The Individual Examination under the Family Reunification Directive
Master’s thesis International and European law: European Union law
W.K. Hutten
Supervisor: mw. prof. dr. A.A.M. Schrauwen Second reader: mw. dr. J.M. Mendes
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Table of Contents
Abbreviations 3
Introduction 4
1 The Family Reunification Directive in the Context of European Migration Law 7 1.1 EU Legal instruments for purposes of Family Reunification 7
1.2 Varying Personal Scopes in the Member States 10
1.3 The Right to Family Life 12
2 The Right to Family Reunification and the Individual Examination 16 2.1 The Family Reunification Directive: Principles and Conditions 16 2.2 The Individual Examination: Securing Fundamental Rights 19 2.3 The Individual Examination in Licht of the Conditions of the Directive 22
2.3.1 The EU Principle of Proportionality 22
2.3.2 The Income requirement 25
2.3.3 Integration measures 27
2.3.4 Noorzia: Limits to the Individual Examination? 30
2.4 The Individual Examination: Judicial Review 32
Conclusion 37
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Abbreviations
ABRvS Afdeling Bestuursrechtspraak van de Raad van State (Administrative Jurisdiction
Division of the Council of State)
AG Advocate General to the European Court of Justice Charter Charter of Fundamental Rights of the European Union
ECJ European Court of Justice (officially: Court of Justice of the European Union) ECHR European Convention of Human Rights
ECtHR European Court of Human Rights
FRD Family Reunification Directive (Council Directive 2003/86/EC) TCN Third-country Nationals
TEU Treaty on European Union
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Introduction
Recently, the Dutch Council for Human Rights (College voor de Rechten van de Mens) published an
extensive report, Gezinnen Gezien, on the decision-making process of applications for family
reunification in the Netherlands.1 After examining 325 decisions were the application was
rejected, the Council’s conclusions were undeniably strong. The decision-making practice is characterized as “mechanic”, only authorizing family reunification when all requirements are irrefutably met.2 An individual examination in those cases where the applicant or sponsor does
not meet all the predetermined standards is not made.3 According to the Council, this practice is
not in accordance with the Family Reunification Directive (FRD), which requires that all decisions must be made on a case-by-case basis. The Council points out that on various occasions the European Court of Justice (ECJ) has stressed that the Member States are obliged to make an
individual examination of the application when not all requirements are met.4 In general, the ECJ
seems to demand a positive attitude from the national authorities to make family reunification possible.5 The report Gezinnen Gezien clearly concludes that this attitude is currently not present
in Dutch practice.
The responsible State Secretary did not seem to be impressed by these results. He criticised the research methodology of the Council, because it had only examined first applications, omitting those applications that were granted after the immigrant appealed to the first decision or where the decision was quashed by the immigration judge.6 In parliament, he bluntly stated that the
report therefore did not make sense and its results could not be taken seriously.7 As noted by
Groenendijk, this reaction reflects a narrow view of what may be expected of a public authority in such cases; whether the rules are complied with at first instance appears to be irrelevant, since the immigrant can appeal to that decision anyway.8
In any event, it is clear from the case law of the ECJ that Member States are obliged to make an individual examination of all applications under the Family Reunification Directive. This
1 College voor de Rechten van de Mens, “Gezinnen Gezien – Onderzoek naar Nederlandse regelgeving en
uitvoeringspraktijk in het licht van de Europese Gezinsherenigingsrichtlijn” (September 2014).
2Ibid., p. 81. 3Ibid., p. 85.
4 For instance, Case C-578/08 Chakroun [2010]; Case C-153/14 K and A [2015].
5 College voor de Rechten van de Mens, “Gezinnen Gezien – Onderzoek naar Nederlandse regelgeving en
uitvoeringspraktijk in het licht van de Europese Gezinsherenigingsrichtlijn” (September 2014), p. 18.
6 Vergaderjaar 2014-2015, Kamerstukken 30573, no. 127, p. 1-2. 7 Vergaderjaar 2014-2015, Kamerstukken 32175, no. 55, p. 26.
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requirement prohibits the Member States from any automatic decision-making in setting thresholds that cannot be waived in individual cases. But what this individual examination should consist of concretely is not clear at first sight. Is it a requirement that only ensures compliance with human rights, such as the right to family life? Can it be interpreted as a procedural requirement that practically only obliges national authorities to mention the relevant circumstances or is it a more demanding, substantive requirement? Can the requirement be framed merely as whether an exception should be made in hardship cases or does it require more? The required individual examination clearly needs closer inspection.
This brings me to my main research question: “What does the individual examination under the Family Reunification Directive, firstly prescribed by the European Court of Justice in the
Chakroun judgment, consist of?”
In order to answer this question, I will mainly rely on the case law of the ECJ on the FRD. I will also pay attention to the Opinions of the Advocates General in these cases. Moreover, I examine the case law of the ECtHR on the right to family life (Article 8 ECHR), which guides the interpretation of the ECJ of the right to family life under Article 7 of the Charter. Finally, I make use of legal literature on European family migration law and the relevant Charter provisions. I will assert that the individual examination comprises two limbs. On the one hand, the individual examination indeed ensures compliance with fundamental rights, especially Article 7 and 24 of the Charter, which respectively enshrine the right to family life and the rights of the child. Since the ECJ interprets these provisions on the basis of Article 8 ECHR, a proportionality analysis as found in the case law of the ECtHR here has to be made. On the other hand, the individual examination also amounts to a specific EU proportionality analysis regarding the application of the conditions of the Directive. As we will see, this proportionality analysis, for various reasons, is very different from the proportionality assessment under Article 8 ECHR.
In practice, the individual examination can be enforced at two levels: at the level of national authorities (making the initial decision) and at the level of national courts, (reviewing this decision). The primary role for the national authorities is self-evident; they handle the applications, so they bear the prime responsibility to do this in accordance with EU law. But the decision made by the national authorities must be open to judicial review.9 Especially in the case
of restrictive decision-making practices, these judicial proceedings may be of paramount importance in order to enforce the individual examination under the FRD. Therefore, I will also
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examine whether any requirements regarding the intensity of judicial review can be derived from EU law.
In Chapter 1 I will discuss the role of the Family Reunification Directive in the context of
European migration law. I shall explain what legal instruments are in play in the field of family reunification, their personal scope and their diverging definitions of the nuclear family. I will also expand on the right to family life as enshrined in Article 8 ECHR and Article 7 of the Charter. In
Chapter 2, I will examine the right to family reunification as secured by the FRD and the
requirement of the individual examination. I will then explain whether EU law also obliges national courts to a certain intensity of judicial review of such individual examinations under the FRD.
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I
The Family Reunification Directive in the context of European
Migration Law
Although this thesis will focus on the Family Reunification Directive (FRD)10, this Directive is
only one of the various EU legal instruments that grant rights to individuals that may wish to reside in the European Union for purposes of family reunification. In order to make a better estimation of the importance of the FRD, it is important to be aware of the other EU legal instruments that may be invoked in order to make family reunification possible.
1.1 Relevant EU legal instruments for purposes of family reunification
We may distinguish five sources of EU law that are particularly relevant in this respect: the Citizens’ Directive11, the Blue Card Directive12, the Association Agreement EEC-Turkey, Articles
20/21 TFEU and, of course, the FRD. The applicability of these legal instruments primarily depends on the nationality of the sponsor – the person already residing lawfully in a Member State whose family members seek to join him. This determines prima facie if, and if so, what EU
law is applicable. We may distinguish four groups of sponsors: a. Union Citizens residing in another Member State b. Turkish nationals
c. Third-country nationals (TCN)
d. Union Citizens residing in the Member State of which they are a national
Ad a) Union Citizens legally residing in “a Member State other than that of which they are a
national” may rely on the Citizens’ Directive for family reunification.13 Under this Directive,
Union Citizens have a right to be accompanied or joined by their family members, encompassing the spouse/registered partner, the children14 and, in case of dependency, the parents15,
10 Council Directive 2003/86/EC. 11 Directive 2004/38/EC.
12 Council Directive 2009/50/EC. 13 Article 3(1).
14 The children must be under the age of 21 or dependent on the sponsor or spouse/registered partner (Article
2(2)(c)).
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irrespective the nationality of these family members. Further, Article 3(2)(b) of the Directive specifies that regarding unregistered partners and certain other family members16, Member States
shall ‘facilitate’ their entry and residence. This implies that they may be subjected to stricter conditions, laid down in the national legislation of the Member States. Member States have a wide discretion in selecting those criteria, as long as they are consistent with the normal meaning of the term ‘facilitate’ and do not deprive the provision of its effectiveness.17
The ECJ has interpreted the right to family reunification under the Citizens’ Directive as a right
derived from the free movement of persons. The right to family life is to be secured not as a right
in itself, but primarily in order to eliminate obstacles to the exercise of a fundamental freedom guaranteed by the TFEU, namely the right of free movement of persons.18 Therefore, the ECJ
here does not start from a right to family life, but assesses whether national measures may
discourage a Union citizen from exercising his or her free movement right. According to the ECJ,
measures that limit family reunification rights for Union citizens may have such an effect. In these cases, the Court frames the question essentially as free movement cases instead of family reunification cases. For instance, in Metock, the question for the ECJ was not whether a TCN had
the right of access to EU territory, but rather whether the right to be joined by TCN family members is needed for an effective exercise of the free movement of Europeans to other Member States.19
Ad b) Turkish nationals potentially have family reunification rights by virtue of the standstill
clauses in Article 41(1) of the Additional Protocol of the Association Agreement EEC-Turkey and Article 13 of Decision 1/80 of the Association Council. These standstill clauses prohibit Member States to impose new restrictions on respectively the freedom of establishment and freedom to provide services and the conditions of access to employment applicable to workers and their family members legally resident and employed in their respective territories. In principle, the standstill clauses do not contain clearly defined rights in themselves, either regarding access to economic activities or family reunification. Since they only prohibit the introduction of new restrictions in the national legislation of the Member States, its effects vary considerably among the Member States. Other provisions in the context of this Association Agreement do grant
16 The family members “who, in the country from which they have come, are dependants or members of the
household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family members” (Article 3(2)(b)).
17 Case C-83/11 Rahman [2012], par. 24. 18 Case C-60/00 Carpenter [2002], par. 38.
19 According to Spijkerboer, this might explain the different outcome in Akrich. (Case C-109/01 Akrich [2003])
T. Spijkerboer, “Analysing European Case-Law On Migration. Options for Critical Lawyers” in: EU Migration Law: Legal Complexities and Political Rationales, L. Azoulai and K. De Vries (eds.). Oxford University Press (2014)
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certain rights to Turkish nationals and their family members already residing in the EU, notably Articles 6 and 7 of Decision 1/80 regarding access to the labour market, which the ECJ has interpreted as necessarily implying a right to legal residence.20 However, regarding family
reunification proper, i.e. first access of Turkish nationals and their family members, Member States remain free to adopt their own rules, subject to compliance with the standstill clauses. The Association Agreement has an objective that is fundamentally different from all other EU legal instruments discussed here, namely of “progressively securing freedom of movement for workers, the freedom of establishment and the freedom to provide services between Turkey and the EU”.21 The standstill clauses seem to be among the most important provisions to achieve this
result.22 Although they do not in itself confer a right of residence on Turkish nationals23, they
have precluded the Member States to introduce new restrictions in their national legislation for a long time.24 Moreover, the ECJ has consistently held that the Treaty provisions on the freedom
of movement for workers, the freedom of establishment and the freedom to provide services “must be extended, so far as possible, to Turkish nationals”.25 Such extensions to Turkish
nationals of rights that were already granted to EU citizens were acknowledged by the ECJ in various judgments.26
Ad c) Third-country nationals (TCNs) may derive family reunification rights from the FRD.27 Under
this Directive, TCNs legally residing in a Member State and “having reasonable prospects of obtaining the right of permanent residence”28 have a right to family reunification with at least
their spouse and minor children, subject to compliance with the various conditions that may be set by the Member States. These conditions are limited to those laid down in Chapter IV of the Directive and include accommodation, income and integration requirements.29 Member States
20 Case C-192/89 Sevince [1990] par. 29.
21 Articles 12-14 Association Agreement EEC-Turkey.
22 According to the ECJ, the standstill clause of Art. 41(1) of the Additional Protocol appears to be “the
necessary corollary to Articles 13 and 14 of the Association Agreement, and constitutes the indispensable means of achieving the gradual abolition of national obstacles to the freedom of establishment and the freedom to provide services. (Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] par. 68)
23 The ECJ has stated the standstill clauses are to be seen as quasi-procedural rules instead of substantive rules.
(ie. Case C-16/05 Tum and Dari [2007] par. 55)
24 The Additional Protocol entered into force on 1 January 1973, Decision 1/80 on 1 December 1980. 25 ie. C-434/93 Bozkurt [1995] par. 19-20.
26 See, for instance, Case C-467/02 Cetinkaya [2004]; Case C-136/03 Dörr and Ünal [2005]; Case C-349/06 Polat
[2007]. Nonetheless, the extension of rights to Turkish nationals is not unlimited; see, for instance, Case C-221/11 Demirkan [2013] and Case C-371/08 Ziebell [2011].
27 Third country nationals are all persons who are not a Union citizen (Article 2, under (a), FRD). Hence, also
Turkish nationals are considered as TCNs.
28 Article 3(1) FRD. Only Cyprus hasimplemented this requirement as such (see Groenendijk et al. The Family
Reunification Directive in EU Member States, Nijmegen: Wolf Legal Publishers (2007), p. 21).
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may also establish a waiting period not exceeding two years of legal residence in the host country before the sponsor can apply for family reunification.30 The FRD will be examined in detail in
Chapter 2.
High-skilled TCNs may rely on the more favourable Blue Card Directive. To them the FRD applies as well, but now with the derogations laid down in Article 15 of the Blue Card Directive. Most importantly, they cannot be subjected to a waiting period and integration conditions may only be applied after the persons concerned have been granted family reunification.31
Ad d) Union Citizens that did not move to another Member State, finally, are not covered by any
secondary EU law. For these sponsors, Member States may in principle set their own rules regarding family reunification. However, the ECJ has developed an exceptional right of residence on the basis of the provisions of the TFEU on European citizenship (Articles 20 and 21) in the
Ruiz Zambrano judgment, further specified in subsequent judgments. 32 Under this case law, if a
minor Union citizen is dependent on a TCN, the TCN has the right to reside with that Union citizen, if a negative decision would in fact also force the Union citizen to leave the territory of the Union, because of his or her dependency on the care of the third-country national. This would deprive the child of the “genuine enjoyment of the substance of his rights” by virtue of his status as a Union citizen.
1.2 Varying personal scopes in the Member States
At first sight, the sets of rules discussed above seem quite clearly distinguished. Since the rules that apply depend on the nationality of the sponsor, one might expect it is sufficient to stick to the EU law applicable according to the scheme set out in the previous paragraph. However, things turn out to be more complex in practice. For three reasons, the scope of application of the Directives described above may in fact have a wider impact on national immigration regimes than it may appear at first sight.
First of all, the sets of rules themselves may overlap. For instance, Turkish nationals are also TCN. If they have no right under the Association Agreement, they still may have a right under the FRD. Second, Member States have quite some discretion in determining the definition of “family members” under that legislation. Under the FRD, there is only a minimum requirement
30 Article 8 FRD. 31 Article 15 (2) and (3).
32 Case C-34/09 Ruiz Zambrano (2011), par 42-43; and, among others, Case C-256/11 Dereci (2011) and Case
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to include the spouse and minor children to this definition. Article 4(2) and 4(3) FRD only state that Member States may authorize the family reunification with, among others, unmarried
partners and dependent family members in the direct ascending line33. Therefore, Member States
can here significantly adjust the scope of the family members implementing the Directive in their national legal order. For instance, Belgium, Finland, France, the Netherlands and Sweden made use of the possibility under Article 4(3) FRD to include unmarried partners.34 Third, some
Member States broadened the personal scope of the Directive by providing for equal treatment to sponsors of its own nationality. Member States have done this in order to prevent “reverse discrimination”, the situation where own nationals are treated less favourable than other Union Citizens or TCNs. Until recently, in Belgium, own nationals were treated like other Union Citizens.35 Since recently, in the Netherlands, own nationals are treated like TCNs.36 Although
Articles 3 CD and FRD seem to strictly limit the beneficiaries of the Directives, EU law cannot prevent Member States from such “spontaneous harmonization”, since Member States are free to act as they want in internal situations, provided they take due account of EU law that does apply.37 In this situation, the extended scope of EU law technically does not follow from the
discretion of the Member States under these Directives, but from a choice of the Member States to apply EU law to internal situations.38
33 In most Member States, such extension of the personal scope of the FRD has not been necessary, since own
nationals are already entitled to more privileged treatment than third country nationals (see Groenendijk et al.
The Family Reunification Directive in EU Member States, Nijmegen: Wolf Legal Publishers (2007), p. 12-13)
34Ibid., p. 18
35 For a long time, Belgium family reunification law has famously prohibited reverse discrimination of Belgium
nationals to EU citizens by way of Article 40(6) of the Act of 15 December 1980. This has been changed by way of the Act of 8 July 2011 amending the Act of 15 December 1980. The Belgium Constitutional Court, in its judgment of 26 September 2013 (No. 121/2013) – although it found this Act to be unconstitutional in several ways – did not found the reverse discrimination to EU citizens to be unconstitutional. See S. Dawoud, “Gezinshereniging in België: Kan men het bos nog door de bomen zien?” Tijdschrift Vreemdelingenrecht, 2014 nr.
3, p. 286-320
36 In the Netherlands, it is now accepted that the FRD is applicable to sponsors that are Dutch citizens or dual
national regarding the application of the income requirement. There is still uncertainty whether also the other
provisions of the FRD apply to Dutch sponsors. (ABRvS 22 June 2015, ECLI:NL:RVS:2015:2086; ABRvS 17 December 2014, JV 2015/60, Note Groenendijk, ECLI:NL:RVS:2014:4650)
37 The Court of Justice even accepts jurisdiction to give preliminary rulings in cases where the facts of the case
in principle fell outside the scope of EU law, but the provisions of EU law at issue have been made “directly and unconditionally” applicable by national law to these situations (See, for instance, Case C-313/12 Romeo, par
23)
38 Hence, when questions arise on this point, it is for the national courts to assess the precise scope of
references to EU law in domestic law in internal situations (see Case C-28/95 Leur-Bloem [1997] par. 33; Case
C-297/88 Dzodzi [1990] par. 42). This means that national courts, and not the ECJ, can determine in which
situations the national legislator has intended to extend the scope of application of provisions of EU law to internal situations. In this regard, see also Case C-87/12 Ymeraga [2013] par. 24-33 and Case C-313/12 Romeo
[2013] par. 37, where the ECJ clearly distinguished the question whether it had jurisdiction to give a preliminary ruling in this situation from the question in what situations the provisions of national law, referring to EU law, are to apply.
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It has become clear that family migration rights are found in many different sources of EU law. Each legal instrument is confined to specific situations, where both the sponsor and the family member in question must fall in the predetermined categories. The relevant legal instruments discussed above not only have a different scope and contain different conditions, they also proceed from different rationales. They all have been established for different reasons and pursue different aims. The ECJ clearly takes this into account in the preliminary rulings on these legal instruments. In fact, the ECJ often bases its interpretation of specific provisions on the objective of the legal instrument as a whole. Even though in each case the same question will be at stake – whether or not family reunification must be granted – the Court will proceed from entirely different principles in each case. For good reasons, it has been said that European family migration law currently is of a highly fragmented nature.39
Being only one of the various sources of EU law concerning family migration, the importance of the FRD seems limited at first sight. Both the scope of the sponsors (only TCNs) and the definition of family members seem to restrict the scope to a given set of situations. However, we have seen that some Member States have made use of the possibility to apply the Directive to other categories of sponsors, such as own nationals. Member States have also made use of the possibility to enlarge the scope of family members. This means that the importance of the FRD may vary per Member State. Despite all this, in many situations the TCN family members that want to reunite fall outside the strictly fixed definition of family members. The FRD only sets a minimum standard to include the spouse and minor children. Even in those Member States that have expanded this scope to unmarried partners, many genuine applicants for family reunification cannot rely on the FRD nor on the other legal instruments discussed above. Here the applicant will have to rely on the right to family life, enshrined in respectively Article 8 ECHR and Article 7 of the Charter. I will consider these provisions in a separate paragraph, since, as will be shown, they are of a wholly different nature than the EU legal instruments discussed above.
1.3 The Right to Family Life
The right to family life is most famously articulated by Article 8 ECHR, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
39 A. Staver, “Free Movement and the Fragmentation of Family Reunification Rights” European Journal of
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2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It should be borne in mind that Article 8 ECHR is formally not part of EU law, but is part of a human rights convention signed by the 47 Member States of the Council of Europe, including all EU Member States. When Member States act within the scope of EU law, they must also comply with the right to family life as protected by Article 7 of the Charter.40 Article 7 of the Charter
and Article 8 ECHR contain corresponding rights, which have “the same scope and meaning”. Nevertheless, Union law may provide more extensive protection41 There has been quite some
discussion whether this means that the corresponding Charter right itself allows for a more extensive interpretation, or that only other sources of EU law may provide for higher standards.42
But apart from the question whether it is possible for the ECJ to give a more expansive interpretation to the right to family life than given by the ECtHR, the Court so far has refrained from providing a clear opening in this direction.43 Even if Article 52(3) makes it possible to give a
more extensive interpretation to Article 7 of the Charter, it remains to be seen if the Court is willing to actually make use of this possibility. For now it is safe to assume that Article 8 ECHR and Article 7 of the Charter give the same level of protection to the right to family life.
Article 8 ECHR is especially important in legal practice since its personal scope is, in principle, unlimited. Regarding the applicability of Article 8 ECHR, the only relevant question for the ECtHR is, as we will see, whether the ties between the family members amount to ‘family life’ in the sense of this provision.44 For this reason, Article 8 ECHR functions to provide a minimum
norm of protection that has to be fulfilled in all circumstances.
40 See Case C-617/10 Akerberg Fransson [2013] par. 17-21; Case C-256/11 Dereci [2012] par. 72. 41 Article 52(3) of the Charter.
42 See J. Meyer (ed.) Charta der Grundrechte der Europäischen Union (4th ed.) Nomos Verlagsgesellschaft (2014), p.
230. The FRD would then be an example of such a higher standard: in case the conditions of that Directive are fulfilled, Member States have to authorize family reunification, without being left a margin of appreciation. (Case C-540/03, Parliament v. Council [2006] par. 60)
43 In McB, a case on parental responsibility, the Court found, exclusively on the basis of the case law of the
ECtHR, that in that case there was no violation of Article 7 of the Charter (Case C-400/10 [2010]). In the field of migration law, the ECJ has denied the possibility of an expansive interpretation of the family members listed in Articles 2 and 3 of the Citizens’ Directive in light of Articles 7 and 24 of the Charter, which was suggested by the referring court (Case C-40/11 Iida [2012] par. 51) The Court also has refrained, contra AG
Bott, from interpreting the term ‘to facilitate’ of Article 3(2) of the Citizens’ Directive in light of Article 7 of the Charter (Case C-83/11 Rahman [2012] par. 24; Opinion of Advocate General Bott, par. 70).
44 In the assessment of this question, the ECtHR opts for a functional approach. On a case-by-case basis, it
assesses “the real existence of close personal ties” (for example in ECtHR K and T v. Finland [2001] No.
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As can already be derived from its wording, Article 8 ECHR primarily protects against interferences
to family life. For the Court, this is only the case if a person who already was exercising family life on the territory of a Contracting State during legal residence, is now denied to continue his family life in that State, because the national authorities have decided to withdraw his or her residence permit. The ECtHR explicitly considers the protection in these cases, where previous lawful residence is terminated, as its primary task.45 Only in exceptional circumstances there might exist a
positive obligation “inherent in the respect for family life” for the Contracting State to make family life possible on its territory, for example after a period of illegal residence.46 Also in that
scenario a State effectively disrupts the family life of family members already (re)unified. However, in cases of actual family reunification, where a person, from its country of origin, applies for the entry and residence to a State for reasons to live with his family member(s), the Court almost never accepts that this leads to a positive obligation under Article 8 ECHR. Only in two cases, Sen v. The Netherlands and Tuquabo-Tekle v. The Netherlands, the Court has found a
violation of Article 8 ECHR in a situation of first entry. These judgments concerned a very specific situation, namely the refusal of the Dutch authorities to allow for family reunification with a child who was left behind in the country of origin by his parents when they settled in the Netherlands.47 In all other cases, also concerning the family reunification with children, the Court
concluded that the interests of the State outweighed the interests of the applicant.48 The reason
for this is fairly simple: Article 8 ECHR only grants a right to family life, not a right to family reunification.
In merely granting a right to family life, Article 8 ECHR forms strictly speaking no part of migration law, but rather of human rights law. The right to family life cannot in itself lead to a family members found in EU law, such as the CD and the FRD (interpreted strictly in, for instance, Case C-40/11 Iida [2012]) Clearly, in protecting a human right the ECtHR does not want to limit the scope of family
life to certain predetermined categories. In this way, the Court allows for a progressive interpretation of family life in its own case law, which has happened regarding, for instance, same-sex relationships. See Peers et al. The EU Charter of Fundamental Rights, Hart Publishing (2014) p. 204-6.
45 According to the ECtHR, this is, in contrast to positive obligations, “the essential object of Article 8 ECHR”
(ECtHR, Gül v. Switserland [1996] No. 23218/94, par. 38, ECtHR Nunez v. Norway [2011] No. 55597/09 68, par.
68), ECtHR Ahmut v. The Netherlands [1996] No. 21702/93, par. 63.
46 ECtHR Nunez v Norway [2011] No. 55597/09, par. 60. See also ECtHR Jeunesse v The Netherlands [2014] No.
12738/10, par. 114, ECtHR Rodrigues Da Silva and Hoogkamer v The Netherlands [2006] No. 50435/99 par. 39.
47 ECtHR Sen v The Netherlands [2001] No. 31465/96; ECtHR Tuquabo-Tekle a.o. v. The Netherlands [2005] No.
60665/00. It has been argued by Spijkerboer that these judgments cannot be reconciled with the negative judgments in the similar cases of Gül and Ahmut (T. Spijkerboer, “Structural Instability: Strasbourg Case Law
on Children’s Family Reunion”, European Journal of Migration and Law 11 (2009), 271-293).
48 In first entry cases, the Court has in most applications declared the application to be manifestly illfounded, so
that the Court considers itself inadmissible to give a judgment (Article 35(3)(a) ECHR). See, for instance, ECtHR I.M. v. The Netherlands (inadmissibility decision)[2003] No. 41226/98, ECtHR Chandra and others v. The Netherlands (inadmissibility decision)[2003] No. 53102/99), ECtHR Magoke v. Sweden (inadmissibility
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right to admittance to a state; the right to family life simply does not imply a right to immigrate. Therefore, the Court has repeatedly stated that, subject to treaty obligations, states have a sovereign right to control immigration.49 According to the Court, Article 8 ECHR “does not entail a general
obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory.”50 To assess whether there still is a positive obligation
under Article 8 ECHR, the Court assesses whether the State has struck a fair balance between the interests of the State in controlling immigration on the one hand and the interest of the individual to exercise family life on the territory of that State on the other hand. In this balancing assessment, the State is granted a margin of appreciation.51 In light of the principles of the Court,
the interest of the State will normally outweigh the interests of the individual. Only in exceptional hardship cases, where, in light of the circumstances of the specific case, an expulsion measure would be gravely disproportional, a positive obligation under Article 8 ECHR comes into view. It must be established that it is practically impossible for the applicant to exercise family life elsewhere (often referred to as ‘insurmountable obstacles’). Only in such a situation, the right to family life indirectly leads to a right to immigrate.
By contrast, the right to family reunification does imply a right to immigrate to the state where the applicant wishes to exercise family life. By accepting this right, the EU Member States have, to a certain extent, given up their sovereign right to control family migration. When acting within the scope of the FRD, their room for manoeuvre is limited by its principles as interpreted by the ECJ. The exact implications of the right to family reunification, laid down in the FRD, will be examined in the following chapter.
49 ECtHR Abdulaziz, Balkandali and Cabales v United Kingdom [1985], Nos. 9214/80, 9483/81 and 9474/81, par.
67; ECtHR Gül v Switserland [1996], No. 23218/94, par. 38.
50 ECtHR Abdulaziz, Balkandali and Cabales v United Kingdom [1985], Nos. 9214/80, 9483/81 and 9474/81,
ECtHR Nunez v Norway [2011] No. 55597/09.
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II
The Right to Family Reunification and the Individual Examination
2.1 The Family Reunification Directive: Conditions and Principles
According to Article 1 of the FRD, the purpose of this Directive is “to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the
territory of the Member States” (my italics). The FRD establishes a right to family reunification, which may only be subject to the conditions set out in that Directive. For many requirements, Member States may decide for themselves which of these are to be implemented in their national legislation. However, Member States may not establish any new requirements. When the applicant fulfils the conditions that the respective Member States has decided to implement, that Member State must allow for family reunification. In any other case, Member States may not automatically
reject the application, but must make the individual examination which will be worked
As already mentioned in paragraph 1.1, Member States have quite some discretion in determining the scope of family members eligible for family reunification. The exact rules in this respect are found in Article 4 of the Directive. I will briefly mention the most prominent ones. The Member States at least have to include the sponsor’s spouse and the minor children of the sponsor/spouse, including adopted children.52 Member States may authorize family reunification
of the parents and adult unmarried children of the sponsor/spouse in case of dependency on the sponsor/spouse.53 Further, Member States may also accept the registered partner of the
sponsor and the unmarried partner of the sponsor when they are in a duly attested stable long-term relationship.54 Member States may require the sponsor and the spouse to be of a minimum
age of maximum 21 years.55
The conditions found in the Directive can be distinguished into procedural and substantive conditions. The procedural rules can be found in Article 5 and 13. According to Article 5(2), the application should be accompanied by documentary evidence of the family relationship, certified copies of the family members’ travel documents and evidence of compliance with the material conditions as implemented by the respective Member State. Another important procedural
52 Article 4(1). 53 Article 4(2). 54 Article 4(3).
55 Article 4(5). For a detailed overview of the choices of the Member States in this respect, see K. Groenendijk
17
condition is that the application has to be submitted when the family members are still in the country of origin. Member States may, in appropriate circumstances, accept an application submitted when the family members are already residing in its territory.56 Further, in almost all
Member States the applicant has to pay fees.57 The FRD remains silent about this condition, but
it is uncontested that Member States may require administrative charges for applications under the FRD. The ECJ has held in a case on the Long Term Residents Directive that Member States, while having a margin of discretion in determining the amounts of the fees, may not apply rules which are liable to jeopardise the achievement of the objectives pursued by a directive and/or deprive it of its effectiveness.58 Moreover, the fees must be in accordance with the principle of
proportionality.59 In this case the Court found the administrative charges amounting from EUR
188 to EUR 830 to be disproportionate.60
There are five material conditions that may be required, which are all found in Chapter IV of the Directive. Two requirements concern the family member and three concern the sponsor. The family member may be required to comply with integration measures and may be refused if he forms a threat to public policy, public security or public health.61 The sponsor may be required to
have sufficient accommodation, resources and sickness insurances.62
Unfortunately, the ECJ has not yet given many preliminary rulings on the interpretation of the FRD. Nevertheless, in the Court’s interpretations of provisions of the FRD that were given, a number of principles have been consistently apparent. First of all, it is clear that the ECJ regards authorization of family reunification as the general rule, which implies that the conditions in Chapter IV of that Directive must be interpreted strictly.63 Furthermore, the margin of
manoeuvre the Member States have in implementing and applying these conditions “must not be used by them in a manner which would undermine the objective and effectiveness of that Directive, which is to promote family reunification”.64
56 Article 5(3) FRD. For an assessment Article 5(3) FRD in light of the Dutch mvv-vereiste, see P. Boeles “Een
niet formalistisch mvv-vereiste” Asiel & Migrantenrecht 10 (2011) p. 454-8.
57 K. Groenendijk et al. The Family Reunification Directive in EU Member States, Nijmegen: Wolf Legal Publishers
(2007) p. 48.
58 Case C-508/10 Commission v Netherlands [2012] par. 65. 59Ibid. par. 75.
60 Due to this judgment, the Dutch government also lowered the fees for applications under the FRD quite
drastically from EUR 1550 to EUR 225 (visa + residence permit). See the Letter of the State Secretary of 28 November 2012, No. 2012-0000647818.
61 Article 6 and 7(2) FRD. 62 Articles 7(1)(a)-(c) FRD.
63 Case C-578/08, Chakroun [2010] par. 43. 64Ibid., my italics.
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It is intriguing the Court has declared this to be the objective of the FRD. It has really been an invention of the Court itself, since it cannot be found anywhere in the text of the Directive, nor in its preamble, nor in the Opinion of Advocate General Sharpston. As Article 1 FRD states that the purpose of the Directive is to determine the conditions for the exercise of the right to family
reunification by TCNs residing lawfully in the EU, it might seem surprising the Court (second Chamber) came up with this much more ambitious objective in Chakroun. Four years earlier, in Parliament v. Council, the Grand Chamber did not consider the objective of the FRD at all.65
However, by referring back to the genesis of the Directive, it has been argued by Hardy that the Court’s adoption of this objective did not come from nowhere. Hardy points to the first proposal of the Commission of the FRD, which was made shortly after the so-called ‘Tampere Conclusions’ of the European Council in 1999. In these Conclusions, the heads of the Member States agreed on making common standards for family reunification policies for TCNs comparable to that of EU citizens.66 This ambitious goal was also underlying the Commission’s first proposal,
which explicitly stated that TCNs should be able to “look forward to being treated in the same way as Union citizens”.67 However, the subsequent negotiations made clear that many Member
States were unwilling to depart from their national rules, which forced the Commission to downgrade its ambitions.68 Nevertheless, also the final text of the Directive did formally lay down
a right to family reunification, which did not yet exist in quite some Member States. By setting out
an exhaustive list of the possible conditions to this right, the Directive implied a certain approximation of national legislations. Furthermore, by bringing the policies of the Member States under the control of the Directive and the Court of Justice, the Member States were denied the possibility to adopt any extreme measures that would make family reunification excessively difficult. In light of this, one could indeed make the case that the Directive aimed to promote family reunification. Taking into account the active role the Court of Justice has had in the past in the interpretation of rights granted by EU law, the objective it now gave to the FRD might not be that surprising after all. Some commentators indeed already predicted at the time of
65 In Parliament v. Council, it seemed uncontested that the Directive’s objective was “to lay down common criteria
for exercise of the right to family reunification” (par. 45).
66 Tampere European Council Presidency Conclusions (15 and 16 October 1999), point 18. 67 Proposal for a Council Directive on the right to family reunification, COM(1999), 638, par. 7.
68 J. Hardy, “The Objective of Directive 2003/86 Is to Promote the Family Reunification of Third Country
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the adoption of the FRD that the impact of the Directive would be much greater than the Member States foresaw.69 Nonetheless, the statement of the Court can be said to be quite daring.
Due to the limited number of preliminary references on the Directive so far, the legal value of the objective of the FRD is not entirely clear yet. In his article, Hardy has suggested that – since ‘promoting family reunification’ goes further than merely ‘granting family reunification’ – the objective strengthens the influence of the FRD regarding both the strict interpretation of conditions to family reunification set out in the Directive and also regarding the proportionality assessment of restrictive national measures in future preliminary rulings.70 It should be added
that this objective also potentially influences the nature of the individual examination under the FRD. To live up to the obligation to promote family reunification, it seems necessary that this individual assessment should be made with a willing attitude of the national authorities. However, an attitude in itself is rather difficult to enforce in legal proceedings. In the following paragraphs, I will analyse the way the ECJ has given more substance to this willing attitude seems to require from the Members States examining applications under the FRD.
2.2 The Individual Examination: Securing Fundamental Rights
In Parliament v. Council, the Court had not yet declared the promotion of family reunification to be
the objective of the FRD. Nevertheless, the Court here already made clear that the application of the FRD cannot result in fundamental rights violations. Therefore, an individual examination is required to ensure compliance with fundamental rights. This follows from Articles 17 and 5(5) FRD, which respectively state:
“Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.”
“When examining an application, the Member States shall have due regard to the best interests of minor children.”
69 See K. Groenendijk, “Family Reunification as a Right under Community Law”, European Journal of Migration
and Law, Vol. 8 (2006), p. 215-230; G. Renner, “Das Zuwanderungsgesetz – Ende des deutschen
Ausländerrechts?”, IMIS-Beiträge, Vol. 27(2005), p. 9-24.
70 J. Hardy, “The Objective of Directive 2003/86 Is to Promote the Family Reunification of Third Country
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The Court pointed out that “such criteria correspond to those taken into consideration by the European Court of Human Rights when it reviews whether a State which has refused an application for family reunification has correctly weighed the competing interests”.71 According
to the Court, these provisions ensure compliance with Article 8 ECHR.72
Respecting Article 8 ECHR is, according to point 2 of the preamble, indeed one of the commitments of the FRD. In her Opinion, Advocate General Kokott essentially came to the same conclusion as the Court. She asserted the provisions make sure that regard is had to “hardship situations”, in order to prevent human rights violations.73
In O, S and L, the Court again emphasized that the individual examination under the FRD must
ensure compliance with fundamental rights. In this post-Lisbon case, the Court now specified that this meant that the examination must ensure compliance with the fundamental rights set out in the Charter, especially with Articles 7 and 24(2-3); the right to family life and the rights of children, leaving the concrete assessment to the referring Court. It should be noted that, as was found in paragraph 1.3, the ECJ so far has refrained from giving a more extensive interpretation of Article 7 of the Charter than Article 8 ECHR.74
Still, Article 24(2-3) potentially has an added value to Article 7 of the Charter. Since this right does not correspond with a provision of the ECHR, the Court of Justice here has full autonomy in interpreting this provision.75 The provisions respectively state that “in all actions relating to
children (…), the child’s best interests must be a primary consideration” and that “every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that in contrary to his or her interests”. In McB, Deticek and Aguirre Zarraga, the Court indeed separately made an examination under Article 24 after it examined
Article 7.76 However, none of these cases concerned immigration law. When it comes to family
migration cases, the ECJ has not yet used Article 24 of the Charter as a separate basis of analysis, but rather as serving to provide additional support for existing interpretations of EU law.77 In
Parliament v. Council, the Court stated that the provision
71 Case C-540/03 Parliament v Council [2006] par. 64. 72Ibid., par. 66.
73 Opinion AG Kokott to Case C-540/03 Parliament v Council [2006] par. 103.
74 In his Opinion, Advocate General Bott made an extensive examination of Article 7 of the Charter,
exclusively on the basis of the case law of the ECtHR on Article 8 ECHR. (Opinion AG Bott to Joined Cases C-356/11 and C-357/11, O, S and L [2012] par. 64-90)
75 According to the Explanations, the underlying basis of the rights found in Article 24 is the UN Convention
of the Rights of the Child 1990 (UNC), notably Articles 3, 9, 12 and 13 thereof. Article 52(3) of the Charter only refers to corresponding provisions of the ECHR, not to other documents of international law.
76 Case C-400/10 McB [2010]; Case C-409/09 Deticek [2009]; Case C-491/10 Aguirre Zarrage [2010]. 77 Peers et al. The EU Charter of Fundamental Rights - A Commentary. Hart Publishing (2014) p. 690.
21
“[stresses] the importance to a child of family life and recommend that States have regard to the child's interests but [does] not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying States a certain margin of appreciation when they examine applications for family reunification”.78
In migration law, Article 24 of the Charter seems to function as a right ancillary to the right to family life, which, as the right to family life, does not lead to a right to immigrate to a Member State. Its legal value therefore seems to correspond to Article 5(5) FRD: the obligation to take due account of the children’s best interest in making an individual examination under the FRD. In both judgments discussed above, the individual examination clearly serves to ensure fundamental rights, most notably the right to family life as enshrined in the ECHR. But as we have seen in paragraph 1.3, in cases of first entry Article 8 ECHR rarely leads to a positive outcome for the migrant in the case-law of the ECtHR. Therefore, in itself the added value of such an examination to the rights already granted under the FRD seems very limited.
It is questionable whether this aspect of the individual examination lives up to the objective given to the FRD in Chakroun: the promotion of family reunification. The fundamental rights
examination at most ensures to safeguard the right to family life. 79 The Court, as a matter of
judicial self-restraint, seems to say that the right to family reunification is limited to the personal scope and the material conditions of the FRD and cannot be extended beyond situations already protected by the right to family life. The Court probably thinks, understandably, that it would go too far to, on the basis of the objective of the FRD (which it invented itself), declare a right to family reunification beyond the limitations that the EU legislator has deliberately laid down in the FRD. However – as we have seen in Chapter 1 – the right to family life, as interpreted by the ECtHR, rarely leads to a positive outcome for a migrant applying for family reunification. As a consequence, an enormous gap between the FRD and Article 8 ECHR effectively limits family reunification rights to the predetermined categories of the FRD. It is submitted here that the potential of Article 7 of the Charter to reduce this gap should be utilized by the ECJ. Only if the ECJ is willing to grant a more extensive protection to the right to family life, the individual examination under the Charter will have a substantive added value to the FRD. Although the Court seems to be in a difficult position due to Article 52(3) of the Charter, there currently is
78 Case C-540/03, Parliament v Council [2006] par. 59.
79 In both judgments, this is actually admitted by the Court. See Joined Cases C 356/11 and C 357/11, O, S and
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widespread support for the idea that this provision still gives the ECJ the possibility to give a more extensive interpretation to Charter rights that correspond with provisions of the ECHR.80
Looking at the case law so far, we can say that the Court in fact does not require the Member States to examine all applications within the scope of the FRD with a view of promoting family reunification. The Court only demands the Members States to apply the conditions of the FRD with
such a view.
2.3 The Individual Examination in Light of the Conditions of the Directive 2.3.1 The EU Principle of Proportionality
As noted in paragraph 2.1, the FRD establishes a right to family reunification. From this the ECJ has inferred that the authorization of family reunification must be regarded as the general rule, which means that the conditions laid down in the FRD must be interpreted strictly. In their implementation, the Members States must also respect the objective of the Directive – the promotion of family reunification.81 Implicitly, the Court has made clear that this is to be
achieved by way of respecting the principle of proportionality.82 From Chakroun and K and A, it
follows that this principle forms a very important aspect of the individual examination under the FRD.
The principle of proportionality is a general principle of EU law, which is now expressed in Article 5(4) TEU. 83 Since the general principles of EU law have direct effect, the principle of
proportionality applies to all measures of the Member States under the scope of the FRD.84
According to well-established case law of the ECJ, the principle of proportionality requires that
80 Notably, already four Advocates General have taken this position. See.Opinion of AG Mengozzi in Case
C-279/09, DEB [2010] par. 98; Opinion of AG Kokott in Case C-110/10 P Solvay v Commission [2011] par. 101;
Opinion of AG Sharpston in Case C-396/11, Radu [2013] par. 79-80; Opinion of AG Bot in Case C-399/11. Melloni [2013] par. 132. All cited in Peers et al. The EU Charter of Fundamental Rights, Hart Publishing (2014) p.
1501-2
81 Case C-578/08 Chakroun [2010] par. 43
82 It has been argued by Wiesbrock that the Court has not always consistenly applied the principle of
proportionality to TCNs. In her view, the use of the principle of proportionality in Chakroun makes the ruling
even more significant. See A. Wiesbrock, “Granting Citizenship-related Rights to Third-Country Nationals: An Alternative to the Full Extension of European Union Citizenship?” European Journal of Migration and Law 14
(2012) p. 78
83 Case C-331/88 Fedesa [1990] par. 13. Article 5(4) TEU reads: “Under the principle of proportionality, the
content and the form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”
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derogations to individual rights must remain within the limits of what is appropriate and necessary
for achieving the aim in view.85 In the individual examination under the FRD, national authorities
have to assess whether the derogation to the right to family reunification that might apply, is, in the individual case, proportionate to the aim that is pursued by that derogation. One can see that the term ‘conditions’, used in the FRD, is somewhat misleading, as it suggests that the applicant indeed must fulfil all conditions in order to have a right to family reunification. In fact, the right to family reunification is always the starting point. When Member States want to refuse family reunification to an applicant, they derogate from the general rule to authorize family reunification. Precisely for this reason, the Member States must make an individual examination to see whether the use of the applicable derogation is proportional in the case at hand.
The EU proportionality principle is very different from the proportionality principle used in the Netherlands. The Dutch version is codified in Article 3:4(2) Algemene Wet Bestuursrecht (Awb) and
states: “The adverse consequences of an order for one or more interested parties may not be disproportionate to the purposes to be served by the order”.86 According to the Dutch Council
of State, this is to be interpreted as a test of arbitrariness. It has to be established that there was such a lack of balance in the weighing of the competing interests that the national authorities reasonably could not have taken the decision at stake.87 In contrast to the EU version, the Dutch
proportionality principle focusses exclusively on the consequences of the decision on the individual. Moreover, due to its interpretation by the Council of State, it leads to a so-called marginal review that only examines the reasonableness of the decision. In disputes within the scope of EU law, national courts will have to apply the EU proportionality principle. In paragraph 2.4.2, I will examine whether this is actually done in Dutch courts in cases under the FRD. It is to be noted that the EU proportionality principle in itself does not prescribe a certain standard of review. For both types of proportionality it is equally possible to test whether the national authorities could reasonably state that the decision is proportionate or whether the decision is in fact proportionate.
Interestingly, the EU principle of proportionality also contrasts with the proportionality test in the case law of the ECtHR on Article 8 ECHR in first-entry cases. There the question is always whether or not there are exceptional circumstances that lead to a positive obligation for the Contracting State to authorize family reunification in an individual case. The ECtHR then
85 See, for instance, Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] par. 38; Case
C-353/99 Council v Heidi Hautala [1999] par. 8; Case C-147/03 Commission v Austria [2005] par. 63
86 I borrowed the translation from J.H. Jans et al. Europeanisation of Public Law (2nd Ed.) Europa Law Publishing
(2015), p. 184
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balances the interests of the individual against the interests of the state. In doing so, it does not call into question the rationale of the negative decision, but only looks at the individual circumstances in light of the right to family life. In practice, the State does not have to justify its expulsion measure any more than to refer to the general State interest in controlling immigration. It is for the applicant to show that his personal interests are so special that his or her interest outweighs the State’s interest. 88 By contrast, the EU proportionality principle requires not a
balancing, but a means-end test. It must be examined whether the restrictive measure is actually necessary to achieve the aims it pursues. It has been pointed out that here the focus shifts from the circumstances of the individual to the justification given by the national authorities in the decision.89 The Member States now actually have to justify their actions according to the criteria
of the EU principle of proportionality.
Apparently, the ECJ and the ECHR insist on an entirely different proportionality analysis to the same kind of cases, family reunification. However, this does not mean that the Courts have a different general conception of proportionality. 90 It should be borne in mind that the ECtHR
only protects the right to family life, while the ECJ protects the right to family reunification. This necessarily leads the courts to a different type of proportionality assessment. Under Article 8 ECHR, two different rights collide, namely the right to family life of the individual on the one hand and the right to control immigration of the state on the other hand. Since the ECtHR accepts the existence of both of these rights, the Court has little choice but to balance these competing rights on a case-by-case basis.
The ECJ finds itself in a different situation. Under the FRD there are no competing rights, but only the right of the individual to family reunification. Here the ECJ cannot accept a sovereign right of the Member States to control immigration, since – when the FRD is applicable – it is precisely the task of that Directive to determine whether or not family reunification must be authorized. Within the scope of the FRD, the Member States have limited that sovereign right to compliance with that Directive. Nevertheless, the EU proportionality analysis is limited to the application of the specific conditions of the Directive. As we have seen in paragraph 2.1, the fundamental rights examination under the Charter is to be made in line with the case law of the ECHR on Article 8 ECHR. In that examination, it should already be established that the applied
88 E. Hilbrink “The Proportionality Principle; Two European Perspectives. How Serving the Community
Interest Ends up to be in the Individual’s Best Interest” Working Paper, January 2010. p. 5
89Ibid., p. 6
90 In a recent study, it has been suggested that both courts in fact use the principle in similar ways. Both kinds
of proportionality can be found in the case law of both courts. T.I. Harbo, The Function of Proportionality Analysis in European Law, Brill Nijhoff (2015) p. 98-99. See also J. Auburn, J. Moffett and A. Sharland, Judicial Review – Principles and Procedure, Oxford: Oxford University Press (2013), p. 418
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condition of the FRD is proportional in relation to its aim in the individual case. In the following paragraphs, I will show how this works out in practice in the application of the income and the integration requirement.
2.3.2 The Income Requirement
The need to make an individual examination was firstly made explicit by the ECJ in Chakroun.
This ruling dealt with what it probably the most important requirement under the FRD in practice: the income requirement. This requirement is laid down in Article 7(1)(c) and states that Member States may require the sponsor to provide evidence that he has “stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned.”91 The
provision thus raises the question when the sponsor’s resources are (a) stable and regular and (b) sufficient and (c) what kinds of benefits are part of the ‘social assistance system of the Member State concerned’. As we will see, these questions are closely intertwined.
In Chakroun, the Court was asked by the Dutch Raad van State whether the Dutch income
requirement, set at 120% of the national minimum wage, was in accordance with Article 7(1)(c) of the FRD.92 Further, the Court was asked whether it was compatible with the Directive to set a
different standard for family relationships that arose before and relationships that arose after the entry of the sponsor into the Netherlands.93
The Dutch government argued that the high income threshold was compatible with the Directive, since with such an income the sponsor would normally not be entitled social assistance, including various kinds of special assistance, such as remission of local taxes, granted by the local authorities. The Court did not accept the Dutch interpretation of ‘social assistance’ which, as the Court emphasized, is a concept which has its own independent meaning in EU law
91 The provision further states that “Member States shall evaluate these resources by reference to their nature
and regularity and may take into account the level of minimum national wages and pensions as well as the number of family member”.
92 The individual examination did not play a role in the national proceedings nor in the order of reference. As
stated of the order of reference: “The parties do not dispute that Article 7(1)(c) of the Directive does not preclude the application of a general income standard. The dispute focuses on how this standard should be specified.” Interestingly, for the parties it was uncontested that the government could lay down an income requirement below which all applications would be rejected. (ABRvS 23 December 2008, ECLI:NL:RVS:2008:BG9480, par. 2.5.5 (my translation))
93 The income threshold was 120% of the national minimum wage only where the relationship arose after the
sponsor moved to the Netherlands. This situation was defined as ‘family formation’ instead of ‘family reunification’. In case of ‘family reunification’ the income threshold was set at 100% of the national minimum wage.
26
and cannot be defined by reference to concepts of national law.94 The Court stated that under
EU law, ‘social assistance’ only refers to assistance which compensates for a lack of sufficient resources, not to other forms of special assistance.95 The Court also found that a sponsor’s
recourses must be considered sufficient at the moment he will not need recourse to social assistance, since the wording of the provision makes clear that it is the very purpose of the income requirement that family reunification admissions will not result in a burden on the social assistance system of the Member State. For this reason, the Court also did not accept the different income thresholds for family reunification and family formation. This distinction could not be justified in light of the purpose of the provision. The question whether someone’s resources are sufficient simply cannot depend on the point in time where a family relationship arose. 96 Clearly, the Dutch rules were not in accordance with the principle of proportionality.
The Court then used the principle of proportionality to go even further. Since the income requirement may only be applied insofar as it corresponds to its purpose - to prevent that applicants will have to rely on social assistance - the Court found that the FRD precluded any
fixed income threshold. It stated:
“Since the extent of needs can vary greatly depending on the individuals, that authorisation must, moreover, be interpreted as meaning that the Member States may indicate a certain sum as a reference amount, but not as meaning that they may impose a minimum income level below which all family reunifications will be refused, irrespective of an actual examination of the situation of each applicant. That interpretation is supported by Article 17 of the Directive, which requires individual examination of applications for family reunification.”97
Member States cannot determine by themselves what amount of resources is to be regarded as sufficient. Since the income requirement is so closely linked to its purpose, Member States may do more than indicate a certain reference amount. Whether an applicant will rely on social assistance is not an objective finding; even persons that could apply for social assistance can
choose not to do so. If the sponsor can show that he can maintain himself and his family members with his income, his resources must be considered sufficient. The sponsor might show this, for instance, on the basis of low fixed charges or by showing he has maintained himself with his amount of resources for a long period of time. Member States may only invoke the income
94 Case C-578/08 Chakroun [2010] par. 45 95Ibid., par. 49
96Ibid., par. 64. Moreover, the Court pointed out that the FRD already prohibits such a rule by defining family
reunification as “regardless whether the family relationship arose before or after the resident’s entry” (Article 2(d)).
