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Louisa Gothard
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CJEU ruling: K v Staatssecretaris van Veiligheid en Justitie
Date:12 NOV 2018
European Union – Freedom of movement. Article 15(1) and (4) of Council Directive (EC) 2003/86 which permitted an application for an autonomous residence permit, lodged by a third country national who had resided over five years in a member state by virtue of family reunification, to be rejected on the ground that he had not shown that he had passed a civic integration test on the language and society of that member state provided that the detailed rules for the requirement to pass that examination did not go beyond what was necessary to attain the objective of facilitating the integration of those third country nationals, which was for the referring court to ascertain. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the rejection of the applicant's application to change her fixed-term residence permit in the Netherlands and the withdrawal of her fixed-term residence permit. 
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The judgment is available at: C-484/17

Background

From 17 March 1995 to 25 July 2015, the applicant (K) had held a residence permit to reside with her spouse, a third country national. K lodged an application to change that permit into an extended residence permit. The respondent State Secretary for Security and Justice rejected that application on the ground that K had not proved that she had passed, was not subject to, or had been exempted from, the civil integration requirement, namely a civic integration test on the language and society of that member state. 

He also withdrew K's residence permit to reside with a spouse with retroactive effect to 19 August 2011 on the ground that, from that date, she had no longer living been at the same address as her spouse. Following a complaint lodged by K, by decision of 21 December 2016, the respondent reaffirmed his initial decision. Following the dismissal of K's action against that decision, K appealed to the Council of State, Netherlands (the referring court).

In the light of the transmission, enclosed in an annex to the application in the appeal proceedings, of a statement from the Education Executive Agency, Netherlands, finding that K had attempted, at least four times, to pass the civic integration examination and that she had been present at more than 600 hours of the civic integration course, the respondent granted K an autonomous residence permit as of 20 April 2017. Nevertheless, the respondent reaffirmed the withdrawal of K's residence permit to reside with a spouse with retroactive effect to 19 August 2011. 

The referring court harboured doubts as to the compatibility of the civic integration requirement laid down in the Dutch legislation with art 15 of Council Directive (EC) 2003/86 (the Directive), which provided that, not later than after five years of residence, and provided that the family member had not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who had reached majority was to be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor. Pursuant to art 15(4), the conditions relating to the granting and duration of that residence permit were established by national law.

In those circumstances, the referring court stayed the proceedings and referred a question to the Court of Justice of the European Union (the Court) for a preliminary ruling.

Issues and decisions

Whether art 15(1) and (4) of the Directive precluded national legislation, such as that at issue in the main proceedings, which permitted an application for an autonomous residence permit, lodged by a third country national who had resided over five years in a member state by virtue of family reunification, to be rejected on the ground that he had not shown that he had passed a civic integration test on the language and society of that member state.

It followed from a combined reading of art 15(1) and (4) of the Directive that, although issuing an autonomous residence permit was, in principle, an entitlement arising from five years of residence in a member state by virtue of family reunification, the EU legislature nevertheless authorised the member states to subject the grant of such a permit to certain conditions, which it left to be defined by the member states. It also followed from the Court's caselaw that it could not be ruled out that member state could subject the grant of an autonomous residence permit to passing a civic integration examination on the language and society of that member state. However, it was clear from that caselaw that the requirement to pass such an examination imposed by national legislation, such as that at issue in the main proceedings, could not legitimately go beyond what was necessary to attain the objective of facilitating the integration of the third country nationals concerned, which was for the referring court to ascertain (see [19]-21] of the judgment).

For that purpose, the referring court should ensure, in particular, that the knowledge required to pass the civic integration examination was at a basic level, that the condition imposed by the national legislation did not lead to an autonomous residence permit not being granted to third country nationals who had demonstrated their willingness to pass the examination and had made every effort to achieve that objective, that due account was taken of specific individual circumstances and that the fees relating to that examination were not excessive (see [22] of the judgment).

Minister van Buitenlandse Zaken v K: C-153/14 C-153/14 considered; C and another v Staatssecretaris van Veiligheid en Justitie C-257/17 considered.

Preliminary ruling determined.

Neneh Munu Barrister.

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