1. Integration measures or conditions ? Dr. Jürgen Bast

2. Structure of the presentation n German “integration measures abroad” according to the Residence Act n Judgment of the Federal Administrative Court of March 2010 n Compatibility of German law with Article 7(2) of Directive 2003/86 n Outlook

3. Residence Act of 30 July 2004 n Amended by the Act of 19 August 2007, transposing Directive 2003/86 n Introduction of basic language skills (A1 level) as a mandatory requirement for admission of spouses n Skills have to be evidenced before entry (visa application procedure at consular office abroad)

4. Residence Act (ctd.) n In addition to the obligation to attend language courses after admission n Language requirement is applicable to spouses of German and foreign nationals residing in Germany

5. Section 30: Subsequent immigration of spouses (1) A foreigner's spouse shall be granted a residence permit if 1. both spouses are at least 18 years of age, 2. the spouse is able to communicate in the German language on a basic level at least and 3.... Sentence 1, no. 2 shall have no bearing on issuance of the residence permit where 1.... 2. the spouse is unable to provide evidence of a basic knowledge of German on account of a physical, mental or psychological illness, 3.... (2) By way of derogation from sub-section 1, sentence 1, no. 1, the residence permit may be issued to avoid particular hardship....

6. Judgment of the Federal Administrative Court n of March 30, 2010 n FAC is highest Administrative Court in Germany

7. Judgement of FAC (ctd.) n The issues: 1) fundamental right to protection of marriage and family, Article 6 Basic Law (roughly equivalent to Article 8 ECHR) 2) equal treatment clause, Article 3(1) Basic Law 3) Article 7(2) Dir. 2003/86

8. Judgment of FAC (ctd.) n Section 30 were hold to be in conformity with German constitutional law and with Directive 2003/86 n No referral to the ECJ (supposedly an “acte claire”) n Constitutional complaint to the Federal Constitutional Court is admissible

9. Compatibility with EU Law n Is Section 30 an admissible “integration measure” pursuant to Article 7(2) Dir 2003/86 n or rather an inadmissible “integration condition” as referred to, inter alia, in Article 5(2) Dir 2003/109?

10. Method of the ECJ n “The assessment of the substance of the present action depends … on the interpretation of that provision [of the Directive]. In that context, the wording itself of that provision and the aims and scheme of Directive … should be taken into account.” (Case C-518/07, COM v Germany, para. 17)

11. Method of the ECJ (ctd.) n Concerning the scheme: “In view of the fact that Article 44 of Regulation No … and Article 28 of Directive … are based on the same general concept, those two provisions should be interpreted homogeneously …” (Case C-518/07, COM v Germany, para. 28)

12. Method of the ECJ (ctd.) n “By relying on the wording itself … and on the aims and scheme of that directive, it is possible to reach a clear interpretation … It is therefore not necessary to take into account the origins of that directive …” (Case C-518/07, COM v Germany, para. 24)

13. Wording of Article 7(2) n “Member States may require third country nationals to comply with integration measures, in accordance with national law.” n FR: “mesures d’intégration”, DE “Integrationsmaßnahmen” n encompasses pre-entry measures (arg. ex 2 nd sub-paragraph)

14. Wording (ctd.) n Concurrent constructions possible: 1) (objective) “measures” = legal acts establishing requirements for admission, e.g. proving language skills 2) (subjective) “measures” = required activity by the migrant, e.g. attending language courses

15. Scheme of the Directive n Other provisions of Dir 2003/86: Article 4(1), last sub-paragraph, on admission of children over the age of 12, refers to “conditions for integration” n Reference to Article 4(1) and 7(2) in Article 15(3) of the Blue Card Directive 2009/50: “integration conditions and measures”

16. Scheme of the Directive (ctd.) n Directive 2003/109 on Long-term Residents - Articles 5(2) und 15(3), 2 nd sub-para., refer to “integration conditions” - as opposed to “integration measures” in Article 15(3), 1 st sub-para. n Reflects a delicate compromise involving the “mutual recognition” of integration policies (other than language courses)

17. Interim Result n Directives 2003/86 (Family Reunification), 2003/13 (Long-term Residents) and 2009/50 (Blue Card) do apply a distinction between “integration conditions” and “integration measure”. n Homogeneous interpretation is required. n Hardly any guidance is given as to the meaning of the distinction.

18. Aims of the Directive n In general: “promote family reunification” (Chakroun, para. 43) n Recital 2: Fundamental rights (implementing the obligation to protect the family and respect family life) n Recital 3: Harmonization (establishing an EU-wide status entailing an individual right to be admitted)

19. Aims of the Directive n Powers must be exercised in conformity with general principles of EU law (including the principle of proportionality) n Failure to comply must not entail automatic denial of the right to family reunion; individual examination of the “specific situation” is required

20. Result n A system of automatic non-authorization of spouses who fail to prove the required language skills is not a “integration measure” enabled under the Directive n Exceptions “on account of a physical, mental or psychological illness” too narrow (social and cultural barriers to education!)

21. Food for Thought n Language requirements (or more broadly, education requirements) are instruments of selective immigration policies n Primary, restricting effect: non-immigration of persons who fail to meet the requirement n Secondary, conditioning effect: incentive for others to comply with requirements

22. Food for Thought n Within the scope of fundamental rights, the use of education requirements for selecting migrants is generally problematic. Any justification has to address the primary, restricting effect, as well.

23. Integration measures or conditions ? Dr. Jürgen Bast