CELEX: 62018CC0089
Language: en
Date: 2019-03-14 00:00:00
Title: Opinion of Advocate General Pitruzzella delivered on 14 March 2019.

OPINION OF ADVOCATE GENERAL
      PITRUZZELLA
      delivered on 14 March 2019 (
            1
         )
      
         Case C‑89/18
      
      A
      v
      Udlændinge- og Integrationsministeriet
      
         (Request for a preliminary ruling from the Østre Landsret (High Court of Eastern Denmark, Denmark)
      
      (Reference for a preliminary ruling — EEC-Turkey Association Agreement — National legislation tightening the conditions for the first admission to the territory of the Member State concerned of spouses of third-country nationals residing in that Member State as workers — Family reunification — Requirement of stronger attachment to the host Member State than to the third-country of origin — Article 13 of Decision No 1/80 — Standstill clause — New restriction — Overriding reason in the public interest — Objective of successful integration — Necessity and proportionality of the new restriction)
      
               1. 
            
            
               The individual rights guaranteed by EU law may come into conflict with the national identities of the Member States which the European Union is also committed to respecting, as is clear from Article 4(2) TEU. In such a case, the Court must strike a necessary but delicate balance between those two a priori competing interests by applying the principle of proportionality. That is the task which, once again, is entrusted to the Court, in the context of this reference for a preliminary ruling, which requires it to adjudicate on whether, in order to obtain a residence permit for the purposes of family reunification with her husband — a Turkish worker lawfully employed on the labour market of the host Member State — the spouse of that worker may lawfully be required, without infringing that worker’s rights in the European Union, to demonstrate that the couple’s overall attachment to the host Member State is greater than their attachment to their country of origin.
            
         
         I. Introduction
      
      
               2.
            
            
               The applicant in the main proceedings, A, is a Turkish national, born in Turkey, who married B, also a Turkish national, on 24 May 1983. The couple had four children, born in Turkey, before divorcing on 24 June 1998. On 7 January 1999, B married a German national resident in Denmark. As the spouse of an EU citizen, B was granted a residence permit in Denmark as from 6 July 1999. In 2006, he was granted a permanent residence permit under the Danish provisions implementing Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. (
                     2
                  ) The four children from the marriage between A and B were also granted residence permits in Denmark for the purposes of family reunification with B.
            
         
               3.
            
            
               B was divorced from his German spouse on 25 June 2009. B remarried A in Denmark on 28 August 2009. On 3 September 2009, A filed an application with the Udlændingeservice (Danish Immigration Service) for a residence permit in Denmark on the basis of her marriage to B who, it is agreed, is a salaried worker.
            
         
               4.
            
            
               On 26 May 2010, the Immigration Service refused the application on the basis of Paragraph 9(1)(1) and (7) of the udlændingeloven (‘the Law on foreign nationals’), (
                     3
                  ) in force on the date of adoption of the decision at issue in the main proceedings, pursuant to which:
               ‘1.   Upon application, a residence permit may be issued to:
               
                        (1)
                     
                     
                        a non-Danish national over 24 years of age, who shares a common residence in marriage or in a stable, long-term cohabitation with a permanent resident of Denmark over 24 years of age, who
                        …
                        
                                 (d)
                              
                              
                                 has had a permanent residence permit in Denmark for more than 3 years.
                              
                           
                  …
               7.   A residence permit …under paragraph (1)(1)(b) to (d) can, unless particularly compelling reasons weigh against so doing, be granted only where the spouses’ or cohabitants’ overall attachment to Denmark is greater than their overall attachment to another country.’
            
         
               5.
            
            
               By decision of 30 September 2010, the Ministerium for Flygtninge, Indvandrere og Integration (Ministry for Refugee, Immigration and Integration Affairs, ‘the Ministry’) dismissed the appeal brought by A against the decision of 26 May 2010, on the ground that A and B did not fulfil the requirement regarding attachment, in accordance with which, on the basis of an overall assessment, their attachment to Denmark had to be stronger than their attachment to a third country. Having recalled the applicable law and the conditions for applying and assessing overall attachment, the Ministry verified whether the spouses A and B had greater overall attachment to Denmark than to Turkey by weighing up (i) B’s attachment to Denmark against his attachment to his country of origin and (ii) A’s attachment to her country of origin. Since A’s application did not show any special personal reason or any particular medical condition justifying the grant of a residence permit despite the lack of overall attachment to Denmark, the Ministry rejected her application and requested that she and her two youngest children pursue their family life in Turkey.
            
         
               6.
            
            
               On 10 March 2014, A instituted proceedings in the Retten i Aalborg (Court of First Instance, Aalborg, Denmark) for annulment of that decision and requested that her application for family reunification be reassessed. The case was referred to the Københavns Byret (the District Court of Copenhagen, Denmark) on 26 May 2014 which, in turn, referred the case to the referring court on 14 December 2016, as the national law allows courts of first instance to refer cases raising issues of principle to the appeal courts so that the latter may deliver judgment at first instance. A sought the annulment of the decision of 30 September 2010 (
                     4
                  ) and a fresh assessment of her application for family reunification.
            
         
               7.
            
            
               The referring court states that Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’) annexed to the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (
                     5
                  ) (‘the EEC-Turkey Association Agreement’) is applicable since it is common ground that B is a Turkish worker. That article provides that Member States 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 … territories.’ According to the referring court, at the time of entry into force of Decision No 1/80, there was no applicable law similar to Paragraph 9(7) of the Law on foreign nationals, which means that that provision constitutes a new restriction within the meaning of Article 13 of Decision No 1/80.
            
         
               8.
            
            
               The referring court recalls the case-law of the Court according to which a new restriction within the meaning of Article 13 of Decision No 1/80 is prohibited ‘unless it falls within the restrictions referred to in Article 14 of that decision or in so far as it is justified by an overriding reason in the public interest, is suitable to attain the legitimate objective pursued and does not go beyond what is necessary in order to attain it.’ (
                     6
                  ) It is clear from the statement of reasons for the proposals for the 2000 and 2002 laws (
                     7
                  ) that the objective pursued by the condition on overall attachment is successful integration. The referring court noted that the Court has already ruled (
                     8
                  ) that such an objective could constitute an overriding reason in the public interest. It therefore remains to be determined, in essence, whether the requirement of overall greater attachment to Denmark than to the country of origin is suitable to achieve the legitimate objective pursued without going beyond what is necessary to attain it.
            
         
               9.
            
            
               It is in those circumstances that the Østre Landsret (High Court of Eastern Denmark, Denmark) decided to stay the proceedings and, by order for reference received at the Court Registry on 8 February 2018, referred the following questions to the Court for a preliminary ruling:
               
                        ‘(1)
                     
                     
                        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], and those restrictions are justified on the basis of the judgments of 12 April 2016, Genc (C‑561/14, EU:C:2016:247) and of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239), recognising the consideration of “successful integration”, can a rule such as Paragraph 9(7) [of the Danish Law on foreign nationals] — 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?”
                     
                  
                        (2)
                     
                     
                        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 sponsor) first came to Denmark at the age of 12 or 13 or later, in the assessment of the sponsor’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 4 to 5 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 7 to 8 years;
                                       
                                    
                           
                                 (ii)
                              
                              
                                 to apply a practice under which it will weigh against fulfilment of the attachment requirement where the sponsor 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?’
                              
                           
                  
         
               10.
            
            
               Written observations were submitted by A, the Danish Government and the European Commission.
            
         
               11.
            
            
               Oral submissions were made by A, the Danish Government and the Commission at the hearing before the Court which took place on 13 December 2018.
            
         
         II. Analysis
      
      
               12.
            
            
               By the questions referred, which should be considered together, the referring court asks, in essence, whether a national measure such as that at issue in the main proceedings making family reunification between a Turkish worker residing lawfully in the Member State concerned and his Turkish spouse subject to a requirement that the couple’s overall attachment to Denmark be greater than their overall attachment to another country constitutes a new restriction within the meaning of Article 13 of Decision No 1/80.
            
         
               13.
            
            
               At the outset, I would point out that this case follows on from the Genc case. (
                     9
                  ) In that case, it was for the Court to assess the compatibility with Article 13 of Decision No 1/80 of another provision of the same Law on foreign nationals which made family reunification between a Turkish worker residing lawfully in the Member State concerned and his minor child subject to a requirement that the latter had, or had the possibility of establishing, sufficient ties with that Member State to enable him successfully to integrate, when the child concerned and his other parent resided in the State of origin or in another State and the application for family reunification was made within 2 years from the date on which the parent residing in the Member State concerned had obtained a permanent residence permit. Much can be learned from the Genc judgment (
                     10
                  ) for the purposes of the present case. Moreover, it is clear from the request for a preliminary ruling that the Danish administration drew the appropriate conclusions from that judgment, as regards the specific provision of the Law on foreign nationals at issue in that case, but that nothing has been addressed regarding the conditions to be satisfied in the event of an application for family reunification by the spouse of a Turkish worker and, in particular, in relation to the requirement regarding overall attachment to Denmark. Although the Danish administration seems convinced that Paragraph 9(7) of the Law on foreign nationals, while constituting a new restriction within the meaning of Article 13 of Decision No 1/80, is lawful because it is justified by an overriding reason in the public interest and is suitable to achieve the legitimate objective pursued without going beyond what is necessary in order to attain it, the national court is less certain.
            
         
         
            A.
          
            The existence of a new restriction justified by an overriding reason in the public interest
         
      
      
               14.
            
            
               As noted by the referring court, the standstill clause set out in Article 13 of Decision No 1/80 prohibits in a general manner the introduction of new measures which are intended to, or the effect of which is to, make a Turkish citizen’s exercise of an economic freedom subject, on the territory of the Member State concerned, to conditions more stringent than those which were applicable at the date of entry into force of that decision. (
                     11
                  )
            
         
               15.
            
            
               The file shows that Paragraph 9(7) of the Law on foreign nationals was introduced after the date on which Decision No 1/80 entered into force in Denmark and that it brings about a tightening of the conditions of admission for a Turkish worker’s spouse wishing to join that worker in Denmark. It is also common ground that B is lawfully employed on the Danish labour market. A is seeking a residence permit in order to join him. In those circumstances, it is where the new restriction is likely to affect B’s freedom to carry out paid employment in Denmark that the application of the national provision at issue in the main proceedings must be precluded. (
                     12
                  ) B’s decision to establish himself and especially to remain in Denmark as a Turkish worker could indeed be adversely affected if the national legislation made family reunification difficult or impossible, since B could then be obliged to choose between his activity in Denmark and his family life in Turkey. (
                     13
                  ) The national legislation at issue in the main proceedings which makes family reunification more difficult by narrowing the circumstances in which the Turkish worker can be joined by his spouse in the host Member state compared to those existing on that territory at the time at which Decision No 1/80 entered into force — and which is thus likely to affect the exercise of such a worker’s freedom to carry out paid employment — is, therefore, a ‘new restriction’, within the meaning of Article 13 of Decision No 1/80, of the exercise by Turkish nationals of freedom of movement of workers in that Member State.
            
         
               16.
            
            
               Such a restriction is prohibited, as pointed out by the referring court, unless it falls within the restrictions referred to in Article 14 of Decision No 1/80 (
                     14
                  ) — which is not relied on in the main proceedings — or it is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it. (
                     15
                  )
            
         
               17.
            
            
               As regards the existence of an overriding reason in the public interest, the Court has held that ‘the objective of ensuring the successful integration of third-country nationals in the Member State concerned … may constitute [such] a reason’, (
                     16
                  ) having noted ‘the importance given, in the context of EU law, to integrating measures, as is clear from Article 79(4) TFEU … and from a number of directives … which provide that the integration of third-country nationals is a key factor in promoting social and economic cohesion, a fundamental objective of the European Union set out in the Treaty’. (
                     17
                  )
            
         
               18.
            
            
               The Danish Government also relies, as an overriding reason in the public interest, on the efficient management of migration flows which it believes to be a primary consideration connected to the aforementioned overriding reason, since such management is necessary in order to ensure the integration of persons with a residence permit in a Member State or persons who may be eligible for such a permit. The Danish Government considers that the proportion of non-Danish nationals in the total population has an impact on the success of integration. Whilst there is no need for the Court to adopt a position on that relationship and that proportion, I note that the Court has already ruled that ‘the objective of preventing unlawful entry and residence constitutes an overriding reason in the public interest for the purposes of Article 13 of Decision No 1/80’ (
                     18
                  ) and that ‘the objective of efficient management of migration flows may constitute [such a] reason’ (
                     19
                  ) capable of justifying a new restriction under that provision.
            
         
               19.
            
            
               I therefore accept that it would be difficult for the Court to reconsider those statements, all the more so because the finding of an overriding reason in the public interest is not, in any event, sufficient to regard the new restriction as being authorised by Article 13 of Decision No 1/80, since it must also prove to be necessary and proportionate, which is the real crux of the problem in the present reference for a preliminary ruling.
            
         
         
            B.
          
            The necessity and proportionality of the new restriction
         
      
      
         1. National legislation and practice
      
      
               20.
            
            
               The national legislation provides that any non-Danish national over 24 years of age, who is in a stable and long-term union with a person who is also over 24 years of age and a resident of Denmark in possession of a permanent residence permit for more than 3 years may apply for a residence permit. However, where the sponsor has not acquired Danish nationality before the age of 28, such a residence permit can be issued to his spouse only if the spouses’ overall attachment to Denmark is greater than their attachment to a third country.
            
         
               21.
            
            
               A full and correct understanding of the scope of that national measure, however, requires going beyond its mere wording and examining, as prescribed by the case-law, (
                     20
                  ) the procedure for its implementation which, in this case, stems from the travaux préparatoires for the Laws of 2000 and 2002, (
                     21
                  ) and the Circular of 2005. (
                     22
                  )
            
         
               22.
            
            
               Thus, where the authorities are required to decide whether the couple requesting reunification have a greater overall attachment to Denmark than to their Member State(s) of origin, they must make an overall assessment, taking into consideration all the information at their disposal. They must therefore weigh up, on the one hand, the attachment to Denmark of the sponsor — in this case the Turkish worker — and, on the other hand, the spouse’s attachment to her country of origin. The authorities must also take account of the overall attachment which the sponsor has maintained with his spouse’s country of origin. Particular account is to be taken of where they were born, where they grew up and where they were schooled as well as the frequency and duration of their visits to the country of origin. Account must also be taken of the spouses’ family ties with Denmark compared to the family ties they have maintained in the country of origin, particularly where one or both of the sponsor’s parents is a native of the same country as his spouse. The question of who has parental control of, and rights of access to, the minor children residing in Denmark is also to be taken into consideration, without, however, being determinative. The linguistic knowledge and language of communication between the spouses must also be taken into account. Furthermore, the educational and professional links of the spouses to Denmark must be examined as well as the amount of time spent in Denmark and the frequency and duration of the visits of the sponsor and/or the spouse to the country of origin. (
                     23
                  ) It is not simply the length of time which the worker has spent on the employment market which is to be assessed; rather, the nature of the work in question is also important as is the question of whether the employment concerned was secured because of qualifications obtained in Denmark. Thus, if the sponsor has worked for4 or 5 years in a job which has contributed to his integration into Danish society because of the contact with the public which it entails or the necessity of communicating in Danish with colleagues or customers, that person can be considered as having a strong attachment to Denmark even if the period of residence has been only ‘4 or 5 years’. (
                     24
                  ) In contrast, stable employment which has continued for the same length of time but which has not involved a significant degree of communication in Danish with the public will not be treated as having enabled the creation of such an attachment. In such a case, the period of residence and employment is extended to ‘7 or 8 years’. (
                     25
                  )
            
         
               23.
            
            
               The fact that the sponsor and the applicant had previously been married and lived together in their country of origin prior to the sponsor’s arrival in Denmark, and that the couple subsequently applied for family reunification on the basis of a remarriage after the sponsor came to Denmark and obtained a permanent residence permit (a ‘married, divorced and remarried’ situation), will militate strongly against the existence of greater overall attachment to Denmark. The fact of being remarried indicates, according to the Danish authorities, that the sponsor maintained a strong attachment with the applicant and with the country of origin.
            
         
               24.
            
            
               In some cases, special grounds militate in favour of granting the partner a residence permit despite the lack of a strong attachment to Denmark. That would be the case, for example, when refusal of such a permit would oblige the spouses to lead their family life in a country which the sponsor cannot enter or reside in or when the sponsor has a serious illness or a disability or is elderly. The existence of a special ground can also be found where the sponsor has parental control or a right of access to minor children living in Denmark. (
                     26
                  ) Lastly, the requirement of greater attachment to Denmark is not applied where the marriage is between residents who were born in Denmark and grew up there or who arrived there as children and grew up and lawfully resided there for 28 years.
            
         
               25.
            
            
               The decision at issue in the main proceedings shows that the Ministry carried out an overall assessment of A’s circumstances and those of her spouse and followed the guidelines which I have just described. It noted, inter alia, that A was born and grew up in Turkey and was schooled there; that she and her spouse communicated in Turkish or Kurdish; that A’s rare visits to Denmark were not such as to create an attachment to Denmark. As regards B’s circumstances, the Ministry found that he was born and grew up in Turkey; that he arrived in Denmark late in life, having first arrived in 1999; that, previously, he had led a shared life with A in Turkey for a long time and that since then had paid many visits to his country of origin for periods of up to 3 months; that his close family members (his parents and two of his siblings) were still in Turkey; that four other siblings were in Denmark; that, even though he had an attachment to the Danish employment market, having regard to the nature and duration of the various jobs which he has undertaken or is currently undertaking in Denmark, they were not such as to lessen B’s strong attachment to Turkey; that the couple’s circumstances of having previously been married, then divorced and then remarried after B obtained a permanent residence permit weighed heavily against the existence of greater attachment to Denmark, (
                     27
                  ) with the remarriage to his first wife indicating that B had maintained an attachment to A and to his country of origin. As regards the couple’s children, the Ministry found that they were all born in Turkey where they had started their lives before joining their father in Denmark and two of them were now adults. In those circumstances, it could be assumed that they maintained their linguistic, cultural and family ties with Turkey. In so far as the couple’s children had already lived separately from their mother, it was the spouses’ choice to divide the family unit in such a way and A could return to Turkey with her two youngest children without such a situation being contrary to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
            
         
         2. Analysis in the light of the principle of proportionality
      
      
               26.
            
            
               According to the case-law of the Court, the assessment by the national authorities — where there is national legislation governing family reunification applicable to a family member of a Turkish worker — must be made on the basis of ‘sufficiently precise, objective and non-discriminatory criteria which must be examined on a case-by-case basis, giving rise to a reasoned decision which may be subject to an effective appeal in order to prevent a systematic administrative practice of refusal’. (
                     28
                  ) It is clear that the Ministry provided full reasons for its refusal decision which enabled the applicant to institute proceedings before the referring court. What appears more problematic to me is the wide range of factors which creates a sense of a certain unforeseeability. (
                     29
                  )
            
         
               27.
            
            
               First, I would point out that the assessment which the authorities carry out is an overall assessment having regard both to the spouse already residing in Denmark — for more than 20 years, in B’s case — and also to the applicant in the main proceedings. I would question whether it is somewhat contradictory, having regard to the nature of the application — which concerns a residence permit for the purposes of family reunification — to require that the applicant must also demonstrate stronger attachment to Denmark than to her country of origin. Indeed, family reunification is, by definition, sought in circumstances where a shared life had to be interrupted or is not possible and where the two individuals in the couple live separately. Nor can it be denied that a large part of family reunifications is aimed at situations where the two members of a couple share the same nationality or are from the same State where they started their life together. That is also true of Turkish workers. According to my reading of the EEC-Turkey Association Agreement and of Decision No 1/80, where both of those texts laid down the legal position of the family members of Turkish workers, the drafters of those texts had the family members of Turkish nationality foremost, if not exclusively, (
                     30
                  ) in mind. In the context of an application for family reunification which, in general, assumes that family ties have been created in the country of origin and that an applicant is seeking to recreate the family unit in the territory of the host Member State, I question to what extent the onus placed on the applicant spouses to prove that they have a greater attachment to Denmark than to their country of origin is an impossible task, especially since the description of the administrative practice does not indicate that any particular weight is given to criteria that are not fulfilled by the applicant for a residence permit for the purposes of family reunification.
            
         
               28.
            
            
               In other words, it is clear that couples comprising two persons of the same nationality, like A and B, will experience greater difficulty in fulfilling the requirement relating to greater attachment to Denmark since the criteria regarding place of birth, childhood and schooling, linguistic knowledge and family ties are more difficult to satisfy where the spouse is still in the country of origin where he or she has spent his or her life and could be difficult to offset by the Turkish worker himself where he has left that State as an adult. Nor may the Danish authorities rely on a spouse’s having stayed over a long period in Denmark in order to establish an attachment to the society, since that is precisely the purpose of the application and such a lawful stay has been, up until that point, prevented or limited to short periods of time. (
                     31
                  ) Regular visits of medium duration by the Turkish worker to his country of origin are interpreted as signs of continued (overly) important attachment to that country but, since a shared life in Denmark is not yet possible, married life — if not family life — can be maintained, albeit sporadically, only because of those frequent trips, in so far as they are compatible with the demands of the Turkish worker’s employment in Denmark.
            
         
               29.
            
            
               Next, the criteria taken into account by the administrative authorities are, according to the Danish Government’s statements, neither absolute nor cumulative. None is determinative on its own. They may also prove to be imprecise. Thus, where arrival in Denmark is ‘late’, that is to say, after ‘the age of 12 or 13’, (
                     32
                  ) residence of at least 12 years by a worker is required, but that duration may be reduced in the case of training or work in Denmark provided, however, that the work is of a certain type, so that a worker employed for4 or 5 years could fulfil the attachment requirement. That period of employment is increased to7 or 8 years where the job is not considered to contribute to the worker’s integration into Denmark. That gives an impression of a certain undecipherability for the applicant, ultimately leaving a broad discretion to the administrative authorities in their decision-making. The requirement imposed by the Court, noted above, that the authorities must make a decision based on precise criteria does not appear to have been fulfilled.
            
         
               30.
            
            
               As regards the ‘married, divorced and remarried’ situation, the referring court states that this involves an irrebuttable presumption, which excludes any consideration of the spouses’ personal circumstances and of their ability to integrate and gives rise to an almost automatic practice of refusing residence permits for family reunification purposes. If that is the case, that presumption is, per se, contrary to the Court’s case-law. (
                     33
                  ) However, according to the Danish Government it is interpreted only as an indication that weighs heavily against the existence of a strong attachment to Denmark. Even if the practice were to prove less drastic than that presented by the referring court, I find it hard to see the real link between the ‘married, divorced and remarried’ situation and the prospect of successful integration and/or an efficient management of migration flows. If the Danish authorities, when faced with such a situation, suspect fraud because the remarriage makes them doubt the sincerity of the marriage which enabled the Turkish worker to obtain a residence permit, those suspicions must be supported by specific evidence against B. In any event, it is not clear from the file that the Danish Government established, whether generally or in particular as regards the couple comprising A and B, a link between the ‘married, divorced and remarried’ situation and an actual fraud. Therefore, the rationale for such a presumption, even if straightforward, may be called in question.
            
         
               31.
            
            
               Finally, and perhaps most importantly, the majority of the criteria which are taken into account are, in themselves, quite removed from the question of successful integration into Danish society of the Turkish worker’s spouse or the couple formed by that spouse and that worker, which is the first of the overriding reasons in the public interest relied upon. Indeed, I do not necessarily see any contradiction between the maintenance of a strong attachment to the country of origin and the ability to integrate into the host State. Furthermore, the criteria which govern the assessment by the Danish authorities are based, for the most part, on factors over which the spouse has not had any influence (such as birthplace, place of schooling, family ties, and so forth). They do not enable a determination of non-integration to be made nor do they enable successful integration to be predicted. In fact, they are rather neutral from that point of view. It would, in my opinion, be more coherent, in the light of the objective pursued, to impose positive, prospective requirements on applicants, such as, for example, an obligation to achieve a certain level of knowledge of the Danish language or Danish society within a reasonable time frame following the authorisation of family reunification.
            
         
               32.
            
            
               As regards the second overriding reason in the public interest relied upon, namely, the efficient management of migration flows, I also find it difficult to establish any logical connection between the various criteria taken into account and the objective pursued. In particular, what do the applicant’s birthplace, the language used to communicate with her spouse or the place where her parents live have to do with the management of migratory flows?
            
         
               33.
            
            
               Article 13 of Decision No 1/80 requires Member States to take into account the particular status of Turkish workers who are neither fully comparable to Union citizens nor third-country nationals like any others and it is in the light of that particular status that, it appears to me, the national legislation at issue in the main proceedings reinforces, in both an excessive and sometimes incoherent manner, the conditions which must be satisfied to enable the Turkish worker concerned to pursue or resume his married life in the host State. Furthermore, the repercussions for B of the implementation of the national legislation, through his spouse, go far beyond his marital situation alone, the Danish authorities having invited A and two of her sons, already in Denmark and with residence permits by virtue of family reunification, to ‘lead their family life in Turkey’. (
                     34
                  ) It is, therefore, clear that the national measure at issue in the main proceedings affects B’s freedom to carry out paid employment, forcing him to choose, in an unjustified manner, in my view, between his employment in Denmark and his family life in Turkey.
            
         
               34.
            
            
               In those circumstances and for all of the foregoing reasons, it is entirely clear that Paragraph 9(7) of the Law on foreign nationals is inappropriate for achieving the legitimate objective pursued and goes beyond what is necessary to attain it.
            
         
               35.
            
            
               Consequently, it is clear from my analysis that a national measure such as that at issue in the main proceedings, making family reunification between a Turkish worker residing lawfully in the host Member State and his spouse subject to a requirement that the couple demonstrate that their overall attachment to the host Member State is greater than their attachment to their third-country or -countries of origin constitutes a new restriction within the meaning of Article 13 of Decision No 1/80 and that such a restriction is unjustified.
            
         
         III. Conclusion
      
      
               36.
            
            
               In light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Østre Landsret (High Court of Eastern Denmark, Denmark), as follows:
               A national measure, such as that in the main proceedings, making family reunification between a Turkish worker residing lawfully in the host Member State and his spouse subject to a requirement that the couple demonstrate a greater attachment to the host Member State than to the third-country or -countries of origin constitutes a new restriction within the meaning of Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, annexed to the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963. Such a restriction is unjustified.
            
         (
            1
         )	Original language: French.
      (
            2
         )	OJ 2004 L 158, p. 77.
      (
            3
         )	Those provisions were inserted into the Law on foreign nationals by lov nr. 365 af 6. juni 2002 om ændring af udlændingeloven og ægteskabsloven med flere (Law No 365 of 6 June 2002 amending the Law on foreign nationals, the Law on marriage, and so forth) which extended and tightened the condition on attachment introduced by lov nr. 424 af 31. maj 2000 (Law No 424 of 31 May 2000). That tightening of the condition on attachment, introduced by the legislative amendment of 2002, resulted, inter alia, in a requirement that the spouses’ overall attachment to Denmark must be greater than their overall attachment to another country. A Circular issued by the Ministry for Refugee, Immigration and Integration Affairs, of 1 December 2005, clarified the practice to be followed under Paragraph 9(7) of the Law on foreign nationals. The condition regarding strong attachment to Denmark was further tightened by a legislative amendment of 2011 prior to the decision of the legislature to revert to the 2003 wording of Paragraph 9(7) of the Law on foreign nationals. At the hearing before the Court, the Danish Government clarified that Paragraph 9(7) of the Law on foreign nationals was repealed in 2018 and replaced by an integration requirement. For the purposes of the analysis, it is the 2003 version of Paragraph 9(7) of the Law on foreign nationals that is to be considered since it comprised the law in force when the decision at issue in the main proceedings was taken in 2010.
      (
            4
         )	The request for a preliminary ruling also mentions the decision of the Ministry dated 24 August 2017, which is the decision whereby the Ministry upheld the rejection of 1 December 2014 by the Udlændingestyrelsen (Danish Immigration Office) of the new application for family reunification made by A. It is clear, however, from the request for a preliminary ruling that that request is focused on the action before the referring court as directed against the Ministry’s decision of 30 September 2010.
      (
            5
         )	OJ 1964 217, p. 3685.
      (
            6
         )	Judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 51 and the case-law cited).
      (
            7
         )	See footnote 3 of this Opinion.
      (
            8
         )	Respective judgments of 12 April 2016, Genc (C‑561/14, EU:C:2016:247) and of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239).
      (
            9
         )	Judgment of 12 April 2016 (C‑561/14, EU:C:2016:247).
      (
            10
         )	Judgment of 12 April 2016 (C‑561/14, EU:C:2016:247).
      (
            11
         )	See judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 33 and the case-law cited).
      (
            12
         )	See, by analogy, judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 37).
      (
            13
         )	See, by analogy, judgments of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 40) and of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 61 and the case-law cited).
      (
            14
         )	Namely, considerations of public policy, public security or public health.
      (
            15
         )	See, inter alia, judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 51 and the case-law cited).
      (
            16
         )	Judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 56).
      (
            17
         )	Judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 55). See also Opinion of Advocate-General Mengozzi in the Genc case (C‑561/14, EU:C:2016:28, paragraphs 31 et seq.).
      (
            18
         )	Judgment of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 38).
      (
            19
         )	Judgment of 29 March 2017, Tekdemir (C‑652/15, EU:C:2017:239, paragraph 39). See also Opinion of Advocate General Mengozzi in the Tekdemir case (C‑652/15, EU:C:2016:960, paragraph 17) and judgment of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 77).
      (
            20
         )	Judgment of 7 August 2018, Yön (C‑123/17, EU:C:2018:632, paragraph 81 and the case-law cited).
      (
            21
         )	See footnote 3 of this Opinion.
      (
            22
         )	See footnote 3 of this Opinion.
      (
            23
         )	Unless the sponsor resided in the spouse’s country of origin because of an expatriation for professional reasons with a Danish authority, an international or equivalent organisation or a Danish company abroad.
      (
            24
         )	See the wording of the questions referred.
      (
            25
         )	See the wording of the questions referred.
      (
            26
         )	This criterion also appears to be taken into consideration in the context of the assessment of the existence of greater attachment to Denmark: see paragraph 21 of this Opinion.
      (
            27
         )	As is clear from the Circular of 1 December 2005 on the implementation of the criterion of attachment in the context of an application for family reunification.
      (
            28
         )	Judgment of 12 April 2016, Genc (C‑561/14, EU:C:2016:247, paragraph 66).
      (
            29
         )	Because of this unforeseeability, the applicant in the main proceedings doubts the ability of the national courts to be able to exercise full judicial review of the national administration’s decisions.
      (
            30
         )	The question of whether the concept of ‘family members’ of a Turkish worker, within the meaning of the first paragraph of Article 7 of Decision No 1/80 is limited to those members of Turkish nationality was referred to the Court in the context of the case giving rise to the judgment of 19 July 2012, Dülger (C‑451/11, EU:C:2012:504) and received a negative response from the Court.
      (
            31
         )	Including, sometimes, for economic reasons. In that regard, I concur with the point of view expressed by Advocate General Mengozzi in his Opinion in Genc (C‑561/14, EU:C:2016:28, point 49).
      (
            32
         )	See the wording of the questions referred.
      (
            33
         )	See judgment of 10 July 2014, Dogan (C‑138/13, EU:C:2014:2066, paragraph 38).
      (
            34
         )	See point 5 of this Opinion.