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ECJ overturns national family reunification provisions

January 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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01-09-2008 - In July 2008, the European Court of Judgment (ECJ) delivered its judgment in a case about family reunification. The implications of the judgment on Denmark’s immigration rules have been the subject of lively media debate in recent weeks: will it open up our borders to immigration and will it affect Danish immigration policy and its employment policy aspects?

ECJ ruling

Elsebeth Aaes-Jørgensen
eaj@norrbomvinding.com

The ECJ recently overturned Ireland's national provisions on family reunification between EU citizens and non-EU citizens. Also in other EU member states the judgment may affect the right of migrant workers to bring their family with them.

In July 2008, the European Court of Judgment (ECJ) delivered its judgment in a case about family reunification. The implications of the judgment on Denmark's immigration rules have been the subject of lively media debate in recent weeks: will it open up our borders to immigration and will it affect Danish immigration policy and its employment policy aspects?

The case from Ireland was commenced by four non-EU citizens, who had come to Ireland in the period from 2004 to 2006. There they applied for political asylum, but were refused. In Ireland each of them married a non-Irish EU citizen. They then applied for a residence permit on the basis of marriage to an EU citizen. But those applications were also refused.

The question before the ECJ was whether the Irish immigration rules were compatible with a Directive from 2004 on the right of EU citizens and their family members to reside freely.

In the ECJ's opinion, the Directive did not allow member states to require family members of an EU citizen to reside lawfully in another member state before applying for family reunification with a spouse living in a member state other than his/her own. The freedom of movement of EU citizens is restricted if reunification with family members in other member states is difficult to obtain, the ECJ said.

According to the ECJ, this also applies even if the non-EU citizen does not marry the EU citizen until after the EU citizen has gone to live in another member state. The Directive, however, does not prevent individual member states from checking for fraud or marriage of convenience and member states can also refuse family reunification in special circumstances.

In Norrbom Vinding's view:

  • employers should note that the judgment does not directly concern the basis on which workers from EU member states are allowed to reside in Denmark, but

  • to the individual employee, the question of whether it will be possible to bring family members to the country of employment will usually be very important. The ECJ's judgment may therefore provide another route to entry for the EU citizen who would otherwise face difficulties bringing his family to the member state in which he will be working.

This information does not constitute legal advice and should not be relied upon as such

For more information please visit www.norrbomvinding.com