Derin v Landkreis Darmstadt-Dieburg: (Case C-325/05)

ECJ: President of Chamber P Jann; Judges R Schintgen, A Tizzano, M Ileši and E Levits; Advocate General Y Bot: 18 July 2007

In 1982 the claimant, a Turkish national born in 1973, was granted a permit to join his parents in Germany, where they were in lawful employment, and where after completing his education he took a number of jobs. In 1994 he left the family home and set up house on his own. In 2002 he was sentenced to a term of imprisonment for a criminal offence, and an order was made for his expulsion from the country in accordance with German law. He challenged the order on the ground that he had the right of residence in the host state, a corollary of his entitlement to employment there under article 7 of Decision No 1/80, made pursuant to the EEC Association Agreement with Turkey, and that he had not lost that entitlement on either of the only two grounds which could engender such loss, namely, that he constituted a genuine and serious threat to public policy, security or health in the meaning of article 14(1) of Decision No 1/80, or had left the host state for a significant length of time without legitimate reason. The national court found that neither of those grounds pertained in the claimant's case, but took the view that to allow a person such as the claimant, who was over 21 and no longer dependent on his parents, to benefit from article 7 might be contrary to article 59 of the Additional Protocol of 1970, whereby Turkey was not to receive more favourable treatment than that accorded between the member states under the EC Treaty, since under articles 10(1) and 11 of Council Regulation No 1612/68 the children of intra-EC migrant workers only had the right to install themselves with the family or to take up employment in the host state where they were under 21, or still dependent.

The court referred the issue to the Court of Justice for a preliminary ruling.

The Court of Justice held:
A Turkish national who was authorised while a child to enter a member state to join his family and who had acquired the right of free access to employment under article 7 of Decision No 1/80 only lost the corollary right of residence in the host state either in the circumstances provided for in article 14(1) of the Decision or if he left the territory of the host state for a significant length of time without legitimate reason, even if he was over 21 years of age, was no longer dependent on his parents but lived independently in the host state, and was not available to join the labour force for several years because he was serving a sentence of imprisonment. That conclusion was not inconsistent with article 59 of the Additional Protocol, because the children of migrant Turkish workers were not in a more favourable situation than the children of Community migrant workers, since inter alia the rights under articles 10(1) and 11 of Regulation No 1612/68 were unconditional, whereas those under article 7 of Decision No 1/80 were subject to initial authorisation to join the Turkish migrant worker, were graduated according to the length of the family member's residence in the host state, and had geographical limitations.

Appearances: M Lumma and C Schulze-Bahr, agents, for the German Government; W Ferrante and I M Braguglia, agent, for the Italian Government; Tim Ward (Treasury Solicitor) for the United Kingdom Government.