Hakan Er v Wetteraukreis.
Date: 2008-09-25
25. In order to answer this question, it should be noted that the first paragraph of Article 7 of Decision No 1/80 has direct effect in the Member States, with the result that Turkish nationals fulfilling the conditions which it lays down may rely directly on the rights conferred on them by that provision. In particular, they have the right, in accordance with the second indent of that provision, of free access to any paid employment of their choice in the host Member State after having been legally resident there for at least five years (see Case C‑351/95 Kadiman  [1997] ECR I‑2133, paragraphs 27 and 28, as well as Case C‑325/05 Derin  [2007] ECR I‑6495, paragraph 47).
26. The rights that this provision grants the child of a Turkish worker with regard to employment in the Member State concerned necessarily imply, so as not to render the right of access to the labour market and to engage in paid employment totally ineffective, a concomitant right of residence in favour of the person concerned (see, inter alia, Case C‑467/02 Cetinkaya  [2004] ECR I‑10895, paragraph 31, and Derin , paragraph 47).
27. The Court has ruled that the unconditional right to take up any employment freely chosen by the person concerned would be rendered wholly meaningless if the competent national authorities were able to impose conditions or restrictions of any sort on the application of the specific rights conferred on Turkish migrants by Decision No 1/80 (see Case C‑329/97 Ergat  [2000] ECR I‑1487, paragraph 41).
28. It follows that it is no longer open to the Member States to adopt measures relating to residence which are such as to impede the exercise of the rights expressly conferred by Decision No 1/80 on a person who satisfies the conditions which it lays down and who is therefore already legally integrated into the host Member State (see Ergat , paragraph 42).
29. It is particularly important not to deprive such a person of his right of residence, precisely at the time when, by virtue of free access to employment of his choosing, he has the prospect of becoming permanently integrated in his host Member State (see, to that effect, Ergat , paragraph 43).
30. The Court has thus consistently held that there can be only two kinds of restrictions on the rights conferred by the first paragraph of Article 7 of Decision No 1/80 on members of a Turkish worker’s family who fulfil the conditions laid down in that paragraph, namely, either that based on the presence of the Turkish migrant in the host Member State where he constitutes, on account of his own conduct, a genuine and serious threat to public policy, public security or public health, in accordance with Article 14(1) of that decision, or that relating to the fact that the person concerned has left the territory of that State for a significant length of time without legitimate reason ( Ergat , paragraphs 45, 46 and 48; Cetinkaya , paragraphs 36 and 38; Derin , paragraph 54; Case C‑373/03 Aydinli  [2005] ECR I‑6181, paragraph 27; Case C‑502/04 Torun  [2006] ECR I‑1563, paragraph 21; and Case C‑349/06 Polat  [2007] ECR I‑8167, paragraph 21).
31. The Court has concluded, on that basis, that a Turkish national accorded rights under Article 7 of Decision No 1/80 cannot be deprived of them either because he was unemployed on account of being sentenced to a term of imprisonment, even one of several years’ duration which was not suspended, or because he never acquired rights relating to employment and residence pursuant to Article 6(1) of that decision. It has held that, in contrast to Turkish workers to whom Article 6(1) applies, the status of members of their family referred to in Article 7 of that decision does not depend on paid employment ( Derin , paragraph 56).
32. Therefore, the fact that the person concerned was not active on the labour market for several years does not prevent him from relying on the provisions of the second indent of the first paragraph of Decision No 1/80 in order to claim a right of residence in the host Member State (see Polat , paragraph 21).
33. This applies a fortiori  to a Turkish national, such as Mr Er, who has not left the labour market. The fact that, at the age of 23, he still does not have paid employment does not prevent his being granted a right of residence.
34. A Turkish national who has joined his parents in a Member State in the context of a family reunion, and has lived with them since the age of two, fulfils the conditions of the second indent of the first paragraph of Article 7 of Decision No 1/80. If, having reached the age of 23, he still has not been in paid employment, he does not as a result lose his right of residence. It is important, on the contrary, not to deny him this right, without which he would be unable to accede to such employment or be able to exercise the right granted to him by that provision in order to become better integrated in the host Member State.