Decision of the Federal Administrative Court by 30 March 2010 (case no.: – BVerwG 1 C 8.09 -)
The Complainants, a Turkish national and her five children born between 1994 and 2006, seek a visa for the subsequent immigration of dependents. The husband of Complainant 1 and father of Complainants 2 through 6 is likewise a Turkish national. He came to Germany in 1998. After his petition for asylum met with no success, in March 2001 he married a German national and now holds a settlement permit. After divorcing his German wife, in December 2006 he married Complainant 1. Previously, even during his marriage to the German woman, he visited the Complainants for a month each year.
In July 2007 the Complainants sought a visa for the subsequent immigration of dependents. The German Embassy in Ankara rejected the applications in April 2008. Among the reasons, it indicated that Complainant 1 had not provided evidence that she could communicate in the German language, on a basic level at least.
In the original actions, the Complainants claimed that the requirement of a basic knowledge of the German language was unconstitutional, and at least that an exceptional case of hardship existed here. Complainant 1, they said, cannot meet this requirement. She is illiterate, lives in a village in eastern Turkey, and is fully occupied with caring for her children. Acquiring literacy near their residence is not possible, they alleged, nor are any language courses offered there either. They stated that her husband cannot reasonably be expected to return. He has established employment and social contacts in Germany. He had left Turkey because he felt threatened on account of his political involvement.
In a judgment of 17 February 2009, the Berlin Administrative Court rejected the suits. As grounds, it stated that Complainant 1 did not meet the requirements for a visa to immigrate subsequently as a spouse, since she was unable to provide the evidence required under Section 30 (1) Sentence 1 No. 2 of the Residence Act that she could communicate in German, on a basic level at least. In this regard, said the court, it could leave open the question of what specific knowledge was required from her, since she had no knowledge of German at all. There were no exceptional circumstances, the court said, and in particular there had been neither arguments nor evident indications that her illiteracy was caused by a physical, intellectual or emotional illness or handicap. Section 30 (1) Sentence 1 No. 2 of the Residence Act is compatible with higher-level law, the court found. Article 6 of the Basic Law grants no entitlement to residence. The court found that there is a substantial public interest in swiftly and smoothly integrating into the economic and social environment a spouse who immigrates subsequently to join another spouse, and also in preventing forced marriages from the viewpoint of residence law. The burdens imposed on foreigners are proportionate to that interest, said the court. There is no reason to fear that acquiring a basic knowledge of the German language would be entirely impossible for a foreigner, or would take so long as to be intolerable in view of the constitutional status of marriage and the family. A period of about one year at least, held the court, is a reasonable expectation. Given the requisite generalised, blanket consideration, there was no reason to believe that the spouse’s subsequent immigration would be delayed significantly longer. The courses offered at the Goethe Institutes take substantially less than a year. A basic knowledge of a foreign language can also be acquired and broadened with the assistance of audio and video language courses. Moreover, a foreigner as a rule can draw upon the assistance of his or her spouse living here. Furthermore, attending language courses in regions of one’s homeland farther removed from one’s place of residence is within the realm of reasonable expectation, as is acquiring literacy. There is no reason, the court found, to assume that acquiring a language, together with acquiring literacy, would take a significantly longer time here than had been mentioned. The court said it can be assumed that opportunities for acquiring literacy exist and are offered in Turkey. Nor does the language requirement violate the general equal treatment clause of Article 3 (1) of the Basic Law. Insofar as Section 30 (1) Sentence 3 No. 4 of the Residence Act permits the spouses of certain nationals to immigrate subsequently without providing evidence of a language knowledge, this serves to comply with international agreements, or to preserve the public interest. Non-political special considerations are appropriate to justify giving preferential status to foreigners from certain countries, the court held. The other exceptional provisions are based on a corresponding public interest, or on serious humanitarian grounds, or on requirements of European law. There is also no apparent reason to believe there is a particular hardship that would require a constitutional interpretation or analogous application of the statutory exceptions in light of Article 6 of the Basic Law. If learning a language entails a substantial burden on the marriage because of personal circumstances, this lies solely within the sphere of responsibility of Complainant 1 and her husband. The court held that the husband can reasonably be expected to return to his family in order to avoid this burden. He lived in Turkey for 32 years, and is familiar with its culture and way of life. He has never abandoned his ties with Turkey and with his family there. In spite of his application for asylum, moreover, he has had no reservations or problems about returning regularly to Turkey; he has always been able to leave again undisturbed. To be sure, he is well integrated in Germany and would have to give up a steady job and a regular income. But even Article 6 of the Basic Law affords no protection against the economic difficulties associated with a return. If Complainant 1 has no entitlement to immigrate subsequently, granting a visa to Complainants 2 through 6 is also out of the question, since their father is not entitled to sole custody. The court ruled that there was no evidence of a hardship case under Section 32 (4) of the Residence Act.
In their (leapfrog) appeals made to the Federal Administrative Court, the Complainants claim in particular that the Administrative Court improperly dismissed the nature and scope of the language knowledge to be acquired. This factor, they say, affects the constitutionality of that court’s ruling. Only an oral ability at the lowest performance level (‘German A 1’) need be evidenced. Even this, they say, is impossible for Complainant 1. The period that the Administrative Court assumes will be necessary in order to learn the German language, including an acquisition of literacy, is too short; at least three years must be estimated for this purpose. The requirement of providing evidence of a basic language knowledge as early as the visa proceedings is a violation of Article 6 of the Basic Law. In this regard, the Complainants say, it is irrelevant whether the husband could return to Turkey. Providing evidence does not prevent forced marriages, and at most plays a minor role in integration. Furthermore, integration courses subsequent to entering the country are a less demanding means. They also question whether the Court’s decision is compatible with Article 3 of the Basic Law with regard to privileging foreigners from within the EU over German nationals, and with regard to privileging certain states whose nationals can enter the country without a visa, and also whether it is compatible with the Family Reunification Directive, which distinguishes between ‘integration measures’ and ‘integration conditions’. Moreover, Article 8 of the ECHR prohibits a separation that significantly exceeds the two-year period.
The Respondent defended the appealed decision.
Sources in Law:
I. Basic Law for the Federal Republic of Germany
(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
(2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.
Equality before the law
(1) All persons shall be equal before the law.
(3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.
Marriage - Family - Children
(1) Marriage and the family shall enjoy the special protection of the state.
(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.
Constitutional principles - Right of resistance
(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.
(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.
II. Residence Act
Requirement for a residence title
(1) In order to enter and stay in the Federal territory, foreigners shall require a residence title, in the absence of any provisions to the contrary in the law of the European Union or a statutory instrument and except where a right of residence exists as a result of the agreement to establish an association between the European Economic Community and Turkey (Federal Law Gazette 1964 II, p. 509) (EEC/Turkey Association Agreement). The residence titles are granted in the form of
1. a visa (Section 6),
2. a residence permit (Section 7),
3. a settlement permit (Section 9) or
4. an EC long-term residence permit (Section 9a).
(4) A visa for the Federal territory (national visa) shall be required for stays of longer duration, whereby this visa shall be issued prior to the foreigner entering the Federal territory. Issuance shall be based on the regulations applying to the residence permit, the settlement permit and the EC long-term residence permit. The duration of lawful stay with a national visa shall be offset against the periods of possession of a residence permit, settlement permit or EC long-term residence permit.
(2) A foreigner shall be granted the settlement permit provided that
1. he or she has held a residence permit for five years,
2. his or her livelihood is secure,
3. he or she has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company; time off for the purposes of child care or nursing at home shall be duly taken into account,
4. the granting of such a residence permit is not precluded by reasons of public safety or order, according due consideration to the severity or the nature of the breach of public safety or order or the danger emanating from the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the Federal territory,
5. he or she is permitted to be in employment, insofar as he or she is in employment,
6. he or she is in possession of the other permits which are required for the purpose of the permanent pursuit of his or her economic activity,
7. he or she has an adequate knowledge of the German language,
8. he or she possesses a basic knowledge of the legal and social system and the way of life in the Federal territory and
9. he or she possesses sufficient living space for himself or herself and the members of his or her family forming part of his or her household.
The requirements of sentence 1, nos. 7 and 8 shall be deemed to be fulfilled if an integration course has been successfully completed. These requirements shall be waived if the foreigner is unable to fulfil them on account of a physical, mental or psychological illness or handicap. The requirements of sentence 1, nos. 7 and 8 may also be waived in order to avoid hardship. The aforesaid requirements shall further be waived if the foreigner is able to communicate verbally in the German language at a basic level and has not been entitled to participate in an integration course pursuant to Section 44 (3), no. 2 or has not been obliged to participate in an integration course pursuant to Section 44a (2), no. 3. The requirements of sentence 1, nos. 2 and 3 shall also be waived if the foreigner is unable to fulfil them due to the grounds stated in sentence 3.
Further education; language courses; school education
(5) A foreigner may be granted a residence permit to attend language courses which do not serve to prepare him or her for a course of study and, in exceptional cases, for the purpose of attending school education. Sub-section 2 shall apply mutatis mutandis.
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. the foreigner
a) possesses a settlement permit,
b) possesses an EC long-term residence permit,
c) possesses a residence permit pursuant to Section 20 or Section 25 (1) or (2),
d) has held a residence permit for two years and the residence permit is not subject to a subsidiary provision pursuant to Section 8 (2) or the subsequent issuance of a settlement permit has not been ruled out by virtue of a rule of law,
e) is in possession of a residence permit, if the marriage existed at the time of said permit being granted and the duration of the foreigner’s stay in the Federal territory is expected to exceed one year or
f) possesses a residence permit pursuant to Section 38a and the marriage already existed in the Member State of the European Union in which the foreigner has the status of a long-term resident.
Sentence 1, nos. 1 and 2 shall have no bearing on issuance of the residence permit where
1. the foreigner is in possession of a residence title pursuant to Sections 19 to 21 and the marriage already existed at the time when he or she established their main ordinary residence in the Federal territory,
2. the foreigner held a residence permit pursuant to Section 20 directly prior to issuance of a settlement permit or an EC long-term residence permit or
3. the conditions specified in sentence 1, no. 3, letter f apply.
Sentence 1, no. 2 shall have no bearing on issuance of the residence permit where
1. the foreigner holds a residence title pursuant to Section 25 (1) or (2) or Section 26 (3) and the marriage already existed at the time when the foreigner established his or her main ordinary residence in the Federal territory,
2. the spouse is unable to provide evidence of a basic knowledge of German on account of a physical, mental or psychological illness,
3. the spouse’s need for integration is discernibly minimal within the meaning of a statutory instrument issued pursuant to Section 43 (4) or the spouse would, for other reasons, not be eligible for an integration course pursuant to Section 44 after entering the Federal territory or
4. by virtue of his or her nationality, the foreigner may enter and stay in the Federal territory without requiring a visa for a period of residence which does not constitute a short stay.
Subsequent immigration of children
(1) The minor, unmarried child of a foreigner shall be granted a residence permit if
1. the foreigner possesses a resident permit in accordance with Section 25 (1) or (2) or a settlement permit in accordance with Section 26 (3) or
2. both parents or the parent possessing the sole right of care and custody hold a residence permit, settlement permit or EC long-term residence permit and the child relocates the central focus of its life together with its parents or the parent possessing the sole right of care and custody to the Federal territory.
(2) A minor, unmarried child who is 16 years of age or older shall be granted a residence permit if he or she has a command of the German language or if it appears on the basis of the child’s education and way of life to date that he or she will be able to integrate into the way of life which prevails in the Federal Republic of Germany and both parents or the parent possessing the sole right of care and custody hold a residence permit, settlement permit or EC long-term residence permit.
(2a) The minor, unmarried child of a foreigner who holds a residence permit pursuant to Section 38a shall be granted a residence permit if family unity already existed in the Member State of the European Union in which the foreigner possesses the status of a long-term resident. The same shall apply if the foreigner held a residence permit pursuant to Section 38a directly prior to issuance of a settlement permit or an EC long-term residence permit.
(3) A minor, unmarried child of a foreigner who is under 16 years of age shall be granted a residence permit if both parents or the parent possessing the sole right of care and custody possess a residence permit, settlement permit or EC long-term residence permit.
(4) A minor, unmarried child of a foreigner may otherwise be granted a residence permit if necessary in order to prevent special hardship on account of the circumstances pertaining to the individual case concerned. The child’s wellbeing and the family situation are to be taken into consideration in this connection.
Termination of the lawfulness of residence; continued validity of restrictions
(1) The residence title shall expire in the following cases:
1. upon expiry of its period of validity,
2. upon the occurrence of an invalidating condition,
3. upon withdrawal of the residence title,
4. upon revocation of the residence title,
5. upon expulsion of the foreigner,
5a. announcement of a deportation order pursuant to Section 58a,
6. if the foreigner leaves the Federal territory for a reason which is not of a temporary nature,
7. if the foreigner leaves the Federal territory and fails to re-enter the Federal territory within six months or within a longer period set by the foreigners authority,
8. if a foreigner files an application for asylum following the granting of a residence title pursuant to Sections 22, 23 or 25 (3) to (5); a visa issued for several entries or with a period of validity in excess of three months shall not expire in accordance with numbers 6 and 7 above.
(2) The settlement permit of a foreigner who has lawfully resided in the Federal territory for at least 15 years and the settlement permit of his or her cohabiting spouse shall not expire in accordance with sub-section 1, nos. 6 and 7, if the aforementioned persons’ subsistence is assured and no grounds for expulsion apply pursuant to Section 54, nos. 5 to 7 or Section 55 (2), nos. 8 to 11. The settlement permit of a foreigner cohabiting with a German as his or her spouse shall not expire pursuant to sub-section 1, nos. 6 and 7 if no grounds for expulsion apply pursuant to Section 54, nos. 5 to 7 or Section 55 (2), nos. 8 to 11. On request, the foreigners authority at the place in which the foreigner was last ordinarily resident shall issue a certificate confirming the continued validity of the settlement permit.
(3) The residence title shall not expire in accordance with sub-section 1, no. 7, if the specified period is exceeded solely on account of the foreigner carrying out compulsory military service in his or her native country and the foreigner re-enters the Federal territory within three months of discharge from said military service.
(4) A longer period will generally be granted pursuant to sub-section 1, no. 7 if the foreigner intends to leave the Federal territory for reasons of a temporary nature and is in possession of a settlement permit, or if the stay outside of the Federal territory serves the interests of the Federal Republic of Germany.
(5) The exemption from the requirement for the residence title shall not apply if the foreigner is expelled, removed or deported; Section 11 (1) shall apply mutatis mutandis.
(6) Geographic and other restrictions and conditions under this Act and other acts shall remain in force after expiry of the residence title or the suspension of deportation until such time as they are lifted or the foreigner meets his obligation to leave the Federal territory pursuant to Section 50 (1) to (4).
(7) Upon a person entitled to asylum or a foreigner whom the Federal Office for Migration and Refugees has incontestably granted refugee status leaving the Federal territory, the residence title shall not expire as long as he or she is in possession of a valid travel document for refugees issued by a German authority. The foreigner shall have no entitlement to the renewed issuance of a residence title on the basis of his recognition as a person entitled to asylum or by virtue of having been incontestably granted refugee status by the Federal Office for Migration and Refugees, if he or she has left the Federal territory and the competence for issuing a travel document has passed to another state.
(8) Prior to revocation of a residence permit pursuant to Section 38a (1), prior to the expulsion of a foreigner who holds such a residence permit and prior to issuing a deportation order against a foreigner pursuant to Section 58a, the competent authority in the proceedings pursuant to Section 91c (3) shall, through the Federal Office for Migration and Refugees, afford the Member State of the European Union in which the foreigner holds the legal status of a long-term resident an opportunity to submit an opinion, if deportation to an area in which this legal status cannot be acquired is under consideration. Upon the opinion being received from the other Member State in good time, it shall be considered by the competent authority.
(9) The EC long-term residence permit shall expire only if
1. issuance thereof is revoked on account of fraudulent misrepresentation, threats or bribery,
2. the foreigner is expelled or is served with a deportation order pursuant Section 58a,
3. the foreigner is resident for a period of twelve consecutive months outside of the area in which the legal status of a long-term resident can be acquired,
4. the foreigner remains outside of the Federal territory for a period of six years or
5. the foreigner acquires the legal status of a long-term resident in another Member State of the European Union. Sub-sections 2 to 4 shall apply mutatis mutandis to the cases specified in sentence 1, nos. 3 and 4.
(2) In the case of foreigners who are in possession of a residence permit or a residence title for exceptional circumstances prior to 1 January 2005, for the purposes of the decision on the granting of a settlement permit it shall be sufficient with regard to such foreigners’ knowledge of the language if they are able to communicate verbally in the German language at a basic level. Section 9 (2), sentence 1, nos. 3 and 8 shall not apply.
(3) In the case of foreigners who are lawfully resident in Germany prior to 1 January 2005, Section 20 of the Foreigners Act shall apply in its most recently amended version with regard to the subsequent immigration of children born prior to this date, unless this Residence Act grants a more favourable legal status.
Regulations governing old cases
(1) By way of derogation from Section 5 (1), no. 1 and (2), a foreigner whose deportation has been suspended should be granted a residence permit where he or she has been continuously resident in the Federal territory for at least eight years on 1 July 2007, or, if he or she lives together with one or several minor, unmarried children as a family unit, where he or she has been continuously resident in the Federal territory for at least six years on the said date, by virtue of his or her deportation having been suspended, his or her residence being permitted or a residence permit having been issued on humanitarian grounds and he or she
1. has sufficient living space at his or her disposal,
2. has an adequate knowledge of the spoken German language corresponding to level A2 of the Common European Framework of Reference for Languages,
3. furnishes proof that any children of school age actually attend school,
4. has not wilfully deceived the foreigners authority as to circumstances of relevance to his or her situation under residence law and has not wilfully delayed or obstructed official measures to end his or her residence,
5. does not have any links to extremist or terrorist organisations and does not support such organisations and
6. has not been convicted of an offence wilfully committed in the Federal territory, whereby fines totalling up to 50 daily rates or up to 90 daily rates in the case of offences which, in accordance with the Residence Act or the Asylum Procedure Act, can only be committed by foreigners shall be ignored as a general principle.
Where the foreigner ensures his or her subsistence independently by means of an economic activity, the residence permit shall be granted pursuant to Section 23 (1), sentence 1. It shall otherwise be issued pursuant to sentence 1; it shall apply as a residence title pursuant to Chapter 2, Part 5; Sections 9 and 26 (4) shall not apply. The requirement stated in sentence 1, no. 2 may be waived until 1 July 2008. The requirement stated in sentence 1, no. 2 shall be waived if the foreigner is unable to meet it on account of a physical, mental or psychological illness or handicap or on grounds of old age.
(2) An unmarried child of full age whose deportation has been suspended, said child being the child of a foreigner whose deportation has been suspended and who has been continuously resident in the Federal territory for at least eight years on 1 July 2007, or, if he or she lives together with one or several minor, unmarried children as a family unit, where he or she has been continuously resident in the Federal territory for at least six years on the said date, by virtue of his or her deportation having been suspended, his or her residence being permitted or a residence permit having been issued on humanitarian grounds, may be granted a residence permit pursuant to Section 23 (1), sentence 1 where said child was a minor at the time of entering the Federal territory and where it appears, on the basis of the child’s education and way of life to date, that he or she is capable of integrating into the way of life which prevails in the Federal Republic of Germany. The same shall apply to a foreigner who has been continuously resident in the Federal territory for at least six years as an unaccompanied minor by virtue of his or her deportation having been suspended, his or her residence being permitted or a residence permit having been issued on humanitarian grounds, where it appears, on the basis of the child’s education and way of life to date, that he or she is capable of integrating into the way of life which prevails in the Federal Republic of Germany.
(3) If a family member living as part of a family household has committed offences pursuant to sub-section 1, sentence 1, no. 6, this shall lead to refusal of the residence permit for other family members according to this provision. Sentence 1 shall not apply to the spouse of a foreigner who has committed offences within the meaning of sub-section 1, sentence 1, no. 6 where the spouse otherwise meets the requirements of sub-section 1 and it is necessary to enable the continued stay of the spouse in order to avoid special hardship. Where, in exceptional cases, children are separated from their parents, their care and welfare in Germany must be ensured.
(4) The residence permit may be issued subject to the condition that the foreigner attend an integration interview or that an integration agreement be concluded. The residence permit entitles the holder to pursue an economic activity.
(5) The residence permit shall be issued with a period of validity until 31 December 2009. It shall be extended by two further years as a residence permit pursuant to Section 23 (1), sentence 1 if the foreigner’s subsistence was ensured up to 31 December 2009 primarily by the foreigner on his or her own through the pursuit of an economic activity or if the foreigner has ensured his or her subsistence on his or her own on a non-temporary basis since 1 April 2009 at least. In both cases, facts must be available to justify the assumption that the foreigner’s subsistence will be for the most part ensured in the future. In the case of sub-section 1, sentence 4 the residence permit shall be issued with an initial period of validity extending only until 1 July 2008 and shall be extended only if the foreigner furnishes proof that he or she meets the conditions of sub-section 1, sentence 1, no. 2 by the aforesaid date at the latest. Section 81 (4) shall not apply.
(6) With regard to extension of the residence permit, derogation from sub-section 5 shall be possible in order to avoid cases of hardship. This provision shall apply in the case of
1. apprentices undergoing training in a recognised trade or on government-sponsored pre-vocational training measures,
2. families with children who are only temporarily reliant on supplementary social benefits,
3. single parents who are temporarily reliant on social benefits and who cannot reasonably be expected to take up employment pursuant to Section 10 (1), no. 3 of Social Code Book II,
4. persons who are unable to work but whose maintenance and any necessary care is secured on a long-term basis by any other means without recourse to any public benefits, except where the benefits are based on contributions which have been paid in,
5. persons who are 65 years of age or older on 31 December 2009, when they have no family in their country of origin but do have dependents (children or grandchildren) who are permanently resident in the federal territory or German nationals and when it is thus ensured that no social benefits will be claimed for such persons.
(7) The Länder may order a residence permit pursuant to sub-sections 1 and 2 to be refused to nationals of certain states on grounds of national security for the Federal Republic of Germany. In order to ensure a nationwide uniform approach, such an order shall require the approval of the Federal Ministry of the Interior.
III. Residence Regulation
Privileges for nationals of certain states
(1) Nationals of Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand and the United States of America may also enter into the Federal territory and stay in the said territory for a period which does not constitute a short stay without requiring a visa. A required residence title may be obtained in the Federal territory.
(2) The same applies to nationals of Andorra, Honduras, Monaco and San Marino who do not intend to pursue an economic activity, with the exception of the activities stated in Section 17 (2).
(3) A required residence title shall be applied for within three months of entering the Federal territory. The deadline for application shall expire before the specified period, if the foreigner is expelled or his or her stay is subjected to a time limit pursuant to Section 12 (4) of the Residence Act.
IV. Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
V. Consolidated version of the Treaty on European Union (TEU)
(ex Article 6 TEU)
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
VI. Consolidated version of the Treaty on the Functioning of the European Union (TFEU)
(ex Article 12 TEC)
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
VII. Consolidated Version of the Treaty of Establishing the European Community (TEC)
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
VIII. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification
1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:
(a) the sponsor’s spouse;
(b) the minor children of the sponsor and of his/her spouse, including children adopted in accordance with a decision taken by the competent authority in the Member State concerned or a decision which is automatically enforceable due to international obligations of that Member State or must be recognised in accordance with international obligations;
(c) the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement;
(d) the minor children including adopted children of the spouse where the spouse has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement.
The minor children referred to in this Article must be below the age of majority set by the law of the Member State concerned and must not be married.
By way of derogation, where a child is aged over 12 years and arrives independently from the rest of his/her family, the Member State may, before authorising entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of implementation of this Directive.
2. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the following family members:
(a) first-degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin;
(b) the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health.
3. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), and of the unmarried minor children, including adopted children, as well as the adult unmarried children who are objectively unable to provide for their own needs on account of their state of health, of such persons.
Member States may decide that registered partners are to be treated equally as spouses with respect to family reunification.
4. In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse.
By way of derogation from paragraph 1(c), Member States may limit the family reunification of minor children of a further spouse and the sponsor.
5. In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her.
6. By way of derogation, Member States may request that the applications concerning family reunification of minor children have to be submitted before the age of 15, as provided for by its existing legislation on the date of the implementation of this Directive. If the application is submitted after the age of 15, the Member States which decide to apply this derogation shall authorise the entry and residence of such children on grounds other than family reunification.
5. When examining an application, the Member States shall have due regard to the best interests of minor children.
2. Member States may require third country nationals to comply with integration measures, in accordance with national law.
With regard to the refugees and/or family members of refugees referred to in Article 12 the integration measures referred to in the first subparagraph may only be applied once the persons concerned have been granted family reunification.
Member States may require the sponsor to have stayed lawfully in their territory for a period not exceeding two years, before having his/her family members join him/her.
By way of derogation, where the legislation of a Member State relating to family reunification in force on the date of adoption of this Directive takes into account its reception capacity, the Member State may provide for a waiting period of no more than three years between submission of the application for family reunification and the issue of a residence permit to the family members.
1. Member States may reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a family member’s residence permit, in the following circumstances:
(a) where the conditions laid down by this Directive are not or are no longer satisfied.
When renewing the residence permit, where the sponsor has not sufficient resources without recourse to the social assistance system of the Member State, as referred to in Article 7(1)(c), the Member State shall take into account the contributions of the family members to the household income;
(b) where the sponsor and his/her family member(s) do not or no longer live in a real marital or family relationship;
(c) where it is found that the sponsor or the unmarried partner is married or is in a stable long-term relationship with another person.
2. Member States may also reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew the family member’s residence permits, where it is shown that:
(a) false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used;
(b) the marriage, partnership or adoption was contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State.
When making an assessment with respect to this point, Member States may have regard in particular to the fact that the marriage, partnership or adoption was contracted after the sponsor had been issued his/her residence permit.
3. The Member States may withdraw or refuse to renew the residence permit of a family member where the sponsor’s residence comes to an end and the family member does not yet enjoy an autonomous right of residence under Article 15.
4. Member States may conduct specific checks and inspections where there is reason to suspect that there is fraud or a marriage, partnership or adoption of convenience as defined by paragraph 2. Specific checks may also be undertaken on the occasion of the renewal of family members’ residence permit.
Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.
IX. Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents
Conditions for acquiring long-term resident status
2. Member States may require third-country nationals to comply with integration conditions, in accordance with national law.
Conditions for residence in a second Member State
1. As soon as possible and no later than three months after entering the territory of the second Member State, the long-term resident shall apply to the competent authorities of that Member State for a residence permit.
Member States may accept that the long-term resident submits the application for a residence permit to the competent authorities of the second Member State while still residing in the territory of the first Member State.
2. Member States may require the persons concerned to provide evidence that they have:
(a) stable and regular resources which are sufficient to maintain themselves and the members of their families, without recourse to the social assistance of the Member State concerned. For each of the categories referred to in Article 14(2), Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions;
(b) sickness insurance covering all risks in the second Member State normally covered for its own nationals in the Member State concerned.
3. Member States may require third-country nationals to comply with integration measures, in accordance with national law.
This condition shall not apply where the third-country nationals concerned have been required to comply with integration conditions in order to be granted long-term resident status, in accordance with the provisions of Article 5(2).
Without prejudice to the second subparagraph, the persons concerned may be required to attend language courses.
4. The application shall be accompanied by documentary evidence, to be determined by national law, that the persons concerned meets the relevant conditions, as well as by their long-term resident permit and a valid travel document or their certified copies.
The evidence referred to in the first subparagraph may also include documentation with regard to appropriate accommodation.
(a) in case of exercise of an economic activity the second Member State may require the persons concerned to provide evidence:
(i) if they are in an employed capacity, that they have an employment contract, a statement by the employer that they are hired or a proposal for an employment contract, under the conditions provided for by national legislation. Member States shall determine which of the said forms of evidence is required;
(ii) if they are in a self-employed capacity, that they have the appropriate funds which are needed, in accordance with national law, to exercise an economic activity in such capacity, presenting the necessary documents and permits;
(b) in case of study or vocational training the second Member State may require the persons concerned to provide evidence of enrolment in an accredited establishment in order to pursue studies or vocational training.
X. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
Access to integration facilities
1. In order to facilitate the integration of refugees into society, Member States shall make provision for integration programmes which they consider to be appropriate or create pre-conditions which guarantee access to such programmes.
2. Where it is considered appropriate by Member States, beneficiaries of subsidiary protection status shall be granted access to integration programmes.
XI. Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement
1. Nationals of third countries on the list in Annex I shall be required to be in possession of a visa when crossing the external borders of the Member States.
XII. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the
Treaty on European Union, and without prejudice to the special provisions of those Treaties, any
discrimination on grounds of nationality shall be prohibited.
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due
regard for the principle of subsidiarity and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers.
XIII. Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association.
The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.
1. The provisions of this section shall apply from 1 December 1980.
XIV. ADDITIONAL PROTOCOL to the Agreement establishing an Association between the European Economic Community and Turkey following the enlargement of the European Union
1. The Contracting Parties shall refrain from introducing between themselves any new restrictions
on the freedom of establishment and the freedom to provide services.