Kazım-Kuş decision
The Kazım Kuş decision (case C-237/91) is a judgment of the European Court of Justice (ECJ) of December 16, 1992 in a preliminary ruling procedure on the right of residence of a Turkish national in Germany. The procedure is regarded as a model process that has significantly strengthened the right to stay for all Turks in Germany .
Subject of dispute
Plaintiff Kuş came to the Federal Republic of Germany on August 24, 1980. On April 16, 1981, he married a German citizen. By order of August 6, 1984, the mayor of Wiesbaden refused to extend Kuş's residence permit on the grounds that the Turkish citizen's marriage had been divorced at the end of 1983. Kuş initially objected to this without success. From April 1, 1982, Kuş had been employed with a valid work permit in Germany without interruption, initially for seven years with the same company.
process
Kuş challenged the mayor's ruling at the Wiesbaden Administrative Court: on May 23, 1985, execution was initially suspended retrospectively and, with the judgment of October 30, 1987, ultimately granted that the city of Wiesbaden had to extend Kuş's residence permit. The state capital then appealed to the Hessian Administrative Court. Although the plaintiff's non-claim to the issue of a residence permit under German law was established here, the judges at the same time pointed out the possibility of applying Article 6 of Decision No. 1/80, which could serve the interests of the plaintiff, to be examined. The proceedings were suspended in order to come to a preliminary ruling on three fundamental questions:
“1) If a Turkish worker fulfills the requirements of Article 6 (1), third indent of Decision No. 1/80 of the Association Council of EEC ° Turkey on the development of the association, if his stay is considered permitted by national law during the procedure for the issuing of a residence permit applies and he has been employed for more than four years due to this right of residence and a corresponding work permit?
2) The provision of Article 6, Paragraph 1, first indent of the above-mentioned decision applies if a Turkish national who has entered the Federal Republic of Germany for the purpose of marrying a German national and whose marriage has been divorced after three years after the divorce is seeking a residence permit for the purpose of employment and has already been employed by the same employer for two and a half years with a valid work permit at the time this residence permit application is rejected?
3) Can a Turkish employee, under the conditions mentioned under 1 or 2, request the extension of the residence permit in addition to the extension of the work permit directly on the basis of Article 6 paragraph 1 first or third indent of the above-mentioned decision, or the regulation of the consequences of residence law belongs to the employment law Decisions of the Association Council EEC ° Turkey on the implementing provisions which the Member States are responsible for taking under Article 6 (3) of this decision without being bound by Community law? "
The German Federal Government also made statements on these questions. The Hessian Administrative Court finally submitted the matter to the European Court of Justice.
Decision of the court
This decided on December 16, 1992:
"Article 6, paragraph 1, third indent of Decision No. 1/80 of the Association Council of 19 September 1980 established by the Association Agreement between the European Economic Community and Turkey on the development of the association is to be interpreted as meaning that a Turkish worker does the The requirement of having been properly employed for at least four years is not fulfilled if he has exercised this employment within the framework of a right of residence that was only granted to him on the basis of national regulations under which residence is permitted in the host country during the procedure for issuing a residence permit ; this also applies if the right of residence of the person concerned has been confirmed by a judgment of a court of first instance against which an appeal has been lodged.
The first indent of Article 6 (1) of Decision No 1/80 is to be interpreted as meaning that a Turkish national who has received a residence permit for the territory of a Member State in order to marry a national of that Member State there and who has been there for more than a year has worked for the same employer with a valid work permit for more than one year, is entitled to an extension of his work permit according to this provision, even if his marriage no longer exists at the time when the decision on the application for extension is made.
A Turkish employee who fulfills the requirements of Article 6 Paragraph 1, first or third indent of Decision No. 1/80, can directly invoke these provisions in order to extend his residence permit in addition to the extension of his work permit. "
literature
- Bertold Huber: The Kus judgment of the European Court of Justice: Further residence security safeguards for Turkish employees. In: New journal for administrative law. 1993, pp. 246-248.
swell
- ↑ Turks with us, Politics and Education, Volume 3/2000, Ed .: LpB
- ^ A b c Kazim Kus against state capital Wiesbaden. Decision of the European Court of Justice of 16 December 1992 (case C-237/91)