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.
The German language rule under EU law
The goal of the EU-Turkey Association Agreement is the development of trade and business relationships. It gives Turkish nationals free movement rights within the EU and extends rights under the Treaties, in particular Articles 49-53 TFEU on free movement of services and freedom of establishment, to Turkish nationals. In 1970, an additional Protocol was signed which set down in Article 41 (1) a ‘standstill clause’ prohibiting the introduction upon Turkish nationals of any new restrictions on freedom of establishment and free movement of services. The German language rule introduced in 2008 fell under this standstill clause.
A key question was whether Mrs Dogan herself could benefit from the standstill clause – as her reason for travelling to Germany was family reunion not establishment or service provision, she could not demonstrate that the 2008 rule prevented her from pursuing or realising an economic goal protected under the Association Agreement. However, AG Mengozzi identified an indirect right for Mrs Dogan, arguing that the rule constituted a new obstacle being imposed upon her husband. Citing Abatay and Clean Car Autoservice, he recalled that the CJEU had recognised that a service provider could only effectively enjoy the Association Agreement rights if his workers had as a corollary a direct right to provide these services. Drawing from this the AG posits the German rule preventing family reunion as an indirect restriction upon the enjoyment of the right of establishment exercised by Mr Dogan.
The language rule is clearly a restriction according to AG Mengozzi: as under Article 49 TFEU, any measure that has the effect of prohibiting, hindering or reducing the attractiveness of free movement constitutes a restriction under the Association Agreement. He agrees with the Commission that a rule which makes family reunion difficult is likely to hinder or deter exercise of the rights in the Association Agreement – workers would be forced to choose between their family and work. In the absence of a genuine chance for family life in another member state, a Turkish national would be unlikely to consider settling in a member state or likely to leave that member state if they start a family.
Although neither the EU-Turkey Agreement nor the Protocol explicitly creates a right to family reunion, Mengozzi highlighted the pro-family spirit informing the free movement rules. Both the EU legislator and the CJEU recognise a fundamental connection between family life and free movement rights. This connection exists to protect both the freedom and human dignity of migrant workers – family life should not become a casualty of free movement. Any restriction of family life therefore represents an obstacle to the enjoyment of free movement. AG Mengozzi thus opined that a national immigration measure introduced and applied to the wife of a Turkish worker who had migrated under the EU-Turkey Association Agreement fell within Article 41(1) of the Protocol. Contrary to that provision, such a measure had the ‘object or effect’ of making establishment in a member state harder for a Turkish national.
To support his conclusion, AG Mengozzi differentiated Dogan from the recent decisions of Ziebell and Demirkan. In Ziebell the CJEU had responded negatively to a specific question that protection from expulsion under Article 28 of Citizenship Directive 2004/38 extended to Turkish workers under the Association Agreement; this was due to the purely economic goals of the Association Agreement. The AG argued that Ziebell did not apply to Dogan because the latter case required reflection upon the general aims and goals of the Association Agreement not a particular right. Demirkan could also be differentiated. In that case the CJEU had confirmed the absence of a right to receive services (‘passive’ free movement of services) under the Association Agreement. Again this did not apply to Dogan – Dogan dealt with identifying the boundaries of the active freedoms in the Association Agreement and in particular the extent to which member states were obligated to pursue their realisation.
AG Mengozzi also explained why the German measure was incompatible with Article 7(2) of Directive 2003/86. This provision allows member states to impose integration measures on third country nationals joining family members not only after but also before arrival in the host member state if there is no question of refugee status. As none of the Dogans had or sought refugee status, this provision would allow the German measure to be imposed on Mrs Dogan. Yet by examining the scope of the phrase ‘integration measures’ the AG opined that the German measure went beyond that permitted. His textual analysis included comparison between ‘integration measures’, ‘integration requirements’ and ‘integration criteria’, all of which are used in the Directive. Worryingly, analysis of these phrases highlighted the possibility that the Dutch version of Article 7(2) is out of line with other language versions.
Having determined that ‘measures’ are less onerous than ‘requirements’, AG Mengozzi concluded that the measures foreseen by the legislator under Article 7(2) were intended to make integration in the member states easier rather than harder. Although these measures could cover treatment as well as outcomes they could not be imposed in a general way that did not take individual circumstances into account. Any national measure which excluded or made impossible consideration of individual factual or personal circumstances was incompatible with Directive 2003/86. The German measure did contain some flexibility whereby applicants would be exempt from the language requirement, but flexibility did not extend to the illiteracy of Mrs Dogan. The AG therefore found the German measure incompatible with Article 7(2) as it did not promote the purpose of integration envisaged in that provision.
The Danish 28 year rule under the ECHR
Mr Biao was a naturalised Danish citizen. Section 9 (7) of the Danish Aliens Act 2002 laid out that spouses or co-habitants applying for family reunion had to illustrate stronger aggregate ties with Denmark than any other country. Danish nationals had a general exemption from this ‘attachment requirement’ until 2003: Danish nationals are now exempt only if they have been a Danish national for 28 years. Danish expatriates benefit from an exemption as it is assumed they will have retained strong ties with and their re-insertion into Danish society will be ‘successful’. However a naturalised citizen like Mr Biao would have to comply with the 28 year rule.
Biao argued that this attachment requirement was not only contrary to Article 8 ECHR but also indirectly discriminatory: whereas a ‘born’ Dane would be exempt, a naturalised Dane would always have to comply with the 28 year rule before being exempted from the attachment requirement. In his case, it meant Mr Biao would be 59 before he could be reunited in his country of citizenship. Family reunion would therefore always be harder for naturalised Danes – it would be easier even for expatriate Danes.
The Danish High Court and Supreme Court found the 28 year rule compatible with both the ECHR and the European Convention on Nationality. The purpose of the rule was to ‘regulate spousal reunion in Denmark’ so as to ensure the ‘integration of immigrants in Denmark.’ It reasoned that Mrs Biao had no ties to Denmark other than the marriage to Mr Biao and that Mr Biao links to Denmark were weak. Arguing that both Mr and Mrs Biao had many ties to Ghana, where she lived and where he had lived, it upheld the finding that their ‘aggregate ties’ were stronger with Ghana than with Denmark. It was therefore correct to refuse family reunion as the attachment test had been failed: the couple were refused family reunion in Denmark but this did not preclude family life in Ghana or elsewhere. The Ministry decision was held compatible with Article 8 ECHR.
The ECtHR also agreed. In 1985, Abdulaziz confirmed that different treatment of nationals is compatible with the ECHR. In that case the Strasbourg Court held that ‘there are in general persuasive social reasons for giving special treatment to those whose links with a country stem from birth within it.’ However, the results had to be proportionate. It found the Danish 28 year rule in general to be a proportionate means of distinguishing a group of nationals possessing ‘lasting and strong ties’ with Denmark. It also found the application of the rule to the Biao family to be proportionate – Mr Biao had essentially arrived in Denmark as an adult having spent his first 22 years elsewhere. His circumstances were judged almost identical to Abdulaziz and thus the outcome was the same.
Comment: the regulation of spousal reunion
Both the Luxembourg and Strasbourg courts were asked questions concerning the entry and residence of non-European women to join their non-European husbands settled in Europe. In Dogan the set of questions relied upon rights in EU law and in Biao reliance was placed upon the ECHR. Of course the Dogan family could have asserted the right to family life under the ECHR and Mrs Biao would perhaps have been in a stronger position to claim the right to family reunion in the EU Directive 2003/86. In addition, the Biao’s could have claimed citizenship rights on behalf of their son, a baby EU citizen.
AG Mengozzi linked the EU and Convention together in his Opinion. Prior to discussion of Directive 2003/86 he set out the network of legal protection of family rights in the EU – Article 8 ECHR is not only protected in the EU legal order but that right to family life is also entrenched in Article 7 of the EU Charter of Fundamental Rights. Under these systems respect for family life has both ‘negative’ and ‘positive’ aspects which must be respected by the member states – it must be considered when a person is refused entry to or residence in a country where close relatives reside. His assessment of the German language rule as incompatible with the substance of Directive 2003/86 and the standstill clause in the Association Agreement 1963 was informed by that deep regard for the family unit in the combined systems. It remains to be seen whether his judicial colleagues will agree – the Dogan judgement is expected later this year. His colleagues should agree as respect for family life is also fundamental to the EU polity.
AG Mengozzi’s reminder of the family-friendly spirit underlying the EU free movement rules is timely and stands in contrast to the detached and technical approach taken to family reunion in Biao. The contrasting tone of the reasoning suggests that when it comes to protection of the family unit Luxembourg may be moving in the opposite direction to Strasbourg. Given the centrality of free movement for EU integration, the protection of family life under EU law may ironically emerge as stronger than under Article 8 ECHR – the economic imperative may be more persuasive to member states. This may be so under EU citizenship law as well as EU free movement law – case law such as Chen and Baumbast strongly suggest that the Biao family will have a right of residence in Sweden but the more recent case of Zambrano could support an argument for a right of residence based on citizenship in Denmark. Thus the Danish 28 year rule in Biao may not be in breach of Article 8 ECHR according to Strasbourg, but there is a good chance that it may be incompatible with EU law as interpreted in Luxembourg.