The Ups Too Downs Of Dual Citizenship – The Cjeu On Dual Turkish/Eu Citizens Too Social Rights

Professors: Elspeth Guild, Queen Mary University of London; Kees Groenendijk, Radboud University; as well as Steve Peers, University of Essex

In recent years, an increasing reveal of Turkish citizens residing inwards the European Union own got larn dual citizens of Turkey as well as an European Union Member State. Like other dual citizens of a Member State as well as a non-Member State, they tin invoke European Union costless displace constabulary to displace as well as reside inwards some other Member State (see the CJEU’s Micheletti judgment). But equally a full general rule, European Union costless displace constabulary volition non confer rights inwards their dwelling draw of piece of job solid Member State. So inwards that case, tin they silent rely upon their Turkish citizenship to claim rights nether the EU/Turkey association agreement?

Back inwards 2012, inwards its judgment inwards Kahveci as well as Inan, the CJEU determined that dual Turkish/Dutch nationals were entitled to rely on their Turkish citizenship to relish the benefits of the EU/Turkey association understanding equally regards draw of piece of job solid unit of measurement reunification as well as thus escape the stricter national legislation for ain nationals’ draw of piece of job solid unit of measurement members. So until the recent determination before this month in Demirci, it looked equally if Turkish citizens amongst a mo passport from a Member State were to a greater extent than or less costless to conduct which 1 to rely on inwards lodge to produce goodness from European Union law. But the Demirci judgment changes the rules slightly as well as provides a to a greater extent than elaborated legal reasoning to when dual nationals of Turkey as well as a Member State may usage 1 or other of their citizenship.

The finding is rather ominous so nosotros volition start some background on the facts of the instance as well as conclude amongst a rather optimistic analysis where nosotros conclude that dual nationality is silent a rigid root of rights inwards European Union constabulary as well as that this judgment is mayhap the exception.

The Facts:

Mr Demirci as well as his swain applicants are all onetime Turkish workers who had worked inwards the Netherlands for many years fulfilling the weather condition of the secondary legislation of the EU/Turkey Association Agreement, Decision 1/80 of the EU/Turkey Association Council, which regulates aspects of the immigration status of Turkish workers as well as their draw of piece of job solid unit of measurement members. They had all naturalised equally Dutch nationals but kept their Turkish citizenship. They all became disabled as well as incapacitated for run as well as thus permanently left the labour force. They received a Dutch social produce goodness designed to render income for the incapacitated. But this produce goodness is rather depression so they applied for a top upward produce goodness to convey their income closer to that of the minimum wage. They were all awarded the top upward benefit.

Then a serial of things happened. The men retired amongst their families to Turkey. The Dutch Government began to alter the rules on the top upward produce goodness to exclude anyone non resident inwards the Netherlands (or the EU). Mr Demirci as well as his colleagues outset had their top upward produce goodness reduced as well as so it was cutting off altogether on the ground that they no longer lived inwards the Netherlands (or EU). They appealed, relying on their Turkish nationality, on the ground that this handling was reverse to the EU/Turkey Association Agreement mensurate on social safety – Association Council Decision 3/80. The declaration went that the Dutch authorities may live able to cutting off the top upward produce goodness to their ain nationals living exterior the European Union equally this is a thing wholly internal to 1 Member State. But they cannot cutting off the top upward produce goodness to Turkish nationals who own got fulfilled the weather condition equally workers inwards a Member State nether Decision 1/80 equally this is a thing of European Union constabulary (which does non permit such an human activeness – Article 6(1) of Decision 3/80 protects Turkish workers who retire to Turkey equally regards receipt of social benefits). Several years ago, the CJEU ruled inwards Akdas that such rules infringed Decision 3/80 equally regards Turkish nationals who returned to Turkey. But could a dual citizen of Turkey as well as a Member State rely on that judgment, equally a Turkish citizen – or would he or she live prevented from doing so, equally a national of that Member State?  

The reasoning

The CJEU bluntly tells Mr Demirci as well as his colleagues that they cannot rely on Decision 3/80 to object to the residence requirement imposed yesteryear the Dutch authorities (para 52). This is because, according to the Court, the objectives of the Decision as well as the EU/Turkey regime is to ensure the progressive integration of Turkish workers into the territory of the host Member State. The social safety provisions consolidate that objective.

The Court provides 2 top dog reasons for this position. First, because Mr Demirci as well as his colleagues had acquired Dutch nationality they are inwards a item province of affairs equally regards the Agreement. Citizenship is ‘the most accomplished score of integration’ of a individual into the host nation (para 54). This novel citizenship agency that the onetime Turkish worker tin straightaway come inwards as well as reside freely inwards the Netherlands or indeed whatever other European Union Member State where he or she powerfulness wishing to go. Conversely, inwards Kahveci & Inan the Court did non conduct the declaration of the Dutch regime that naturalisation is the pinnacle of integration. In that instance AG Sharpston argued that naturalisation may live an indication that an immigrant is on his path to integration, but that is non the same equally maxim that he has larn completely integrated. .

But equally Turkish nationals, Mr Demirci as well as his friends could only alive inwards Turkey or their host Member State (the Netherlands) as well as so they own got no costless displace rights. Further equally such, they only produce goodness from surely rights inwards the host Member State. So, says the Court, for the purposes of paying them a benefit, it is reasonable for the national authorities to brand this discipline to the same rules equally apply to all other Dutch nationals (para 57).   

Secondly, dual Turkish/Dutch nationals would live placed inwards a meliorate seat than other European Union citizens if they were allowed to own got the top upward produce goodness fifty-fifty though they did non fulfil the residential requirement (para 58). The correct to export to Turkey social benefits inwards Decision 3/80, according to the Court, is a variety of compensation for the fact that Turkish nationals volition no longer live able to render to as well as alive inwards the host Member State. As the CJEU held inwards Bozkurt, a Turkish national ceases to live a protected individual nether Decision 1/80 if he or she becomes totally as well as permanently incapacitated for run (para 64). So in that location is a justification for applying dissimilar rules to those who are solely Turkish nationals equally they own got a much less secure residence status inwards the host Member State as well as no costless displace rights inwards European Union law. They thus require the extra protection of the export right. For dual Turkish/Dutch nationals, they tin e'er displace dorsum to the European Union as well as fulfil the residential requirements for the top upward produce goodness (even if they would rather not) (para 65).

 Distinguishing Kahveci & Inan

As mentioned above, this judgment takes a dissimilar approach from the CJEU’s ain jurisprudence inwards Kahveci & Inan where it held that dual Turkish/Dutch nationals were allowed to rely on their Turkish nationality for the purposes of the EU/Turkey draw of piece of job solid unit of measurement reunification rules, inwards lodge to produce goodness from the expulsion of Turkish workers’ draw of piece of job solid unit of measurement members, which are to a greater extent than favourable than the rules applying to the expulsion of the draw of piece of job solid unit of measurement members of Dutch citizens inwards the Netherlands. However, the CJEU is anxious to protect its ruling inwards Kahveci as well as goes to some lengths to explicate why the finding inwards Kahveci is consistent amongst that which they were giving inwards Demirci (para 66). The declaration goes similar this. Family reunification enhances integration, for Turkish workers who are already legally integrated into the host Member State. Article vii of Decision 1/80 deepens the final integration of a Turkish worker yesteryear granting to that worker’s draw of piece of job solid unit of measurement members, later 3 years residence, access to the labour forcefulness (para 67). So, acquisition of national citizenship could non live used equally a ground to deprive the worker of the produce goodness of draw of piece of job solid unit of measurement reunification inwards Decision 1/80 (para 68). By contrast amongst the facts inwards Demirci, the family’s integration would live hindered if it was denied on the ground of dual citizenship. Further inwards Kahveci the individual was seeking to produce goodness draw of piece of job solid unit of measurement members who are also Turkish nationals (para 70). Presumably this reasoning agency that dual Turkish/EU citizens tin also invoke the ‘standstill’ clause inwards the EU/Turkey association agreement, equally interpreted final twelvemonth inwards the CJEU’s Dogan judgment (discussed here), to avoid stricter rules for draw of piece of job solid unit of measurement reunion that apply to a Member State’s ain nationals.

But inwards the instance of Mr Demirci he tin e'er exceed away dorsum to the Netherlands (or the EU) to satisfy the residential requirement to larn the top upward (para 69). Further all he as well as his colleagues wanted was a top upward produce goodness for themselves (para 71). Finally, the CJEU considered that if Mr Demirci could rely on Decision 1/80 to own got the top upward produce goodness patch non fulfilling the residential requirement, this would position them inwards a meliorate province of affairs than that of other citizens of the Union (and thus contravene Article 59 of the Additional Protocol to the EU/Turkey association agreement, which rules out Turkish citizens beingness meliorate off than European Union citizens).

The Court’s approach seems to live that in that location is something inherently incorrect almost letting Mr Demirci as well as his colleagues own got their cake as well as swallow it too. The arguments may non live the most compelling inwards the ground but they demonstrate a clear judicial line. The CJEU volition favour Turkish nationals living inwards the European Union fifty-fifty if they own got taken a mo citizenship so long equally this improves their long lasting integration. But they cannot rely on their Turkish citizenship later naturalization when what they seek is a fiscal produce goodness which is discipline to a residential requirement for European Union citizens (and which they produce non fulfil because they own got left the EU).

The Court appears to implicitly render somewhat to its reasoning inwards the Mesbah sentence of 1999, where it held that the Moroccan woman rear of a Belgian-Moroccan worker who was living amongst her boy inwards Kingdom of Belgium could non rely on the clause prohibiting discrimination on grounds on nationality inwards the EEC-Morocco Association Agreement to claim a disablement allowance that nether Belgian constabulary was only granted to Belgian nationals. The Court inwards Demirci, however, does explicitly cry for to the divergence amongst Kahveci & Inan: “[in] the acquaint case, yesteryear contrast, the respondents inwards the top dog proceedings are relying on the provisions of Decision 1/80 on their ain behalf as well as inwards their ain interest” (para 70). The Court leaves the door opened upward for the Turkish husband of a Turkish/Dutch (ex-) worker to rely on Decision 3/80, because the spouse, non having Dutch nationality, would live unable to render to the Netherlands.

 

Conclusions

The most of import thing to cry upward almost the Demirci determination is that it does not undermine the Court’s judgment inwards favour of dual rights for dual citizens inwards Kahveci & Inan. Yes, Turkish nationals tin rely on the EU/Turkey association understanding draw of piece of job solid unit of measurement reunion rules fifty-fifty later they own got naturalized inwards their host Member State, provided they are allowed to own got dual nationality (it isn’t yet clear if they could invoke the EU’s ain draw of piece of job solid unit of measurement reunion Directive). But they cannot rely on their non-EU citizenship later they larn out the European Union to larn some a national residential requirement for the export of a social produce goodness if such a requirement applies to nationals of the host Member State.

Barnard & Peers: chapter 13, chapter 26

Photo credit: www.dw.de

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