ECJ 8 November 2012, case C-268/11 (Atilla Gülbahce - v - Freie und Hansestadt Hamburg), Free movement, Work and residence permit

Facts

Mr Gühlbahce, a Turkish national, married a German woman in June 1997. One year later, he was granted a temporary residence permit on the basis of matrimonial cohabitation and a work permit of unlimited duration. The residence permit was extended in June 1999, in August 2001 and again in January 2004.
In July 2005, the German authorities learned that Mr Gülbahce’s wife had  been  living  apart  from  him  since  1  October  1999.  In  February 2006,  the  municipality  of  Hamburg  withdrew,  with  retroactive  effect, the extensions to Mr Gülbahce’s residence permit, as granted in 2001 and 2004. The withdrawal was based on two grounds. The first ground was that, under German law, a resident permit granted on the basis of matrimonial cohabitation loses its validity upon termination of that cohabitation  unless  the  cohabitation  on  German  territory  had  lasted for at least two years. In the case of Mr Gülbahce and his wife, their cohabitation within Germany had lasted less than two years (June 1998 - September 1999). The second ground was based on the EU-Turkey Association Agreement and Decision 1/80 of the Council of Association under  that  Agreement.  Article  6(1)  of  Decision  1/80  provides  that  “a Turkish  worker  duly  registered  as  belonging  to  the  labour  force  of  a Member  State  shall  be  entitled  in  that  Member  State,  after  one  year’s legal  employment,  to  the  renewal  of  his  permit  to  work  for  the  same employer, if a job is available”. Although Mr Gülbahce had satisfied this requirement, because he had had over one year’s legal employment for the same employer at the time his residence permit was withdrawn retroactively (February 2006), this was not the case at the time of the extension  of  the  permit  in  August  2001.  Therefore,  according  to  the Hamburg municipality, the periods of work completed by Mr Gülbahce after August 2001 should not be taken into account for the purpose of acquiring rights under Article 6(1) of Decision 1/80.

National proceedings

Mr  Gülbahce  brought  proceedings  before  the  local  administrative court. It dismissed his claim. On appeal, the regional administrative court  found  in  his  favour.  The  municipality  appealed  to  the  Federal Administrative Court, which overturned the regional court’s judgment and remanded the case back to the regional court. That court referred five questions to the ECJ.

ECJ’s findings

1.   The  ECJ  reformulated  the  referring  court’s  five  questions  into one single question, namely whether Article 6(1) of Decision 1/80 precludes  a  Member  State  from  withdrawing  a  Turkish  worker’s residence  permit  with  retroactive  effect  from  the  point  at  which the worker ceased to comply with the conditions to his residence permit if the withdrawal occurs after the completion of one year’s legal employment with one employer (§ 31 – 35).
2.   The right to continue in paid employment with the same employer after  one  year’s  legal  employment,  in  order  to  be  effective, necessarily implies a concomitant right of residence (§ 36 – 39).
3.   In 2011, after the reference for a preliminary ruling in this case, in  its  judgment  in  the  Unal  case  (C-187/10),  the  ECJ  held  that, where a Turkish national may legitimately rely on rights pursuant to  Decision  1/80,  those  rights  are  no  longer  dependent  on  the continuing existence of the circumstances which gave rise to them. Thus, a Turkish worker who has been employed for more than one year  under  a  valid  work  permit  fulfils  the  conditions  of  Decision 1/80, even though his residence permit had initially been granted for a purpose other than that of engaging in paid employment (§ 43 – 46).

Ruling

The first indent of Article 6(1) of Decision 1/80 […] must be interpreted as precluding the competent national authorities from withdrawing the residence permit of a Turkish worker with retroactive effect from the point when there was no longer compliance with the ground on which it had been issued under national law, provided there is no question of fraudulent conduct on the part of the worker and the withdrawal occurs after the completion of one year of lawful employment under the first indent of Article 6(1) of Decision 1/80.