The attachment requirement in cases about family reunification of souses does not apply to economically active Turkish citizens – possibility of reopening
On 10 July 2019 the European Court of Justice delivered its judgement in a case on family reunification of spouses to an economically active Turkish citizen residing in Denmark. The Ministry of Immigration and Integration has now established the judgement’s effect on already ruled and pending cases.
On 10 July 2019 the European Court of Justice delivered its judgement in case C-89/18, A against the Ministry of Immigration and Integration, which concerns the attachment requirement, that was one of the Aliens Act’s requirements for family reunification with a spouse in Denmark until 1 July 2018.
The European Court of Justice has established in the ruling that the attachment requirement is contrary to the standstill clause, which is part of the Association Agreement between the EU and Turkey. The standstill clause implies that you normally cannot apply more restrictive requirements on Turkish citizens’ exercise of their economic freedom, than the ones that applied when the Additional Protocol came into effect in 1980.
The Ministry of Immigration and Integration has assessed that the judgement means that the attachment requirement should not have been used in cases where the spouse residing in Denmark is an economically active Turkish national covered by the Association Agreement (which means is an employee, a self-employed person or a service provider).
Possibility if reopening on the grounds of the judgement
Ruled cases in which family reunification with a spouse have been rejected on the grounds of the attachment requirement
The attachment requirement came into effect on applications submitted from 3 July 2000 and later.
On the basis of the judgement the Ministry of Immigration and Integration has assessed that applicants who, on the grounds of a marriage or cohabitation with an economically active Turkish citizen after the 3 July 200, have been granted a rejection on the grounds of not fulfilling the attachment requirement, can have their case reopened and assessed again. It is assessed that these cases have been ruled on the grounds of an inapplicable rule. The access to reopening applies regardless of the applicant´s nationality.
When the immigration authorities reopen a case they will assess whether the other requirements for a residence permit are met.
Applications submitted after 1 January 2011
The Immigration Service can only uniquely identify cases with Turkish citizens residing in Denmark when the application is submitted from 1 January 2011 or later, when the Immigration Service got an electronic case processing system.
Therefore the Immigration Service will, to the extent possible, contact the applicants whose applications for family reunification of spouses to an economically active Turkish citizen were submitted from 1 January 2011 or later and were rejected on the grounds of not fulfilling the attachment requirement. The Immigration Service will inform about the possibility and the procedure on how to get a case reopened. The contact will be made via the spouse or cohabiter partner residing in Denmark.
Applications submitted before 1 January 2011
If the application for family reunification with an economically active Turkish national residing in Denmark was submitted before 1 January 2011 and the application was rejected on the grounds of not fulfilling the attachment requirement, the applicant must contact the Immigration Service and request for a reopening of the case.
The form that should be used for the reopening of the case will soon be available at newtodenmark.dk
Pending cases on family reunification with spouses in which the person residing in Denmark is an eco-nomically active Turkish citizen
The attachment requirement was eliminated with effect to applications for family reunification of spouses submitted from 1 July 2018.
On the basis of the judgement, the Ministry of Immigration and Integration has assessed that the immigration authorities must ignore the attachment requirement in pending cases on family reunification from before 1 July 2018 in which the person residing in Denmark is an economically active Turkish citizen.
During the processing of the case the immigration authorities will assess whether the other requirements for family reunification are met.
Read the ministry's covering letter to the Parliament’s Committee for Immigration and Integration and the European Affairs Committee of 26 August 2019 about the consequences of the European Court of Justice’s judgement in case C-89/18 (in Danish only)