Ljupcho Grozdanovski , 24 juin 2011

The issue of family reunification of Turkish workers has already been examined by the European Court of Justice in cases such as Ergat, C-329/97, and Bozkurt, C-303/08. In the Pehlivan case, rendered on June 16, 2011 (C-484/07), The Court dealt with the effectiveness and continuity of the right of residence in an EU Member State, that the family members of a Turkish worker enjoy by virtue of Decision n° 1/80.

In 1999 Ms Pehlivan, a Turkish national, joined her parents who work and reside in the Netherlands. Qualifying as a family member of a Turkish worker under Decision n° 1/80, Ms Pehlivan was granted a fixed-term residence permit, and lived in her parents’ home during the first three years of her stay in the Netherlands. In 2002, she informed the dutch authorities of the marriage she concluded in 2000 with a Turkish national who had been living with his wife’s family for a period of nine months, and with whom she has a child. The stated authorities considered that in spite of the marriage, Ms Pehlivan’s husband had no legal right to reside in the Netherlands and therefore decided to deport him. Moreover, they retroactively withdrew her residence permit on the ground that, by virtue of dutch Law, a family member of a Turkish worker can no longer benefit from Article 7 of Decision n° 1/80, should he or she conclude a marriage during the first three years of his or her stay in the Netherlands. According to the authorities, the conclusion of a marriage indicates a definitive break of the links that tie the family member to the Turkish worker and mark an end to the cohabitation with the latter. In consequence, Ms Pehlivan is considered to have been an illegal resident in the Netherlands since the date of her marriage in 2000.

The decision of withdrawal of her residence permit was challenged before the dutch courts. Considering that the main proceeding concerns the interpretation of Article 7 of Decision n° 1/80, the referring court addressed three questions for preliminary ruling to the European Court of Justice. Firstly, it demands if the stated Article is applicable to a family member only in the circumstance where there is actual cohabitation with a Turkish worker and if it prevents the Law of a Member State from stipulating that in the case where a family member gets married while residing with the Turkish worker, the ties with the latter are to be considered definitively broken, thus putting an end to any right of residence the family member may have enjoyed by virtue of Decision n° 1/80. Secondly, the referring court asks if EU Law prevents the competent national authorities from challenging the right of residence of a foreign national with retroactive effect. Thirdly, the court asks if the fact that the applicant did not inform the authorities of her marriage shortly after it was concluded, is relevant to the legality of her residence in the Netherlands.

The Court of justice emphasised that Article 7 of Decision n° 1/80 promotes family reunification for Turkish workers in the European Union and progressive integration of their family members in the labour force of the host Member State. The Court stated that the right of residence of a family member is concomitant to that of the Turkish worker for an initial period of three years. Once this period expires, the family member is considered as integrated in the labour force of the host Member State, and his or her right of residence no longer depends on that of the Turkish worker (Ergat, C-329/97). The Court recognised the right of the Member States to regulate the conditions of residence during the initial period of three years, in compliance with the essential purpose and spirit of Article 7 of Decision n° 1/80, namely the unity of the family (pt 47). In consequence, Member States are entitled to require that all the members of the Turkish worker’s family reside together during the stated period (pt 55). If during this time, a family member concludes a marriage and continues to reside with the Turkish worker, a Member State cannot retroactively question the legality of his or her residence, and consider that a change in the person’s marital status translates to a definitive break of the family ties with the Turkish worker. In consequence, the fact that Ms Pehlivan’s marriage occurred while she lived in her parents’ home is irrelevant to the enjoyment of her right of residence, guaranteed by Article 7 of Decision n° 1/80.
The Court of justice concluded that the requirements of the dutch legislation constitute a violation of the stated Article and do not affect Ms Pehlivan’s current and past right of residence.

Reproduction autorisée avec l’indication: Grozdanovski Ljupcho "The effectiveness of the family ties between Turkish workers and their family members", www.ceje.ch, actualité du 24 juin 2011