Attempts to limit forced marriage must not adversely affect the right to family reunification
1 May 2014 02:44 PM
Advocate General
Mengozzi considers that the age limit laid down by EU law for those seeking
family reunification with their spouse may also be reached after the relevant
application has been submitted.
Pursuit of the legitimate
objective of limiting the incidence of forced marriage must not
adversely affect the right to family reunification of genuinely married
couples
EU law1 identifies the
group of family members of third country nationals residing in a
Member State who may be entitled to a residence permit on the ground of
family reunification. With regard to spouses, in order to ensure better
integration and to prevent forced marriages, Directive 2003/86/EC provides
that Member States may impose a minimum age (no more than 21 years)
for the purpose of family reunification. The directive does not, however,
specify the point at which the sponsor and his or her spouse must have
reached that minimum age limit.
Under Austrian law, the spouses
must necessarily have reached the minimum age of 21 at the time the
application for family reunification is submitted. An application submitted
before both spouses have reached the age of 21 must be rejected, even if
they reach that age in the course of the procedure.
In September 2010, Mrs Noorzia, an Afghan national,
applied to the Austrian embassy in Islamabad (Pakistan) for a residence permit for the
purpose of family reunification with her husband, also an Afghan national living in Austria.
That application was rejected by the Austrian authorities on the ground that Mrs Noorzia’s
husband had not reached the age of 21 at the time the application was submitted, even though he had, in any
event, reached that age before the decision rejecting the application was adopted. Mrs Noorzia
appealed against that decision. The matter was brought before the Verwaltungsgerichtshof (the
Austrian Higher Administrative Court), which has requested the Court of Justice to consider whether
Austrian legislation is compatible with the family reunification directive.
In his Opinion , Advocate General Paolo Mengozzi
makes the point first of all that the right to family reunification, which is conferred and governed
by EU law, constitutes a specific aspect of the right to family life, which is, in turn, a
fundamental right enshrined not only in the European Convention on Human Rights but also the Charter of
Fundamental Rights of the EU.
The Court’s case-law has already made clear
that authorisation of family reunification is the general rule and given that, in certain
circumstances, the directive requires Member States to authorise reunification without conferring on them
any margin of discretion in that regard, that obligation reflects clearly defined individual
rights. Therefore, any margin of discretion conferred on Member States must not be exercised in such a way as
to undermine the objective of the directive itself or its
effectiveness.
The Advocate General is of the view that a literal
analysis of the relevant provision of the directive militates in favour of an interpretation to the
effect that the relevant time at which the age limit laid down in the directive must be reached cannot be the
point at which an application for family reunification is submitted but, rather, must be the
point at which the competent authorities have accepted the application.
The Advocate General goes on to state that although
the express purpose of the possibility given to Member States of imposing a minimum age limit for
the purpose of family reunification is the legitimate purpose of preventing forced marriages
— on the basis that being older brings with it a greater degree of maturity, which may, in theory,
help the person concerned to resist pressure to enter a forced marriage — that consideration
must nevertheless be balanced against the right to family reunification of those who are genuinely and
sincerely married. An interpretation of the directive to the effect that it is permissible to
submit an application before the age limit has been reached and to obtain the right of residence where
that age limit has been reached by the time the decision of the administrative authorities on the
application for family reunification is adopted is one that promotes family reunification and eschews a
formalistic interpretation of the measure which prevents such reunification
occurring.
Lastly, on the basis of a systematic analysis of the
directive as a whole, there would appear to be no provision that establishes that reaching the age
limit laid down in the directive is a formal requirement for submitting an
application.
For all
the above reasons, the Advocate General proposes that the Court should rule
that the Austrian provision under
which it is permissible to reject an application for family reunification
on the ground that the age limit
for exercising the right to such reunification has not been
reached, even though that age limit
has been reached by the time the authorities’ decision is adopted,
is incompatible with the family
reunification directive.
NOTE: The Advocate General’s Opinion is not binding on the Court of
Justice. It is the role of the Advocates General to propose to the Court,
in complete independence, a legal solution to the cases for which they
are responsible. The Judges of the Court are now beginning their
deliberations in this case. Judgment will be
given at a later date.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of
the Member States, in disputes which have been brought before them, to
refer questions to the Court of Justice about the interpretation of EU law
or the validity of a European Union act. The Court of Justice does not decide
the dispute itself. It is for the national court or tribunal to dispose of
the case in accordance with the Court’s decision, which is similarly
binding on other national courts or tribunals before which a similar issue is
raised.
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Justice.
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