The Court of Justice of the European Union (CJEU) recently ruled in the case Yön v. the Landeshauptstadt Stuttgart (City of Stuttgart, case no: C-123/17) that the introduction of a visa requirement for family members of employed Turkish workers who are already residing legally in Germany can be justified on the grounds of implementing effective immigration control and the need to manage migratory flows into Germany. In the court’s view, a visa requirement is justified as long as the process of obtaining one is proportionate to achieving the objective.
The legal issue in this case arises from the fact that in 1980 there was no visa requirement for Turkish nationals wanting to join family members in Germany. The visa requirement was introduced by the German government when the so-called standstill clause in the Association Agreement between the European Economic Community and Turkey was already in effect. This rule categorically prohibited the contracting European countries from subsequently diminishing the legal status of Turkish workers. Since the visa requirement could result in a Turkish worker living in Germany being permanently separated from his or her family, it is a restriction which falls under this rule prohibiting Germany from violating the standstill clause in Article 7 of the Decision No 2/76 from 20 December 1976 adopted by the Association Council. The council was set up by the agreement establishing an association between the European Economic Community and Turkey, which was signed in Ankara on 12 September 1963 . Clarification was therefore needed as to whether the standstill clause in the Association Agreement conflicts with the visa requirement for family members. If this were the case, family members of Turkish workers would be able to enter Germany without a visa in order to establish their family unit in the country.
In this particular case, the plaintiff is a Turkish national and the wife of a Turkish national who has lived and worked in Germany for many years. In 2013 she travelled to Germany via The Netherlands on a Schengen visa and in May 2013 she applied for a residence permit on the basis of family reunification. She has indicated that she suffers from illnesses and is illiterate, which is why she is reliant on the help of her husband. The city of Stuttgart refused her application for a residence permit on the basis of family reunification for two reasons: the plaintiff did not prove that she had even basic German language skills and she did not enter Germany with the requisite national visa. The Administrative Court initially ruled in favour of the plaintiff. According to this court, neither of these reasons were grounds for denying the plaintiff a residence permit because they violated the standstill clause in the Decision No 2/76.
The 1st Appeals Senate of the Federal Administrative Court saw the need for clarification as to whether the legal requirement for a visa for the reunification of a spouse with a Turkish national is compatible with the standstill clause in Article 7 of the Decision No 2/76. With respect to the compatibility of the language requirement with European law, the Appeals Senate saw no need for further clarification of the issue because there is a hardship clause in section 30, paragraph 1, sentence 3, no. 6 of the Residence Act. According to this clause, which had not been taken into consideration by the Administrative Court, the language requirement should be ignored in individual cases where it is not possible or reasonable for the spouse to acquire basic German language skills prior to coming to Germany due to her or his special circumstances.
The Court of Justice of the EU (CJEU) believed the standstill clause in Article 7 of the Decision No 2/76 is applicable in this case, and the subsequent restriction requiring family members to obtain a visa is reconcilable with EU law where there is an overriding issue of public interest and where it is appropriate and proportionate to achieving the legitimate objective.
The CJEU concluded that the visa requirement is based on the government’s desire to implement effective immigration control and to manage migration flows. It also considered the management of migration to be an overriding issue of public interest which can justify restricting a visa exemption. At the heart of the matter is whether or not the current obligation to obtain a visa in Turkey in order to join family in Germany prior to entering the country is proportionate or not, since this visa is a precondition for obtaining a residence permit on the basis of family reunification. The principle of proportionality requires that the specific process for fulfilling this type of obligation cannot go beyond what is necessary for achieving the objective being pursued. In this context it becomes clear that automatically denying the plaintiff a residence permit because she did not meet the visa requirements was not proportionate, and for this reason, it was not reconcilable with EU law.
The German authorities are able to make a decision in individual cases. National law allows for exemptions to the visa requirement in cases of hardship if either a family member fulfils the prerequisites for being entitled to a residence permit or if there are special circumstances which make it unreasonable to require a subsequent visa application in the country of origin. The CJEU determined that although the plaintiff did not meet the visa requirements, the application for a residence permit on the basis of family reunification could not be automatically denied, and a residence permit could still be issued.
The CJEU ruled that this hardship clause was generally suitable for avoiding unproportionate outcomes. For this particular case, the court determined the refusal of the residence permit for family reunification exceeded what was necessary to achieve the objective as it would mean that Ms Yön’s husband would need to accompany her to Turkey because of her health problems so that she could restart the process for obtaining the required visa. Additionally, the the competent authorities, despite having the discretion to waive the obligation for a visa, have not done so, even though they already have all the information needed to rule on the plaintiff’s right to reside in Germany .
Given these circumstances, the court decided that it cannot be validly argued that Ms Yön needs to leave Germany and restart the required visa process in Turkey so the competent authority can assess the lawfulness of her residence on the grounds of family reunification. Nor is this necessary for the authorities to meet their objective of effective control of immigration and the orderly management of migratory flows. Due to Ms Yön’s circumstances, namely her dependence on her husband, he would have to give up his paid employment in Germany to go to Turkey with his wife to start the visa process, and he would presumably not have any guarantee of professional reintegration upon his eventual return to Turkey. The court came to the conclusion that the competent authorities in Germany could indeed carry out their assessment as to whether or not the conditions for family reunification have been met, and thus could achieve their objective without disrupting the lives of the plaintiff and her spouse.
Translated from German into English by Rosa Foyle