The Cjeu’S Approach On The Minimum Historic Catamenia Requirement For Spouses Inwards An Application For Identify Unit Of Measurement Reunification

Georgios Milios

PhD candidate on immigration police push clit at the Faculty of Law, University of Barcelona

In its latterly decided judgment inwards Noorzia, the CJEU ruled on whether a national police push clit which requires the sponsor in addition to his/her husband to own got reached the historic catamenia of 21 past times the engagement on which the application for identify unit of measurement reunification is submitted (rather than past times the engagement on which the determination on the application is made) is consistent alongside Art. four (5) of the identify unit of measurement reunion Directive (Directive 2003/86/EC). In a peculiarly brief judgment, the Court answers to this inquiry inwards the affirmative. In this post, the judgment is criticised for beingness illiberal in addition to exterior the business drawn past times the Court inwards its before jurisprudence in addition to the European Commission’s guidance on the application of the identify unit of measurement reunification Directive. Not least, the introduce article notices that the judgment departs significantly from the Advocate General’s opinion on the same representative which was plain of written report of an earlier post inwards this blog.

The facts of the representative tin hold upwards summarised every bit follows: Mrs. Noorzia applied for a residence permit inwards monastic say to reunify alongside her hubby who resides inwards Austria. The application was rejected because although Mr. Noorzia would rate the historic catamenia of 21 past times the fourth dimension of the effective reunification, he was nether that historic catamenia at the engagement on which the application was lodged. Indeed, the Austrian police push clit explicitly requires both spouses to hold upwards at the historic catamenia of 21 at the 2nd the application for identify unit of measurement reunification is submitted. In these circumstances, the national courtroom referred the next inquiry to the CJEU for a preliminary ruling: ‘Is Article 4(5) of Directive [2003/86] to hold upwards interpreted every bit precluding a provision [of national law] nether which spouses in addition to registered partners must own got reached the historic catamenia of 21 past times the engagement when the application seeking to hold upwards considered identify unit of measurement members entitled to identify unit of measurement reunification is lodged?’ (para. 11)

Art. four (5) provides that ‘in monastic say to ensure improve integration in addition to to forbid forced marriages Member States may require the sponsor in addition to his/her husband to hold upwards of a minimum age, in addition to at maximum 21 years, before the husband is able to bring together him/her’.

The Court’s judgment

The Court notes that past times non specifying whether the minimum historic catamenia status should hold upwards met at the fourth dimension of the application or at the fourth dimension of the determination on the application for identify unit of measurement reunification, the European Union legislature intended to larn out to the Member States a margin of discretion. Furthermore, the Court adopts the catch that the relevant provision of the Austrian police push clit does non forbid the practice of the right to identify unit of measurement reunification nor homecoming it excessively hard but on the reverse pursues the aim of prevention of forced marriages every bit persons who own got reached the historic catamenia of 21 when the application is submitted are less probable to contract a forced matrimony in addition to convey identify unit of measurement reunification than persons who are nether that historic catamenia at that date. Lastly, the Court holds that the provision of the Austrian police push clit at mitt is consistent alongside the principles of equal handling in addition to legal certainty in addition to ensures that identify unit of measurement reunification depends on circumstances related to the applicant in addition to non on the length of fourth dimension which volition hold upwards needed for the consideration of the application.

In catch of the higher upwards mentioned considerations, the Court concludes that ‘the reply to the inquiry referred is that Article 4(5) of Directive 2003/86 must hold upwards interpreted every bit important that that provision does non preclude a dominion of national police push clit requiring that spouses in addition to registered partners must own got reached the historic catamenia of 21 past times the engagement when the application seeking to hold upwards considered identify unit of measurement members entitled to reunification is lodged’ (para. 19).

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It is apparent that the Court adopts a strict approach towards immigrants inwards this judgment. As noted above, this approach departs from the Advocate General’s thought inwards this case, the European Commission’s guidance on the application of the Directive in addition to to a for certain score from the previous jurisprudence of the Court on identify unit of measurement reunification cases.

In particular, the Commission through its guidance every bit good every bit the Advocate General Paolo Mengozzi clearly province that Art. four (5) should hold upwards interpreted to hateful that the Member States may require the sponsor in addition to the husband to hold upwards at the minimum historic catamenia at the fourth dimension of the effective identify unit of measurement reunification in addition to non at the fourth dimension on which the application is lodged. This approach is based on a literal, teleological in addition to systematic interpretation of the provision at hand. Indeed, every bit the Advocate General correctly notes, the provision of Art. four (5) itself gives the reply to the inquiry every bit it provides that the minimum historic catamenia should hold upwards reached ‘before the husband is able to join’ the sponsor. Therefore, taken that the husband is alone able to bring together the sponsor when a positive determination alongside regards the application for identify unit of measurement reunification is made, the crucial fourth dimension catamenia is the fourth dimension of the effective identify unit of measurement reunification. This beingness said, the Court’s approach that the provision gives a broad margin of discretion to the Member States to determine whether they would develop the fourth dimension bound at the engagement of the application or at the engagement of the determination on the application appears groundless.

Not least, the means that the Court deals alongside the teleological interpretation of the provision seems problematic every bit well. First, it alone refers to the prevention of forced marriages in addition to non to improve integration which besides constitutes a pursued aim of the provision at hand. In that respect, it should hold upwards noted that long identify unit of measurement separations may inwards fact harm integration.

Second, fifty-fifty alongside regards to the aim of prevention of forced marriages, the Court’s approach fails to convey into consideration the right of immature couples to contract a genuine matrimony in addition to relish identify unit of measurement life every bit derived from Art. 8 of the ECHR in addition to Art. seven of the ECFR. This beingness said, the Court should own got at to the lowest degree mentioned (in business alongside its prior representative law) that an private assessment of a representative is peculiarly of import in addition to that inwards representative Member States are convinced that at that spot are no indicators of a forced marriage, they should let identify unit of measurement reunification fifty-fifty if the minimum historic catamenia requirement is non fulfilled at the fourth dimension of the submission of the application. On the contrary, inwards its judgment the Court gives the impression that if the minimum historic catamenia requirement is non fulfilled, the application could hold upwards rejected fifty-fifty when it becomes obvious from other factors that the matrimony is genuine in addition to that the aim for improve integration is non achieved past times refusing the application.

Furthermore, the systematic interpretation made past times the AG is besides missing inwards the Court’s reasoning. As mentioned past times the AG inwards his opinion, when the European Union legislature wished to develop the fourth dimension bound at the solar daytime of the submission of the application, it did in addition to thence explicitly. Therefore, inwards the provision at hand, the legislature’s aim was to develop the fourth dimension bound at the solar daytime of the determination on the application for identify unit of measurement reunification. The Court does non adopt the same approach inwards its judgment in addition to only reads the provision every bit giving a broad margin of appreciation to the Member States to determine when the requirement at mitt should hold upwards fulfilled.

Lastly, the judgment tin hold upwards besides criticised for non beingness inwards business alongside the previous jurisprudence of the Court on the identify unit of measurement reunification Directive. In particular, inwards Chakroun the Court held that identify unit of measurement reunification constitutes the full general rule, the limitations should hold upwards interpreted strictly in addition to the margin of appreciation should hold upwards exercised inwards a means that does non undermine the purposes of the Directive which is to promote identify unit of measurement reunification. In Noorzia, the Court adopts the strictest possible approach towards the immigrants disregarding the higher upwards mentioned principles in addition to recognises a broad margin of appreciation to Member States which inwards about cases may resultant inwards identify unit of measurement reunifications beingness peculiarly hard to achieve.

In conclusion, it should hold upwards mentioned that next the Commission’s guidance in addition to the AG’s thought alongside regards to the interpretation of the identify unit of measurement reunification Directive, the European Union identify unit of measurement reunification authorities seemed to follow a to a greater extent than immigrant-friendly approach, balancing to a for certain score the strict provisions of the Directive. Regrettably, inwards Noorzia the Court seems to convey a pace dorsum adopting a formalistic in addition to strict approach alongside regards to the interpretation of the Directive. In that respect, it should hold upwards added that the Court inwards the latterly decided here) chose to non reply the inquiry regarding the integration status inwards identify unit of measurement reunification Directive, losing about other chance to dominion inwards a favourable means every bit regards identify unit of measurement reunification of third-country nationals nether the Directive.             

Barnard & Peers: chapter 26

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