greater extent than than the possibility to alive amongst a parent. Yet, this also agency denying household unit of measurement reunification to children every bit immature every bit 8 years old.

In this light, the limits of the Genc judgment are two, inwards my view: First, it exclusively concerns Turkish nationals, mayhap leaving infinite for continuing to enforce the arbitrary in addition to non-proportional integration requirement onto other tertiary ground nationals in addition to their children. The 2d boundary is that it exclusively concerns employed Turkish nationals, perhaps regrettably highlighting that the correct to household unit of measurement life is precluded for non-economically active citizens. Influenza A virus subtype H5N1 calendar week after Genc, the CJEU held the same stand upward in addition to stated inwards Khachab that a national dominion requiring a (non-EU in addition to non-Turkish) sponsor parent to live inwards possession of sufficient resources (basing that prediction on previous income) before granting household unit of measurement reunification is compatible amongst the Family Reunification Directive. Hence at the same fourth dimension that the protection of the household unit of measurement life of Turkish workers inwards the European Union appears to increase, other tertiary ground nationals may soundless sense discrimination in addition to limits to their household unit of measurement life.

Barnard & Peers: chapter 26

JHA4: chapter I:6

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[1] Adamo, S. What is ‘A Successful Integration’? Family Reunification in addition to the Rights of Children inwards Denmark. Retfærd. Nordic Journal of Law in addition to Justice, Year 39, Volume 1/152, 2016, 38–58.

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