In the Opinion delivered on Wednesday 27 June in Case C-257/17, Advocate General Paolo Mengozzi held that the Dutch law requiring a person who already has the right to family reunification to pass a second civic integration examination in order to obtain an autonomous residence permit is incompatible with EU law.
In this case, a woman of Chinese nationality and a Congolese national held a permit to reside in the Netherlands with their respective Dutch spouses. After their divorce, they lodged an application for an autonomous residence permit.
The Dutch authorities retroactively granted the Chinese national an autonomous residence permit from the date on which she fulfilled the condition relating to the requirement to pass a second civic integration examination, namely 16 February 2015. Consequently, her lawful residence was interrupted between 10 February 2014 and 16 February 2015 when she was no longer registered at the same address as her spouse.
The Netherlands rejected the application of the Congolese citizens on the ground that he had not proven that he had passed the second civic integration examination or that he was exempted from it or the requirement to pass it had been dispensed with.
The Dutch Council of State asked the Court of Justice whether directive 2003/86 on family reunification precludes a Member State from requiring that nationals of non-EU countries, who have a right of residence by virtue of family reunification and who wish to benefit from an autonomous residence permit have to pass a new civic integration examination beforehand.
The Advocate General responds in the affirmative.
The latter points out that the Court has decided that the member states can demand third country nationals pass a civic integration examination to assess the basic knowledge of both the language and society of the host member state.
The Advocate General observes that in the Netherlands, the integration process appears to take place in two stages. The first stage is governed by the directive on family reunification and a second requires that a new examination is passed if the family member wishes to obtain an autonomous status.
The Advocate General also refutes the argument that the ‘conditions relating to the granting ... of an autonomous residence permit’ can encompass a substantive condition, such as passing a second civic integration examination. He therefore holds that only formal or administrative conditions are covered.
The Advocate General therefore proposes that the Court rules that the directive precludes national legislation which provides that an application for an autonomous residence permit on the part of a national of a non-EU country who has resided lawfully for more than five years in the territory of a Member State for the purposes of family reunification may be rejected because of non-compliance with substantive conditions relating to integration.
The Advocate General considers that the applicable conditions under the Dutch rules are particularly rigorous and go beyond those laid down at the time of first admission to the Netherlands by virtue of the right to family reunification. The applicant must first, within three years, acquire oral and written skills in Dutch (level A2 on the European Framework of Reference), as well as knowledge of Netherlands society and the Dutch labour market.
Finally, Mr Mengozzi considers that the effects of the autonomous right of residence must commence, at the latest, on the date on which that application is made. (Original version in French by Mathieu Bion)