International students wishing to study in the European Union cannot be blocked by national authorities if they meet the general requirements set out in EU law, the European Court of Justice (EU) has said. Student organizations welcomed the court ruling as a victory for freedom of learning, and it will now be taken into account in the recast of EU directives.
The decision, published in September, concerns Mohamed Ali Ben Alai, a German-born Tunisian student who was accepted to study mathematics at the Technical University of Dortmund. German authorities denied him a student visa on the grounds that his grades and language skills were inadequate, and that the link between the course and his intended career was too vague.
After several visa applications were rejected, Ben Alai referred his case to the Berlin Administrative Court, which in turn consulted with the EU Court on the validity of the refusal. The court in Luxembourg concluded that the authorities should have allowed the student to come to him, as he apparently met the requirements of the current EU directive on “third country” students and did not pose a threat to public policy, security or health.
The decision is important for two reasons, says Yves Pasqua, director of migration policy and mobility at European Policy
Center in Brussels, editor of the European Migration Law website (europeanmigrationlaw.eu).
First, it states that the conditions for learning in Europe are exhaustive, so that member countries cannot add additional conditions. This is fundamental to the goal of the Harmonized Access Directive for students from third countries.
The second reason is that the ECJ sees a division of responsibilities when it comes to whether a student fulfills all the conditions for admission. “Reading the verdict between the lines, the court says that the authorities of the member states have the opportunity to check whether a person is a risk or threat to public safety. And everything else falls into the hands of higher education institutions, ”Pasquau says.
Thus, when it comes to a student’s language skills, which according to the directive must be adequate before it can be admitted, the opinion of the university matters.
Alexander Hugenbum of Maastricht University, who studies student mobility, agrees that this decision is important. “If there is a right to admission under this directive, it applies not only to direct action, as in the case of Germany, but in principle it can also be used to challenge any indirect ways in which Member States try to make you students harder to live.” This may include the high cost of obtaining a visa, long processing time or quotas for students. Similarly, requirements for a very high level of language proficiency for students from third countries can be challenged as disproportionate or obstacles to their right to learn.
The implications of the Ben-Alai decree are expected to be reflected in a revised directive for students and researchers from third countries, which is currently being considered by the Council of Ministers. Although the codification of the right of access is not expected to be controversial, it is possible that some Member States will try to regain some control – for example, over the volume of admissions or the ease with which students subsequently move to work.
The UK, Ireland and Denmark have repealed existing legislation and are likely to do so again.
“Many Member States are trying to reduce the opportunities for legal migration to their countries and are reluctant to dwell on the directive, which basically says that you are no longer allowed to create your own policy for this particular category,” Hugenbum said.