Sufficient ties with the host country enabling successful integration - Unjustified condition for family reunification

The recent efforts to remedy people fears by building fences against reality have as result a weaker commitment to Union values including its core principles and main objectives. An internal market without barriers is one of these endangered accomplishments. Lately the CJEU has confirmed in a series of judgments such as Dano that the non-active EU citizens residing in a different Member State do not enjoy the protection entailed by the principle of non-discrimination enshrined in Article 18 TFEU and the relevant provisions of EU secondary law.

However this possibility to discriminate on grounds of nationality shall not be generalised and interpreted as a right to discriminate since the law (the respect due to the principle of proportionality) requires a case by case assessment. Such an obligation presupposes that any refusal must be based on a reasoned decision.

Reasoned infers more than a title placed on the top of a legal document, as some authorities time to time seem to believe. Reasoned implies that the decision must contain all the legal grounds on which a refusal is based and it must address all the legally valid arguments put forward by the applicant. Besides the principle of good administration - under national law - the principle of access to justice reflected by Article 47 of the Charter requires that any decision denying a right guaranteed by the Treaties, must be challengeable in court. How can an applicant who faces a refusal defend his rights before a Court if the reasons for the refusal remain secretive? In paragraph 66 of the judgment discussed here the CJEU states that:

assessment by the national authorities must be made on the basis of sufficiently precise, objective and non-discriminatory criteria which must be examined on a case-by-case basis, giving rise to a reasoned decision which may be subject to an effective appeal in order to prevent a systematic administrative practice of refusal.

Deeper into the Light of the Case

In Case C?561/14, Genc v Integrationsministeriet, the CJEU (Grand Chamber) deals with the case of the son of a Turkish worker in Denmark. Mr. Genc (14 years old) applied for a residence permit in 2005, while his two older brothers already held such permits in Denmark since 2003. His application has been rejected on the ground that he did not or could not have sufficient ties to Denmark to enable him successfully to integrate in that Member State. The appeal against the refusal was as well unsuccessful. The appeal decision is more detailed as regards the grounds for confirming the refusal. Not speaking the language of the host country and not being influenced by Danish standards and values to such a degree that he has or can establish sufficient ties to Denmark to enable him successfully to integrate are key elements for the refusal.

In this case the treatment implies two levels of discrimination:

- primary level: discrimination of workers prohibited by Article 45 TFEU (Article 13 of Decision No 1/80 for the case of Turkish citizens working in the EU);

- secondary level: discrimination of a family member (of a worker) who does not apply for a residence permit within 2 years after the date when the worker residing in Denmark satisfies the conditions for permanent residence.

The two lines of discrimination have been slightly conflated. If the legal question is identified as belonging to the category "family reunification", the status of the father in Denmark is the most interesting fact. The father was employed in Denmark at the time when the application for residence was lodged. The main issue is - in this case - the discriminatory treatment of a worker under EU law. The other kind of discrimination - of a family member of a worker - is derived from the first.

At appeal, the competent national court concluded that Mr Genc’s father could not be regarded either as being so well integrated or as having sufficiently extensive ties himself to Danish society enabling a conclusion to be reached. This condition implies a new restriction imposed by Denmark regarding the possibility of obtaining family reunification for the particular case of workers. The integration of third-country nationals has been nonetheless considered to constitute a key factor in promoting social and economic cohesion, a fundamental objective of the European Union set out in the Treaties.

Such an additional restriction would nonetheless be precluded by EU law as established in Dogan (C?138/13, EU:C:2014:2066) unless the condition can be justified by the reason of integration of third-country nationals and it is proportionate, meaning that it is both suitable to achieve the legitimate objective pursued and does not go beyond what is necessary to achieve the invoked overriding reason in the public interest. 

Discrimination - of the second type - based on the date on which the application for family reunification has been made, between children in entirely similar personal situations, both as regards their age and their ties with Denmark and their relationship with the parent residing there would occur if the ability to achieve integration is not assessed account being taken of the personal situation of the child concerned and his ties to the Member State in question.

The assessment must rely on sufficiently precise, objective and non-discriminatory criteria which must be examined on a case-by-case basis, giving rise to a reasoned decision which may be subject to an effective appeal in order to prevent a systematic administrative practice of refusal.

Concise observations 

Good news:

• The CJEU reaches the conclusion that this new restriction is not justified by the invoked public interest before even going into the assessment of proportionality.
• The CJEU coins a new important syntax "a systematic administrative practice of refusal" that runs contrary to the right to an effective appeal (I have not understood why the CJEU does not make an explicit connection to Article 47 of the Charter).

Less good news:

• No clear distinction has been made between the requirement of integration imposed on the father and the one imposed on the son. In paragraph 21 has been mentioned that "the Ministry of Integration was of the view that Mr Genc’s father could not be regarded either as being so well integrated and as having sufficiently extensive ties himself to Danish society." The proof of integration for a worker under EU law is simply the status of worker!