CJEU: AG Opinion Case C‑153/14 Minister van Buitenlandse Zaken v K and A, 19 March 2015

Date: 
Friday, March 20, 2015

(Directive 2003/86/EC — Family reunification — Third-country nationals — Article 7(2) — Integration measures — Proof of basic knowledge of the official language and of knowledge of the country)

Facts of the case

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

Questions referred:

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

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

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

Consideration of the questions referred

Turning to the first question Advocate General (AG) Kokott considers whether the civic integration examination may be regarded as an integration measure within the meaning of Article 7(2) of the Family Reunification Directive. The AG considers that the term “measure” is sufficiently broad to encompass an integration test [20] and is, moreover, conceived as a ‘requirement’ for family reunification, as indicated by the title of Chapter IV of the Family Reunification Directive [23]. Therefore, the AG considers that it is not inconceivable that an integration measure within the Directive could cover an examination and that this could be demanded for in advance of the applicant joining his/her family. The only exception to this is the second paragraph to 7(2) which rules out integration measures prior to family reunification in the case of refugees and also applies to highly qualified employees [25]. The AG, therefore, comes to the finding that the Dutch civic integration examination can come within the scope of an integration measure as specified in Article 7(2) even though this submission would lead to inconsistencies with the interpretation given to the same phrase in the Long-Term Residents Directive [31].

The AG goes onto submit that the measure must be proportionate to the objective of the Directive and must not undermine the latter’s effectiveness. In this manner the AG notes that Dutch legislation pursues legitimate objectives aimed at integrating the person coming to join the family. Furthermore, despite the fact that the civic integration examination is not required for nationals of the US or Canada, the AG finds that this is not inconsistent and is within the scope of favourable treatment that Member States may accord to certain third country nationals under Article 3(4)(a) of the Directive [38]. However, the AG confirms that Dutch legislation is not “appropriate” if individual circumstances are not taken sufficiently into account when the legislation is being applied. This is rooted in Article 17 of the Directive which calls for a case by case assessment of applications for family reunification [39]. Thus, any exclusion clause must take into account the individual situation of the applicant, particularly his/her language proficiency and educational horizons, and must be applied where unreasonableness is established.   In this manner, in addition to cognitive abilities, level of education and state of health attention should also be paid to the access to preparatory materials, cost payable and burden on the applicant’s time [43]. Moreover, the AG advises the Court to find that the “failure to pass the civic integration examination ought not to lead automatically to family reunification being refused, if there are grounds on which it should be granted in a particular case.” This will be up to the Member State authorities to decide, however [45-46].

With regards to the second question, which relates to the imposition of fees for the civic integration test, the AG surmises where fees have the object or the effect of creating an obstacle to the exercise of the right to family reunification, the objective of the directive would be undermined. Therefore, the AG concludes that the Directive precludes any national legislation which attaches fees to an integration test where such fees could prevent third-country nationals from claiming the right to family reunification conferred by that Directive [53-55].


20 March 2015

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Keywords: 
Family reunification
Integration measures