Countries in Europe have increasingly adopted immigration rules that explicitly test an applicant’s ‘ability to be integrated’ into the host society. This controversial idea goes beyond formal citizenship acquisition to prioritise, for example, the specific level of ‘attachment’ with the host society or level of knowledge of the host country language. Such individual capacity tests, which in practice particularly affect black Europeans and third country nationals from Africa, Asia and Latin America, have recently come under legal scrutiny before the CJEU in Luxembourg and the ECtHR in Strasbourg. In Dogan v Germany national authorities in Germany refused family reunion to a migrant Turkish worker on the ground that his wife could not speak German; in Biao v Denmark the Danish authorities refused the application of a Danish citizen for family reunion on the basis that he and his wife had stronger attachments to Ghana than Denmark. The judicial evaluation of these tests has also differed – the Danish rules were upheld in Strasbourg (albeit by a narrow majority of 4:3) but in Luxembourg Advocate General Mengozzi has suggested that the German decision be declared incompatible with EU law by the CJEU. The reasons for these decisions will be discussed below. The cases provide an opportunity to assess the approach to immigration rules and family reunion under these two systems of law and raise again a central question about accession: while the EU may formally accede to the Convention, can and will the CJEU see issues in the same way as the ECtHR?
In 1998 Mr Dogan, a Turkish national, had exercised rights provided in the 1963 EU-Turkey Association Agreement to establish himself as a company director in Germany. In 2002 he was granted permanent residence in Germany. In 2007 he married the mother of his four children, an illiterate Turkish woman. In 2011, Mrs Dogan applied for a visa for the purpose of reunification of the whole family with her husband in Germany. At her interview, she said nothing beyond repeating three memorised sentences. Her application was refused due to no basic knowledge of the German language as per Article 2(8) of the Aufenthaltssgesetz 2008. A second application requesting a visa for herself alone was also rejected for the same reason. The second refusal was challenged and the court in Berlin stayed the case to send two questions to the CJEU concerning first, the interaction of this new German rule with the Association Agreement and secondly, its compatibility with Article 7(2)(1) of Directive 2003/86 on the right to family reunification.
Mr Biao was born in 1971 in Togo, where he lived until the age of 6. However, he spent many years living with an uncle in Ghana and completed his schooling there. At the age of 22, in 1993, he unsuccessfully applied for asylum in Denmark. In 1994 he married a Danish woman, and under the Danish Aliens Act thereby became eligible for a residence permit; this permit became permanent in 1997. He divorced his wife in 1998 and in 2002 at the age of 31 became a Danish citizen. In 2003 he married a 24 year old Ghanaian woman – she applied for a residence permit for Denmark, which was refused on the basis that neither Mr Biao or his wife could prove that their ‘aggregate’ ties were stronger to Denmark than to any other country ie. Ghana, as required under the Aliens Act. Mrs Biao appealed the decision but as it had immediate effect, the couple moved to Sweden where in 2004 they had a son. The son acquired Danish nationality from his father. The Biaos complained to the Strasbourg Court that the refusal by the Danish authorities to grant them family reunion in Denmark breached Article 8 of the Convention, alone and in conjunction with Article 14. Continue reading