CJEU - C‑153/14, Minister van Buitenlandse Zaken v K and A

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Country of Applicant: 
Azerbaijan
Nigeria
Date of Decision: 
09-07-2015
Citation: 
C‑153/14
Court Name: 
Second Chamber of the Court of Justice of the European Union
Headnote: 

The first subparagraph of Article 7(2) of the Family Reunification Directive allows the imposition of integration measures of Third Country Nationals in principle. However the general principle of proportionality requires integration measures to actually fulfil the objective of integrating TCNs and not delimiting the possibility of family reunion.

Member States must therefore consider the individual circumstances of the applicant which can lead to dispensing with the integration exam where family reunification would otherwise be excessively difficult.

Facts: 

The case concerns two third country nationals, an Azerbaijani national and a Nigerian national, who under the Family Reunification Directive wished to unite with their respective spouses in the Netherlands, where the spouses were lawfully residing.   However, claiming an exemption from the civic integration examination on grounds of physical or mental difficulties, the third country nationals saw their applications refused on account that these impediments were not sufficiently serious. Doubting the compatibility of the Dutch civic integration rules with the Family Reunification Directive, the Raad van State decided to stay proceedings and refer the following questions for a preliminary ruling to the CJEU:

1(a)      Can the term ‘integration measures’ — contained in Article 7(2) of [the Family Reunification Directive] — be interpreted as meaning that the competent authorities of the Member States may require a member of a sponsor’s family to demonstrate that he or she has knowledge of the official language of the Member State concerned at a level corresponding to level A1 of the Common European Framework of Reference for Languages, as well as a basic knowledge of the society of that Member State, before those authorities authorise that family member’s entry and residence?

1(b)      Is it relevant to the answer to that question that, also in the context of the proportionality test as described in the European Commission’s Green Paper of 15 November 2011 on the right to family reunification, [ (8)] the national legislation containing the requirement referred to in Question 1(a) provides that, leaving aside the case in which the family member has shown that, due to a mental or physical disability, he/she is permanently unable to take the civic integration examination, it is only in the case where there is a combination of very special individual circumstances which justifies the assumption that the family member will be permanently unable to comply with the integration measures that the request for authorisation of entry and residence cannot be rejected?

2.      Does the purpose of [the Family Reunification Directive], and in particular Article 7(2) thereof, given the proportionality test as described in the abovementioned Green Paper, preclude costs of EUR 350 per attempt for the examination which assesses whether the family member complies with the aforementioned integration measures, and costs of EUR 110 as a single payment for the pack to prepare for the examination?

Decision & Reasoning: 

The Court first makes reference to Article 7(2) and its previous case law, Chakroun C‑578/08, to confirm that Member States can impose an integration requirement on applicants for family reunion before entry, unless family reunification is with a refugee. However, the Court specifies that since family reunification is the rule the imposition of integration measures by a Member State must be interpreted strictly, and in line with Chakroun States use conditions to undermine the main purpose of the Directive which is the facilitation of family reunion.

The Court goes onto assess the principle of proportionality in this regard highlighting that the transposition of para 1 Art 7(2) must be linked to the purpose of the measure (ie integration of Third Country Nationals) and must not go beyond what is necessary to achieve said objective. The Court accedes to the argument that knowledge of a language and society which is tested by a civic integration exam does not, a priori, undermine the aims of family reunification. However, such a measure would be disproportional if, for example, it led to the systematic prevention of family reunification where an applicant had failed the test but had demonstrated willingness to pass the exam and made every effort to do so.  Indeed, the integration tests cannot be aimed at ‘filtering’ family members, but instead must actually help them integrate. In addition where individual circumstances dictate, such as age, illiteracy, level of education, economic situation or health of a sponsor’s relevant family members, these factors must be taken into account in order to dispense of the requirement to undertake the exam where said circumstances mean that they are unable to take the test. If this was not done it would constitute a ‘difficult obstacle’ to the family reunion right, and circumvent the requirement to examine applications on a case by case basis.

Turning to domestic legislation the Court finds that the hardship clause is the only means by which to be exempted from examination, a clause which is circumscribed to exceptional circumstances. According to the Court such a clause does not take into account the required individualised assessment nor does it give the opportunity to dispense of the exam where family reunification would otherwise be excessively difficult.

Similarly, the Court finds that administrative fees associated with the examination must not aim or have the effect of making family reunification impossible or excessively difficult, thereby rendering the Directive redundant. This would be the case where the fees were excessive in light of the significant impact on the TCN concerned. The Court, therefore, finds that Dutch law, requiring an amount to be paid by the individual every time they take the test along with travel expenses to the Netherlands mission, renders the right to family reunification impossible or excessively difficult.

Outcome: 

The first subparagraph of Article 7(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that Member States may require third country nationals to pass a civic integration examination, such as the one at issue in the main proceedings, which consists in an assessment of basic knowledge both of the language of the Member State concerned and of its society and which entails the payment of various costs, before authorising that national’s entry into and residence in the territory of the Member State for the purposes of family reunification, provided that the conditions of application of such a requirement do not make it impossible or excessively difficult to exercise the right to family reunification. In circumstances such as those of the cases in the main proceedings, in so far as they do not allow regard to be had to special circumstances objectively forming an obstacle to the applicants passing the examination and in so far as they set the fees relating to such an examination at too high a level, those conditions make the exercise of the right to family reunification impossible or excessively difficult.

Observations/Comments: 

Advocate General (AG) Kokott provided an Opinion to the CJEU on this case which can be found here.

For further analysis of the case please see, S.Peers, Integration Requirements for family reunion: the CJEU limits Member States’ discretion, EU Law Analysis.

Attachment(s): 
Other sources cited: 

Green Paper on the right to family reunification of third country nationals living in the European Union (Directive 2003/86) (COM(2011) 735 final) (‘the Green Paper’)

Authentic Language: 
Dutch
Country of preliminary reference: 
Netherlands
National / Other Legislative Provisions: 
Netherlands - Law on foreign nationals of 2000 (Vreemdelingenwet 2000) - Art 16
Law on foreign nationals of 2000 (Vreemdelingenwet 2000) - Art 1
Law on foreign nationals of 2000 (Vreemdelingenwet 2000) - Art 8
Law on foreign nationals of 2000 (Vreemdelingenwet 2000) - Art 14(1)(a)
Decree on foreign nationals of 2000 (Vreemdelingenbesluit 2000; ‘the Vb 2000’) - Art 3.71a
Decree on foreign nationals of 2000 (Vreemdelingenbesluit 2000; ‘the Vb 2000’) - Art 3.98a
Decree on foreign nationals of 2000 (Vreemdelingenbesluit 2000; ‘the Vb 2000’) - Art 3.98b
Netherlands - B1/4.7.1.2 of the Circular on Foreign Nationals of 2000 (Vreemdelingencirculaire 2000)
Netherlands - Law on Civic Integration (Wet inburgering; ‘the Wi’)
Netherlands - The Regulation on foreigners of 2000 (Voorschrift Vreemdelingen 2000
Netherlands - The Immigration and Naturalisation Service’s Public Work Instruction No 2011/7