The Cjeu Transforms Identify Unit Of Measurement Reunion For Turkish Citizens

Steve Peers

In this week’s judgment inward Dogan, the Court of Justice inward resultant established a novel laid of rules for menage unit of measurement reunion for most Turkish citizens living inward the European Union – although those rules volition withal differ inward each Member State.

The instance concerned Mrs. Dogan’s application to come upward to Federal Republic of Federal Republic of Germany to alive amongst her husband, afterwards spending 13 (by directly sixteen) years apart. She was refused on the grounds that her German linguistic communication language skills were non satisfactory, for fifty-fifty though she passed the relevant linguistic communication test, her written German linguistic communication was non satisfactory due to illiteracy.

This raised ii legal issues. First of all, since her hubby ran a delineate of piece of work organisation inward Germany, did the national dominion breach the 1970 Protocol to the EU/Turkey association agreement, which prohibits novel restrictions on institution or the provision of services? Secondly, did the national rules comply amongst the EU’s family reunion Directive, which permits Member U.S. of A. to remove menage unit of measurement members to comply amongst ‘integration measures’?

The Court of Justice decided to reply alone the commencement question. This agency that its ruling is alone relevant to Turkish nationals, rather than all third-country nationals. Having said that, Turkish nationals brand upward a large proportion of all third-country nationals inward the EU, in addition to the Court’s judgment on this signal applies to all Member States, including the UK, Republic of Ireland in addition to Denmark, which do non apply the menage unit of measurement reunion Directive.

However, it should move noted that the Advocate-General’s sentiment also argued that the integration requirement breached the menage unit of measurement reunion Directive (see give-and-take here), in addition to that at that spot is roughly other instance earlier the CJEU which raises this number (notably the here).

The judgment

Previously, the CJEU had held that the standstill on novel restrictions on institution in addition to provision of services was binding, had direct effect, in addition to prevented whatever novel measures making it to a greater extent than hard to practice self-employment or supply services. But the previous instance police alone concerned those persons who were actually self-employed or providing services. Could it extend also to the rules regulating the family members of such persons?

The CJEU said it could. In the Court’s view, where the national police made menage unit of measurement reunion ‘difficult or impossible’, the institution of a self-employed individual could move ‘negatively affected, since that individual would ‘find himself [or herself] obliged to conduct betwixt his [or her] action inward the Member State concerned in addition to his [or her] menage unit of measurement life inward Turkey’. In this case, the national dominion made menage unit of measurement reunion to a greater extent than difficult, in addition to and thence violated the standstill clause.

Finally, the Court noted that a mensurate infringing the standstill clause could move permissible, if it could move ‘justified yesteryear an overriding ground inward the populace interest’, in addition to was ‘suitable to attain the legitimate objective pursued in addition to does non teach beyond what is necessary inward social club to attain it’. In this case, assuming that the objectives of the national police (preventing forced marriages in addition to promoting integration) were overriding reasons inward the populace interest, the national police failed the proportionality test, since the refusal of an application on linguistic grounds was automatic, without taking delineate of piece of work organisation human relationship ‘of the specific circumstances of each case’.

Comments

In social club to assess the impact of the Court’s ruling, it is necessary commencement of all to determine its scope. The geographical scope, as noted already, is all Member States. Also, piece the menage unit of measurement members of Turkish nationals volition ordinarily reside inward Turkey, the judgment should logically apply also if those menage unit of measurement members reside inward roughly other 3rd State, or inward a Member State. Although inward the latter case, it is possible that European Union immigration law, such as the long-term residents’ Directive, powerfulness also apply, that legislation is without prejudice to to a greater extent than favourable rules inward treaties betwixt the European Union in addition to 3rd States.

The temporal scope, as established inward the previous Dereci case, is 1973 for the commencement ix Member U.S. of A. (the appointment of entry into forcefulness of the 1970 Protocol to the association agreement), in addition to the appointment of joining the European Union for all other Member States. That agency that the national police inward forcefulness on that appointment regarding menage unit of measurement reunion cannot move made worse for those joining Turkish nationals. Moreover, as established inward Toprak in addition to Oguz, if the national police is made to a greater extent than liberal afterwards that date, the standstill also prevents whatever reversion to the to a greater extent than restrictive law.

Next, what is the personal scope of the judgment? There are 3 facets to this issue: the sponsor (ie the Turkish citizen inward the EU); the menage unit of measurement members who seek to bring together them; in addition to issues of nationality law.

For the Turkish citizen inward the EU, the standstill which the Court discussed hither also applies to providers of services, but non (as the Court established inward Demirkan) to recipients of services. There is also a parallel standstill relating to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, the rules on access to occupation of Turkish workers in addition to their menage unit of measurement members cannot move made to a greater extent than restrictive either. The instance police on this provision (see most lately the Demir judgment) makes clear that the standstill on workers in addition to the standstill on institution must move interpreted the same way (although for the commencement ix Member States, the standstill on workers took resultant inward 1980, rather than 1973). In particular, the standstill on workers applies to measures concerning their commencement admission. It must logically also apply to rules on the commencement admission of the worker’s menage unit of measurement members, since workers, similar self-employed persons, would otherwise appear upward a selection betwixt carrying on amongst occupation inward a Member State in addition to enjoying menage unit of measurement life inward roughly other country.

As for menage unit of measurement members, piece this instance concerned spouses, it would logically apply to whatever other menage unit of measurement fellow member as good (Mrs. Dogan had also originally applied for ii of the couple’s 4 children to move admitted also). Simply put, the Turkish citizen inward the European Union could as appear upward a selection betwixt his or her economical action in addition to menage unit of measurement life amongst single partners, children, parents or other menage unit of measurement members as well.

Next, as for issues of nationality, 1 query is whether the main right-holder and/or the menage unit of measurement members concerned tin withal rely on the rule, if they are dual citizens of Turkey in addition to roughly other country. This query appeared to move answered yesteryear the CJEU inward Kahveci in addition to Inan, inward which it ruled that dual citizens of Turkey in addition to a Member State tin rely on the EU/Turkey association rules. But inward the pending instance of Demirci, concerning social security, an Advocate-General has lately argued that dual citizens cannot invoke the rules. The CJEU volition probable clarify this number soon.

Another nationality-related query is whether third-country national menage unit of measurement members of Turkish nationals (in this context, important menage unit of measurement members who are non nationals of Turkey or a Member State) are covered yesteryear the standstill rules. It is clear that they are, yesteryear analogy amongst the recent judgment inward Dulger.

Next, what is the material scope of the judgment? In other words, what type of rules relating to menage unit of measurement reunion are covered? The evidence is whether the national dominion makes menage unit of measurement reunion hard or impossible. This is apt to comprehend waiting periods, in-country applications, income requirements, fees for applications (see the Sahin judgment), historic stream limits for spouses or children, in addition to accommodation or sickness insurance rules. Furthermore, the standstill should as apply as regards dissimilar categories of sponsors: for instance, to a greater extent than favourable rules that apply to groups such as refugees, long-term residents or highly-skilled workers cannot move made to a greater extent than restrictive either.  

Finally, what nearly the possibility of justification? The CJEU did non dominion straight inward this instance as to whether prevention of forced marriages in addition to integration were possible grounds of justification, although inward Demir it ruled that prevention of irregular immigration could move such a ground. An instance of a novel dominion which could sure move justified would move a ban on admission of menage unit of measurement members if they cause got received a five-year prison theatre sentence, as compared to a ten-year threshold previously. On the other hand, it seems doubtful that a national dominion which but aims to trim back the numbers of Turkish persons’ menage unit of measurement members entering the province tin move justified, inward low-cal of the overall objective of the association understanding of eventually providing for costless travail of people in addition to preparing for Turkish accession.

In whatever event, it is clear from the Dogan judgment that fifty-fifty if a novel national restriction is justified, refusals cannot move automatic in addition to must accept delineate of piece of work organisation human relationship of private cases. The requirement that the restrictions move ‘suitable’ also suggests that they must move the alone possible agency to attain their end. More generally, it is sure the instance that similar whatever derogation from European Union law, such restrictions in addition to their application must also move judged inward low-cal of the European Union Charter, namely the correct to menage unit of measurement life in addition to rights of the child. 

Barnard & Peers: chapter 24, chapter 26

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