Administrative Court of Darmstadt, 18.12.2013, Case No.: 5 K 310/12.DA
On September 12, 1963, Turkey and the then European Economic Community (EEC) signed an Association Agreement aimed at bringing Turkey closer to European states, ultimately facilitating Turkey’s accession to the EEC.
This international treaty was subsequently supplemented by additional protocols and decisions.
To regulate the employment and free movement of Turkish workers and their families already residing in a Member State of the European Union, the Association Agreement was supplemented on September 19, 1980, by Decision 1/80 of the EEC-Turkey Association Council.
A key provision in this decision is the so-called standstill clause in Article 13 of Decision 1/80. This clause prohibits the contracting states from introducing “new restrictions” concerning the freedom of movement of workers, the freedom to provide services, and the right of establishment, with the European Court of Justice (ECJ) ruling that this includes residence-related regulations.
In the above decision by the Administrative Court of Darmstadt, the court had to determine whether the Turkish child of a rejected asylum seeker and a Turkish worker with a residence permit needed a residence title until reaching the age of 16.
Facts of the Case:
The immigration authority denied the residence permit for a Turkish child due to a lack of secured maintenance.
The child’s father is a Turkish worker who has lived in Germany since 1994. The mother entered Germany in 2009 and applied for asylum, which was denied.
The child, born in Worms in 2011, holds a Turkish national passport. The immigration authority rejected the application for a residence permit, stating that the child’s maintenance was not covered by the father’s income.
Decision of the Administrative Court of Darmstadt
The court ruled that the child did not even need a residence title.
The Administrative Court of Darmstadt decided that the child, based on the legal situation from 1990, did not need a residence title until reaching the age of 16.
The court ruled that the child has a right to have it established that it is lawfully residing in Germany under the exemption clause of § 2 (2) of the 1990 Foreigners Act (AuslG).
Under the law in force at that time, Turkish nationals under the age of 16 who had a national passport or a child identity card approved as a passport substitute did not need a residence permit as long as one parent held a residence permit.
The old legal situation applies to this case because the Turkish child can invoke a provision of the Association Agreement with Turkey.
Article 13 of Decision 1/80 Prohibits New Restrictions on Access to the Labor Market
According to Article 13 of Decision 1/80 of the Association Council, EU Member States and Turkey are prohibited from introducing new restrictions on the conditions of access to the labor market for workers and their family members whose residence and employment are lawful in their territory.
Article 13 of Decision 1/80 prohibits the introduction of new national measures that aim to or result in subjecting the exercise of freedom of movement for Turkish nationals to stricter conditions than those applicable when the provision came into force in the relevant Member State. This standstill clause also covers all regulations that restrict residence rights as a prerequisite for access to the labor market or make it more difficult to obtain such rights.
In other words, the standstill clause is intended to fix the legal standard once achieved between the Member States and Turkey at this (or a higher) level and protect it from new restrictions in the future.
The Turkish Child Falls Under the Standstill Clause
The court held that the Turkish child falls under this standstill clause because, due to its birth, it is lawfully residing in Germany.
The lawful residence granted by birth is not merely a provisional, procedural legal position. Such a procedural legal status would not be sufficient to establish a lawful residence under Article 13 of Decision 1/80.
The lawful residence following birth reflects the legislator’s intention to account for the special relationship between the infant and the mother immediately after birth, in the interest of family unity and maintaining the parent-child relationship specially protected under Article 6 (1) of the Basic Law (GG).
If the lawful residence of the child serves not to ensure the procedural legality of the residence until a decision on the child’s residence status is made, but rather to protect the special relationship between the parents and the infant immediately after birth in the interest of granting family unity and maintaining the specially protected family care community under Article 6 (1) GG, then it constitutes lawful residence under Article 13 of Decision 1/80.
Conclusion: The ruling is not yet final. The Administrative Court has allowed an appeal to the Higher Administrative Court (VGH) in Kassel and a direct appeal to the Federal Administrative Court (BVerwG).
Source: Administrative Court of Darmstadt
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