Migration and family reunion

Denmark, like the UK, is not affected by the Directive on Family Reunion, which governs rights of family reunification for
third country nationals. Nevertheless, as C-561/14
Genc shows, there may be circumstances in which EU instruments affect a member state's ability to control family reunification rights.

In 2004, Denmark changed its immigration law to make it more difficult for the children of foreigners to move to Denmark to live with family members
who were established there. In particular, it passed a rule which generally made it difficult for children to claim family reunion rights if the application was not made within two years of the parent's arrival. The thinking, apparently, was that foreigners might otherwise 'leave' their children to be brought up and educated in a foreign country, where they would acquire their native language and culture. If foreign children were to come to Denmark, the thinking went, they should do so at a time when they were most malleable, when it would be as easy as possible to inculcate them with the Danish language and cultural values.

In Genc this rule was challenged by Turkish nationals. Mr Genc was a Turkish worker who moved to Denmark in
1997 and acquired a permanent residence right in 2001. His son remained in Turkey, where
he was brought up by his grandparents. In 2005 he applied to move to Denmark to live with his father, and the application was refused on the basis that it was delayed and there were not 'particularly compelling reasons' to make an exception in his case.

The Court of Justice of the European Union (CJEU) had little difficulty in deciding that this raised EU law issues, going
back to the 1963 EU-Turkey Association Agreement, or more precisely to Decision 1/80, which provided that the member
states would not 'introduce new restrictions on the conditions of access applicable to workers and members of their families legally resident and employed in their respective territories'. In C-183/13 Dogan, the CJEU interpreted analogous provisions imposing a 'standstill' on the introduction of new restrictions on the provision of services and establishment as effectively a prohibition on new restrictions. It had no hesitation in applying this rule to restrictions on workers' rights
to family reunification.

The court emphasised that the intended beneficiary of the right is not the family members directly, but the Turkish worker. But in practical terms that did not make a difference. By introducing a new rule which made it more difficult to obtain family reunification, Denmark had restricted Genc's rights. It is an old and consistent theme of the court's jurisprudence that depriving migrant workers' families of the ability to move will, in practice, exercise a chilling effect on the ability of the workers themselves to move.

Proportionality test

This, however, was not quite the end of the matter. In Dogan the court had accepted that the standstill provisions are not unqualified. In particular, member states may be entitled to introduce new restrictions if they are justified, on a strict proportionality test, in order to meet some overriding public interest reason.The court was prepared to accept that the objective of securing 'integration' might be a legitimate aim. But it choked on the proportionality test. A rule requiring an application to be made within two years did not, in its view, make sense. It was not related to any factor which really had a bearing on integration (such as the child's age or ties to the member state), but simply focused on a more or less irrelevant question. 'It is difficult to understand,' said the court, how the two-year lapse of time would 'place the child in a situation less conducive to integration in Denmark'. It would lead to 'incoherent results' and discrimination. A proper system must attend to the individual circumstances of each case, and not establish any 'systematic practice of refusal' based on marginally relevant matters.

The CJEU is no doubt aware - who could fail to be? - of the current sensitivity of migration issues in the member states. It is not unsympathetic to them. It recognises, for instance, that concern about integration is legitimate. But it detected a discriminatory or merely restrictive purpose behind a rule that was ostensibly ('allegedly', the court said) motivated by such concerns, and it did not mince its words in rejecting such a rule. It did not even leave it to the national courts to assess proportionality. It offered its own unequivocal assessment: 'Such a restriction is not justified.'

In some ways, of course,
the case turns on the technicality of the Turkey Association Agreement. But it has a broader significance precisely because of the troubling and troublesome emotional charge that immigration generally, and immigration from Muslim countries in particular, currently has. Disentangling legitimate interests in integration from illegitimate prejudice against those who do not 'fit in' becomes difficult and important. The
line of least resistance might
well be to take an indulgent approach, and to treat national immigration policy towards third country nationals as a matter where member states would be given very wide latitude. But the approach taken in Genc is, quite properly, the reverse of this. It insists that the proportionality analysis is conducted with rigour and precision, and it does not hesitate to criticise a member state in trenchant terms where that analysis shows that the relevant rule is unjustified.

Paul Stanley QC is a barrister practising from Essex Court Chambers @EssexCourtLaw essexcourt.com

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