Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 8 February 2018 — A v Udlændinge- og Integrationsministeriet

(Case C-89/18)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: A

Defendant: Udlændinge- og Integrationsministeriet

Questions referred

In a case where ‘new restrictions’ have been introduced for family reunification between spouses which prima facie infringe the standstill clause in Article 13 of Decision No 1/80 (Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association relating to the Agreement of 12 September 1963 between the European Economic Community and Turkey establishing an Association between the European Economic Community and Turkey), and those restrictions are justified on the basis of the considerations of ‘successful integration’ recognised by the EU Court of Justice in its judgment of 12 April 2016 in Case C-561/14, Genc, ¹ see also the judgment of 10 July 2014 in Case C-138/13, Dogan, EU:C:2014:2066, ² can a rule such as Paragraph 9(7) of the Danish Law on aliens (Udlændingeloven) — under which inter alia it is a general condition for family reunification between a person who is a third country national and has a residence permit in Denmark and that person’s spouse that the couple’s attachment to Denmark be greater than to Turkey — be deemed to be ‘justified by an overriding reason in the public interest, … suitable to achieve the legitimate objective pursued and … not [going] beyond what is necessary in order to attain it’?

If question 1 is answered in the affirmative, with the result that the attachment requirement is generally deemed to be suitable for ensuring attainment of the integration objective, is it then possible, without infringing the restriction test and the requirement of proportionality:

(i)    to apply a practice under which, when the spouse with the residence permit in the Member State (the reference person) first came to Denmark at the age of 12-13 or later, in the assessment of the reference person’s attachment to the Member State significant weight is attached to the following: whether the person either has had a long-term lawful period of residence of around 12 years in the Member State or has had a period of residence and stable employment in the Member State involving a significant degree of contact and communication with colleagues and any customers in the Member State’s language, and which has continued without significant interruptions for at least four to five years, or has had a period of residence and stable employment not involving a significant degree of contact and communication with colleagues and customers in the Member State’s language, which has continued without significant interruptions for at least seven to eight years;

(ii)    to apply a practice under which it will weigh against fulfilment of the attachment requirement where the reference person has maintained a significant attachment to their home country by making frequent or long-term visits to the home country, whilst short-term holiday or educational stays will not weigh against granting a permit;

(iii)    to apply a practice under which it will weigh heavily against fulfilment of the attachment requirement where there is a so-called ‘married, divorced and remarried’ situation?

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¹ Judgment of the Court of 12th April 2016, ECLI:EU:C:2016:247.

² Judgment of the Court of 10th July 2014, ECLI:EU:C:2014:2066.