The Court argued in Abdulaziz against a finding of race discrimination on the grounds that the UK rules restricting family reunion being attacked in that case were an attempt to restrict primary immigration. In the Court’s view, they were not directly discriminatory, and could not be regarded as discriminatory merely because more non-white people were affected than white people; this was simply the consequence of more non-white people wanting to immigrate to the UK. This finding was not affected by a favorable rule for those with UK ancestry, as these were considered exceptions for the benefit of those with close links with the UK, which do not accept the tenor of the general rules. This ruling confuses the separate issue of the rules on primary immigration (not as such covered by human rights law) with the family reunion rules which fall within the scope of Article 8 ECHR (which enshrines the right to private life and the right to family life); surely it is not beyond the powers of any court to distinguish between these two sets of rules. The reasoning as regards indirect discrimination does not follow the usual approach, which is to examine possible justifications once a differential effect is clearly made out. Nor is it clear why a specific part of the national rule should simply be disregarded.[12]

This decision of the Court has been subject to criticism in many ways. From the very beginning, it is an embodiment of the sovereignty of the state despite all internationally binding conventions. Yet, some critics argue that the British government revised the Immigration law to take account of this ruling (Jacobson 1997: 90). This assumption is true but the British government did not amend the law to adjust better to the needs of Article 8. Hansen maintains that 1988 Migration Act made the rules for wives as strict as they are for husbands and ended the right of British citizens to bring their spouses to the UK. [13]

Yet, regarding all the unwillingness of the member states, we can not deny the role of ECHR in interpreting the relationship between parents and children. As regards the concept of family life, the case of Berrahab v the Netherlands is of utmost importance. We should grasp the reasoning of the Court before judging its efficiency and its capacity to decide without the interests of specific countries.

Berrehab v the Netherlands

In this case, the Dutch government refused to grant a residence permit to a foreigner after his divorce from his wife of Netherlands nationality and issued an expulsion order against him, though his under-age child was living in the Netherlands. The applicant claimed a violation of the right to respect of his family life (article 8 of the Convention). The Court stated that the right of access was somewhat theoretical since the disputed measures in practice prevented applicants from maintaining regular contacts with each other, although these contacts were essential as the child was very young. With regard to the particular circumstances of the case the Court held that there was a disproportion between means employed and legitimate aim pursued and therefore there was a violation of article 8 of the Convention. The Court further decided that the respondent State has to pay a specified sum to the applicant.[14] In fact, the Dutch government was displeased with the decision of the Court. Yet, they seemed to apply the general principles until a similar case came to the Court. In the Cılız v. Netherlands[15] case, the Court decided that there was a violation of Article 8. The case involved a Turkish national who has a son in the Netherlands from his previous marriage to a Turkish woman who was legally resident in the Netherlands. After his divorce, the applicant did not have anymore his residence rights and was obliged to leave the country. The applicant was expelled before he succeeded to arrange an access agreement which would have been possible had he been given the appropriate means to a judicial review.

In the end, the Court assessed that, “the authorities not only prejudged the outcome of the proceedings relating to the question of access by expelling the applicant when they did, but, and more importantly, they denied the applicant all possibility of any meaningful further involvement in those proceedings for which his availability for trial meetings in particular was obviously of essential importance. It can, moreover, hardly be in doubt that when the applicant eventually obtained a visa to return to the Netherlands for three months in 1999, the mere passage of time had resulted in a de facto determination of the proceedings for access which he then instituted. The authorities, through their failure to co-ordinate the various proceedings touching on the applicant’s family rights, have not, therefore, acted in a manner which has enabled family ties to be developed. In sum, the Court considers that the decision-making process concerning both the question of the applicant’s expulsion and the question of access did not afford the requisite protection of the applicant’s interests as safeguarded by Article 8. [16]

This demonstrates how the decisions of the Court vary according to the specific factors that are relevant for the cases. Yet, what we may infer from these two decisions is that two judgments of the Court have the same reasoning behind. The basis for the decisions is the basic human right to family life with the child. As mentioned above, there is not a certain right that directly deals with family reunification, but the interpretation of the Article 8 enables the Court to take decisions favoring family reunification.

ECJ AND FAMILY REUNIFICATION: SPECIFIC CASE-ANALYSES

Before examining the immigration of third-country nationals into Member States of the EU, we should understand to what extent mobility rights have influence in the process. Since the ECJ did have jurisdiction over freedom of movement, what we will focus on is the cases that contradict with family reunification, thereby having an impact on family life. We may cite the Demirel case as an example for which the ECJ did not have jurisdiction to solve the question.

As stated above, the rights to family reunification were not covered by Community law.  It held that it could not review the compatibility of national legislation with the Convention if the legislation was outside Community law.[17] There was no community law directing the terms of reunification of workers lawfully settled in the Community. Thus, we should see the details of the Demirel case.[18]

Demirel v Stadt Schwabisch Gmund

In this case, the problem arose in the course of an action for the annulment of an order to leave the country, accompanied by the threat of expulsion, which the city of Schwaebisch Gmuend had issued against Mrs Meryem Demirel, a Turkish national, on the expiry of her visa. Mrs Demirel is the wife of a Turkish national who had been living and working in the federal republic of Germany since entering that country in 1979 for the purpose of rejoining his family. She had come to rejoin her husband holding a visa which was valid only for the purposes of a visit and was not issued for family reunification.[19]

It appears from the order of the Verwaltungsgericht that the conditions for family reunification in the case of nationals of non-member countries who have themselves entered the federal republic of Germany for the purposes of family reunification were tightened in 1982 and 1984 by amendments to a circular issued for the land of Baden-Wuerttemberg by the minister for the interior of that land pursuant to the Auslaendergesetz ( aliens law ); those amendments raised from three to eight years the period during which the foreign national was required to have resided continuously and lawfully on German territory . Mrs Demirel' s husband did not fulfill that condition at the time of the events which led to the main proceedings .[20]

At this point, the Verwaltungsgericht Stuttgart, to which application was made for annulment of the order that Mrs Demirel leave the country, raised two questions. The first question was whether Article 12 of the Association Agreement between the European Economic Community and Turkey and Article 36 of the additional protocol thereto, in conjunction with Article 7 of the Association Agreement, already lay down a prohibition that under Community law is directly applicable in the member states on the introduction of further restrictions on freedom of movement applicable to Turkish workers lawfully residing in a member state in the form of a modification of an existing administrative practice. The second question was whether the expression "freedom of movement" in the Association Agreement could be understood as giving Turkish workers residing in a member state the right to bring children under the age of majority and spouses to live with them.

            The ECJ, while issuing its decision, identified key points that are relevant for its decisions. The Court stated that the only decision which the council of association adopted on the matter was decision no 1/80 of 19 September 1980 which, with regard to Turkish workers who are already duly integrated in the labor force of a member state, prohibits any further restrictions on the conditions governing access to employment in the sphere of family reunification, on the other hand, no decision of that kind was adopted.

The Court also stressed that Article 12[21] of the Association Agreement and Article 36 [22]of the Protocol revealed that these articles essentially served to set out a program and were not sufficiently precise and unconditional to be capable of governing directly the movement of workers.

Ultimately, the Court issued its judgment relying on the question whether Article 8 of the European Convention on Human Rights had any bearing on the answer to that question. It ruled that the Court had no power to judge whether national legislation outside the scope of the Community law complied with the European Convention on Human Rights.[23] The inability of the Court to have jurisdiction to identify whether domestic rules like expulsion order are in line with the principles enshrined in Article 8 of European Convention of Human Rights is clearly demonstrating the jurisdictional gap for the ECJ could not protect the human rights of non-EU nationals.

Then, could we say that “Tampere goal” was totally forgotten? The answer would be “negative” since ECJ gives utmost importance to “mobility rights”, which necessitates securing residence rights and protection against expulsion, securing family life through family reunion and lastly guaranteeing equality and fighting discrimination.

Mobility rights are so crucial that they include family reunion, the mobility of long-term resident third country nationals within the EU and leave and return of migrants between their host country and their country of origin.[24] At this point, 2003 Directive on Family Reunification is criticized for its strict nature since it requires legal and continuous residence of 5 years. It gives long-term residents a more secure status. Besides the long-term residents Directive Article 4, which specifies the periods of residence taken into account for granting long-term resident status, allows Member States to reject applicants who have been absent  for longer than six consecutive months (or a total of ten months). Member states May 2, 2006, accept longer absences for ‘specific and exceptional reasons’, although it is unlikely that contributions to the development of their country of origin would be accepted as a legitimate reason.

            From now on, we should understand how the ECJ took its decisions regarding this issue.

Accordingly, we should focus on the legal principles of the process. The first case is the Commission versus Spain.

            Commission v Spain: Judgment of the Court, 14 April 2005

In this case, the Commission of the European Communities asked the Court to declare that Spain has failed to fulfil its obligations under the Council Directive 68/360/EEC of 1968, which prescribes the abolition of restrictions on movement and residence within the Community for workers of Member States and their families by requiring the third country nationals who are members of the family of a Community national who has exercised his right to freedom of movement to obtain a residence permit and also failing the co-ordination of special measures concerning the movement and residence of foreign nationals and issuing a residence permit as soon as possible and in any event not later than six months from the date of application for that permit.[25]

Community Law

Before focusing on the merits of the case, we should mark the role of the Community law? How does the Community law define and elaborate the rights of third country nationals and nationals of a Community family? As to the provisions relating to entry and residence, Article 1 of Directive 68/360 provides for the abolition of restrictions on the movement and residence of nationals of the Member States and of members of their families to whom Regulation(EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.[26]

Moreover, Article 1 of Directive 73/148 requires the abolition of restrictions on the movement and residence of nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that state irrespective of their nationality.

Besides, Article 1 of Directive 90/365 enables nationals of Member States who have pursued within the Community an activity as an employee or self-employed person and members of their families are to be granted a right of residence, provided that they are recipients of an invalidity or early retirement pension, or old age benefits, or of a pension in respect of an industrial accident or disease of an amount sufficient to avoid becoming a burden on the social security system of the host Member State during their period of residence and provided that they are covered by sickness insurance in respect of all risks in that member states.[27]

The secondary law also provides the family members several rights. Article 3 of the Directive 68/360 says that “No entry visa or equivalent document may be demanded save from the members of the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas”. [28]

Article 4 prescribes that for the issue of a Residence Permit for a national of a Member State of the EEC, Member States may require by the members of the worker’s family the document with which they entered the territory and a document issued by the competent authority of the State of origin or the State when they came to prove their relationship. Yet, the law also urges Member States to provide every facility for obtaining any necessary visas.[29]

The Commission maintained Spanish Government violated these provisions with its applications. The Spanish Government stated that there is no harmonization at Community level regarding the issue of residence visas to third-country nationals. Since the Council has not adopted measures on immigration policy within this area, the Member States remain competent in that respect.

Findings of the Court

As was mentioned at the outset, the Community legislature recognized the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the founding Treaties.[30]

Furthermore, as already mentioned, the directives extend the application of Community law concerning entry and residence on the territory of Member States to the spouses of the nationals of those States falling within those provisions, irrespective of their nationality.

While underlining the importance of the right of spouses, the Court enables us to foresee the result. Accordingly, the right of entry into the territory of a Member State granted to a third-country national who is the spouse of a national of a Member State derives from the family relationship alone. Hence, issue of a residence permit to a third country national who is the spouse of a Member State national should be evaluated within the right to protection of family life.

In the case of Spain, the Court gained ground stating that the residence visa requirement laid down by the Spanish rules in order to obtain a residence permit, thereby, the refusal to issue such a permit to a third-country national who is a member of the family of a Community national, on the ground that he or she should first have applied for a residence visa at the Spanish consulate in their last place of domicile creates a breach of the provisions of the related directives.

This mentality which is reflected in the findings above, is supported by this judgment which asserts that the Kingdom of Spain has failed to fulfil its obligations under those directives by failing to transpose correctly into its national law, by requiring third-country nationals who are members of the family of a Community national who has exercised his right to freedom of movement to obtain a residence visa for the issue of a residence permit. Another breach is the Government’s failure to issue a residence permit as soon as possible and in any event not later than six moths from the date on which the application for that permit was submitted.

Before this judgment of the Court, there was another indicator which reveals the general attitude of the Court. The opinion of Advocate General delivered on 9 November 2004 for the case in which Commission of the European Communities and Kingdom of Spain were sides is a clear evidence of the ECJ’s emphasis on freedom of movement, which has a symbiotic relationship with integration policies and family reunification.

Opinion of Advocate General Stix-Hackl, 9 November 2004

In this case, the Commission claims that the Kingdom of Spain breached Directives that were mentioned above. Here, the case concerns the grant of residence permits to nationals of non-Member States who are members of the family of a Community national who has exercised his right to freedom of movement.[31] The drive for the Commission was the complaints by two Community nationals.

The first complaint was petitioned by Mr. Weber.[32]. He was a German who was resident in Spain, and held a residence permit. His wife, a United States citizen, was unable to obtain a residence document because she had not applied for a residence visa at the consulate in her previous place of residence. She obtained a leaflet, setting out the documents required, from the Spanish consulate in Düsseldorf. The files did not establish that Ms Weber initiated the relevant procedure.

The second complaint was brought to the Court, by Mr van Zijl, a  Netharlands national resident in Luxembourg, wished to establish himself in Spain with his wife, Ms Rotte Ventura, a Dominican citizen. The Spanish consulate in Luxembourg gave him the information that there were no formalities affecting him. The married couple arrived in Spain in April 1999 and on 14 April they applied for residence documents. On 3 May Mr van Zijl received a residence permit for five years. Only after repeated inquires did Ms Rotte Ventura receive her residence permit on 28 February 2000. [33]

Despite all correspondences, the Spanish authorities repeatedly emphasized the requirement of a residence visa. Besides, the Spanish Government did not reply to the formal notices of the Commission. While assessing the merits of the case, the Court asserted that the Commission was of the view that the residence visa required under Spanish legislation was an instrument enabling the national authorities to examine- prior to entry into Spanish territory- the reasons why a national of a non-Member state wishes to reside for more than three months on national territory. The Commission regards this requirement as an obstacle to freedom of movement. It notes that national of a non-Member State should not be required to show any independent reason for entering into the territory. Since his right, as the Community law says, is derived from the right enjoyed by the Community national, requiring that person to fulfil formal conditions before entering into national territory is not only a restriction , but also a restriction on the principal right of the Community national.

 Except this breach, the Commission maintains that the Member States may demand entry visa or equivalent visa or equivalent document from members of his family who are not nationals of a Member State. As Regulation No 2317/95[34], which was replaced by Regulation No 574/1999, which was later replaced by Regulation No 539/2001 determined the list of third country nationals whose nationals must be in possession of a visa when crossing the external borders of the Member States. Yet, the Article 10[35]  supports the rights of the people and their families.

As to the all claims in the infringement proceedings, the Spanish Government was of the opinion that the Community visa rules regulate only visas of a short duration. Therefore, the Member States must have the authority to ask for long-term visas. Then, did the Court really encounter a unique case and judge according to this perspective? The answer is “no”, for the case law greatly contributed to the opinion of the Court.

The Findings of the Court and the Case-Law

To begin with, the Court accepts the competence of the Member States’ requiring the necessary documents. Yet, it must facilitate when the position of  the spouses and children of the person is at stake. In its opinion, the Court refers to the Royer[36]case, in which the Court entailed an obligation for Member States to issue a residence permit to any person who provides proof, by means of the document. In the Roux and Giagounidis [37]case, the Court again stressed that no conditions other than those prescribed in the secondar law may be imposed on the persons and their families. In the MRAX [38] case, the Court expressly denied Member States the power to refuse a residence permit for them and their spouses just because of “the failure of the person to comply with legal formalities concerning the control of the aliens.”

Regarding all these principles and examining prior cases, the Court found that the Spanish practice does not correspond to these standards, in that the immigration formalities required by Spain must be fulfilled before entering Spain, usually in the country of origin of the third country national or of the Community national. Furthermore, the Court considered that in the case of Ms Rotte Ventura, a national of a non- Member State who is the spouse of a Community  national who has exercised his right of freedom of movement, the residence permit was issued only after 10 months. In line with these principles, the situation must be characterized as a breach of Spain’s obligation. Consequently, by not granting a residence permit as soon as possible and in any event not from the application for the permit, the Kingdom of Spain has infringed its obligations.

The MRAX case and Family permits before the ECJ

 UK policy states that that the family of an EU national who is resident in Britain is required to obtain a special type of visa - a 'EEA family permit' - before they can enter the country. Non- EU national family members who come without such a visa run the risk of being refused at the port and removed from the country. The logic of policy was looked at by the ECJ in the case of MRAX v. Belgian State (Case C-459/99, 25 July 2002).  MRAX, an anti-racist campaign group, complained to the Court that regulations introduced by the Belgian government requiring the family members of EU nationals to be in possession of the Belgian equivalent of an EEA family permit when they apply for residence documents inside the country.  MRAX argued that this would deprive significant numbers of people of the papers they need for practical reasons when living in the country.

The Court, in the end, agreed with MRAX on this issue.  In its judgement it ruled that a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit.

It similarly ruled that a traveller could not be expelled solely on the grounds that if, on arrival in the member state, he/she did not have a visa allowing entry as a family member of an EEA national exercising a free movement right.

            As a consequence of this ruling it seems clear that the Home Office will have to modify the provisions of its EEA immigration regulations and its practice instructions to immigration and Home Office officials, which imply that removal may be directed in the case of family members who apply for either leave to enter or a EEA residence document if they had not previously been issued with an EEA family permit.

Another case before the ECJ: 2003 Family Reunification Directive

            At the core of EU integration policies, freedom of movement for the persons and for their family members is very important. Issuing residence permits for spouses is so essential that they reunify within the borders of Europe. We will evaluate the efforts to make freedom of movement for the family members later since they have a great role for the family life. Yet, as a separate branch, the efforts for the matter of family reunification came on the agenda and political agreement was reached on the Directive on family reunification in the Council on 27 February 2003 [39](2003/86/CE). This Directive gives the right to family reunification for third country nationals holding a residence permit of one year or more who have reasonable prospects of obtaining permanent residence. Member States will be entitled to require, for the exercise of this right that third-country nationals comply with integration measures in accordance with national law. An essential provision for the integration of family members is that they be entitled, in the same way as the applicant, to access to employment, education and vocational training. Denmark, Ireland and the United Kingdom did not participate in this Directive.[40]

            However, the European Parliament brought action on 22 December 2003 against the Council of the European Union. [41] Then, the ECJ issued a notice in which the European Parliament  claims that the Court should annul, pursuant to Article 230 EC, the last subparagraph of Article 4(1), Article 4(6) and Article 8 of the Council Directive 2003 /86/ EC of 22 September on the right to family reunification.[42] The Parliement also demands the defendant to pay the costs.

As to the pleas in law and main arguments, the Parliament states that this action for annulment is aimed at defending fundamental rights, especially the rights of the minors, in the community legal order. The Parliament claims that the Directive has a number of provisions which are inacceptable to fundamental rights, such as the right to family life and the right not to be discriminated against . The Parliament asserts that the right to family life as recognızed by Article 8 of the 1950 European Convention on Human Rights and interpreted in the case-law of the European Court of Human Rights can not be restricted. However, in certain conditions, the derogations are acceptable. Yet, they maintain that it leads to infringements.

            So far, we have analyzed the sample cases of the European Court of Human Rights on family reunıfıcatıon. The results of the cases are highly contributing to the development of the rights. In addition to case-analyses of the European Court of Human Rights, we saw that both have similarities yet the decisions of ECJ are very related with freedom of movement. On the surface, the ECJ protects the rights of the persons. However, there are still obstacles to the freedom of movement. As a general motto, the theory and practice do not always comply with each other. From now on, we will focus on the new efforts and the existent obstacles to freedom of movement.

            Directive 2004/38/EC on the rights of citizens of the Union and their family members to move and reside freely

            The last secondary law example for the policy is the adoption of Directive 2004/38/EC[43] on the rights of citizens of the Union and their family members to move and reside freely within the territory of the member states. This Directive strongly supported new developments. What makes the Directive special?

            From the very beginning, it destroys segregationist approach and combines all sectors. It codifies the main principles recognized and developed by the ECJ’s jurisprudence.[44] . The relevant articles for family reunification are also worth highlighting. It states that the right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.[45] This principle respects the rights of the family members to move freely irrespective of their nationality and marital status. However, the following provision creates a hidden obstacle to the family members. It says that in order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.[46] The reason why this provision leads to possible restriction is that this right is very closely related with the financial position of the person desiring to move freely. That is to say, residence rights will not be given to nationals of a Community family let alone family members of the citizen.

       CONCLUSION

            Throughout this paper, I tried to demonstrate the decision mechanisms of the two courts, European Court of Justice and European Court of Human Rights. With the case-law, we may conclude that the differing frameworks of the courts also have impact on the final judgments. While presenting the principles and judgments of the courts, I tried to reflect the contribution of the existing secondary law. The 2003 Family Reunification Directive and 2004 Free Movement Directive are the two directives that are of great importance. In addition to this, I focused on the instruments that were in accordance with the reasoning of the courts. All these legal instruments support the view that despite the evolving legislation, there are a lot of steps to take. What hinders the respect for family reunification is its failure to form a uniform policy. Despite the fact that the EU Commission strongly supports all initiatives that facilitate entry into and residence in the EU, mobility between Member States of employees and, initiatives that are required in order for the EU to meet its ambitious economic goals set at the Lisbon Summit in March, 2000, there are still tensions that stem from the domestic policies of the Member States, as clearly seen in the case of Spain.

Nevertheless, what was long lacking was the understanding the human-rights related core of the issue. The family unit of both EU nationals and third-country nationals can not be distorted since they can not be thought separately from their families. Thus, to the author of these lines what can be considered as a solution for the problem is not creating a myriad of policies that would contradict with each other but producing a single system for Europe. Not only the working rights for trailing spouses and partners, but also the human rights should be respected for the family reunification.  

What is of key relevance to our immigration and family reunification debate is that long-term immigration programs which would be supported by the secondary law of the EU for the sake of family reunification. To charge the immigrants for the problems and to interpret the jurisprudence of the courts against them would be useless since the underlying reasons such as the policies of some European states which encourage massive illegal immigration are hard to manage. These states provide generous public assistance to illegal immigrants, tolerating some laws that are open to abuse.

All in all, the implementation of laws and regulations necessary for family reunification is in connection with the common policy of the union on the matter. The attitudes of the Member States must be in line with the secondary law of the EU and the jurisprudence of the courts without concerns of their sovereignty. Since relinquishing sovereignty in this area is necessary for the maintenance of basic human rights.

24 July 2006

Zeynep Sengul is a student of Bogazici University

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