Annexes to COM(2008)610 - Application of Directive 2003/86/EC on the right to family reunification - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)610 - Application of Directive 2003/86/EC on the right to family reunification. |
|---|---|
| document | COM(2008)610  |
| date | October 8, 2008 |
- Horizontal clause on relevant consideration (Article 17)
This obligation to take due account of the nature and solidity of the person’s family relationships, the duration of his/her residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin and thereby apply a case-be-case approach was also specifically recalled by the ECJ in C-540/03. In accordance with that ruling, mere reference to Article 8 ECHRC does not seem to constitute adequate implementation of Article 17, which could be problematic for AT, LU, SK.
The general problem in transposition appears to be that national requirements for family reunification are applied very strictly, and that the authorities are not obliged to assess the application on an individual basis. This strict application of the rules is evident in NL with regard to the age limit, income requirement, requirement to pass an integration exam abroad, three-month period for refugees and the requirement of an authorisation for temporary stay.
- Redress (Article 18)
When it comes to the right to mount a legal challenge, Member States’ rules vary considerably on the material and personal scope of such judicial reviews.
The sponsor cannot be a party to the administrative and judicial proceedings in AT, NL and SI, whereas in DE, EL, FI, LV, LT both family members (as applicants for family reunification) and sponsors are entitled to judicial review. Regarding what can be challenged within the judicial review, CZ, DE, HU and LV have excluded visas and AT quotas. Appeal procedures exist in all Member States, in most instances within the ordinary court system, but some Member States have specialist tribunals (BE, SE). The review arrangements also vary: LV, LU, PL and SK review only legality, whereas both the facts and the law are reviewed in IT, HU, LT, PT and ES. In NL facts are only reviewed marginally by the courts. Legal aid in family reunification cases is provided by most Member States, except CY, DE, EL, IT, LV, PL and SK.
This redress provision must be applied in conformity with the right to an effective remedy before a tribunal as set out in Article 47 of the Charter of Fundamental Rights which reflects ECJ case law on this.
4.5. Rights
4.5.1. Entry and residence
- Visa facilitation (Article 13(1))
As soon as a family reunification application has been accepted, Member States must authorise the entry of the family members and grant them every facility for obtaining the requisite visas.
Implementation of this mandatory provision creates difficulties for some Member States, on a legal and practical basis.
Some Member States (BE, BG, LU, NL, SI) did not implement this specific provision in national legislation, and one (NL) has rules running counter to visa facilitation by requiring a double-check on whether the family reunification requirements are met, first when applying for a visa to enter and then again when applying for a residence permit. Furthermore, an additional condition not provided for in the Directive is introduced, prescribing that the visa application can only be filed in the country of origin or of permanent residence.
- Duration of residence (Article 13(2) and (3))
Member States must grant family members a first residence permit of at least one year’s duration. It is also stipulated that the duration of residence permits granted to family members shall in principle not go beyond the date of expiry of the sponsor’s residence permit.
When implementing these provisions a problem may arise if the validity of the sponsor’s residence permit is less than one year when the family member’s residence permit is issued. Article 13(3) then seems to prevail over 13(2). Member States (EL, FI, CZ) that always align the duration of the family member’s residence permit with that of the sponsor only impede the Directive if applying this rule in bad faith so as to restrict the family member’s residence (i.e.: if the sponsor’s residence permit is already in the process of renewal.)
- Autonomous residence permit (Article 15)
At the latest after five years of lawful residence an autonomous residence permit must be granted for the spouse or unmarried partner and for a child who has reached majority.
Most Member States (20) use this maximum five years[27]. BE, CZ, NL, FR only require three years of prior residence. In HU the five years count from the first issue of a residence permit, which can be problematic if the family member was first holding a visa before obtaining a residence permit. FI implemented the provision as a “may” clause in a way not respecting the five-year rule. RO implemented this provision too restrictively, by including a closed list[28] defining when the autonomous residence permit should be issued.
If the family relationship breaks down Member States may limit the granting of the autonomous residence permit for the spouse or unmarried partner. 11 Member States do this. However, 16 Member States also use the optional provision of granting an autonomous residence permit in the event of widowhood, divorce or separation, sometimes stating established close ties or humanitarian grounds as the justification.
The mandatory provision to lay down the rules to ensure the granting of an autonomous residence permit was impeded by seven Member States (BU, EE, FI, HU, IT, RO, PL, SI) either by not laying down any rules[29] in this regard or by implementing the provisions in a way which gives the authorities an inadmissible amount of leeway.
4.5.2. Access to education and employment (Article 14)
A relative form of equal treatment is to be provided for the family member: if the sponsor does not have access to employment nor, under the Directive does the family member. Some Member States (AT, NL, MT, DE) have limited the access of family members to exactly what is required by the Directive, resulting in three different situations depending on the sponsor’s status: no access at all, access only with a work permit (with or without a labour market test) or free access to the labour market. Others impose no restrictions on labour market access (EE, FI, FR, LT, LU).
Most Member States require a work permit which can in certain, albeit limited, cases impede the Directive (e.g. if the sponsor does not need one).
On the basis of the optional clause in paragraph (2) Member States can limit labour market access by making it conditional on a labour market test during the first 12 months. This is used by seven Member States (AT, CY, DE, EL, HU, SI, SK).
In three of these (DE, HU, SI), use of the exception exceeds what the Directive permits, since national law allows the complete exclusion of certain categories of family members from employment during the first year after admission, whilst the Directive allows exclusion only on the basis of a labour market test.
Generally, it appears that transposition of the Directive has resulted in national legislation giving admitted family members easier access to employment.
No particular problem was reported regarding access to education, except that BE and RO did not explicitly implement the provision but applied it in practice; in RO through its general principle of law on equality and non-discrimination.
4.6. Family reunification of refugees
Chapter V of the Directive refers to a series of derogations creating more favourable provisions for the family reunification of refugees so as to take their particular situation into account.
There is a horizontal problem with two Member States (CY, MT) as they have not introduced these more favourable provisions and the latter do not distinguish between refugees and other third-country nationals. Specific problems regarding other Member States and concerning more favourable provisions for refugees are highlighted throughout the report.
5. CONCLUSIONS
This report analyses national legalisation implementing the Directive 2003/86/EC on the right to family reunification. This is the first legislative instrument on legal migration at EU level and, as a result several Member States[30] for the first time have a detailed set of rules on the right to family reunification in their national legislation.
The report revealed a few cross-cutting issues of incorrect transposition or misapplication of the Directive which need to be highlighted, such as the provisions on visa facilitation, granting autonomous residence permits, taking into account the best interest of the child, legal redress and more favourable provisions for the family reunification of refugees. The Commission will examine all cases where application problems were identified and ensure that the provisions are correctly applied, in particular in conformity with fundamental rights such as respect for family life, the rights of the child and the right to an effective remedy. This will imply launching, during 2009, the necessary procedural steps for non-compliance, where appropriate in accordance with Article 226, in particular in cases where there are clear differences in interpretation of Community law between the Member States and the European Commission.
Furthermore the report showed that the impact of the Directive on harmonisation in the field of family reunification remains limited. The low-level binding character of the Directive leaves Member States much discretion and in some Member States the results has even been lowering the standards when applying “ may ” provisions of the Directive on certain requirements for the exercise of the right to family reunification in a too broad or excessive way. In this respect the possible waiting period, the minimum age of the sponsor, the income requirement and the possible integration measures should be mentioned in particular. The Commission will take forward these issues through all appropriate means, including the policy follow up that the Commission will give to the present report. In line with the Communication of 17 June 2008 as well as the upcoming European Pact on Immigration which identified family reunification as the key to successful immigration and an area where the European Union needs to develop further its policies, the Commission intends to launch a wider consultation – in the form of a Green Paper – on the future of the family reunification regime.
[1] In this report “Member States” means the Member States bound by the Directive.
[2] COM(2008) 359.
[3] Studies conducted by the Odysseus network (2007) and by the European Migration Network (2008).
[4] Centre for Migration Law, Nijmegen 2007, and a study requested by the EP, March 2008, C. Adam and A. Devillard, IOM. Other studies such as the first report published in June 2008 by the EU Agency for Fundamental Rights on Homophobia and Discrimination on grounds of sexual orientation refer to specific issues regarding family reunification.
[5] RO and BG had to implement the Directive’s provisions as from their accession to the EU.
[6] C-57/07, judgment of 6.12.2007, Commission v Luxembourg .
[7] For Luxembourg, the draft legislation was taken as a basis for evaluation.
[8] Paras 60, 62, 101 and 105 of the judgment.
[9] Para 60 of the judgment.
[10] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
[11] However, the Directive should not be interpreted as obliging Member States to deny beneficiaries of temporary or subsidiary protection the right to family reunification. Council Directive 2001/55/EC explicitly entitles beneficiaries of temporary protection to reunite with their family members.
[12] See Policy Plan on Asylum, adopted on 17 June 2008 - COM(2008) 360.
[13] C-540/03 (para 60).
[14] Para 73.
[15] BG, CZ, HU, IT, LT, LU, NL, PT, RO, SI, SK, SE, ES.
[16] AT, BE, BG, CY, CZ, EE, ES, DE, EL, LV, LT, MT, PL, RO, SI.
[17] Recital 5 of the Directive states that Member States should give effect to the Directive’s provisions without discrimination, inter alia on the basis of age.
[18] When the family relationship arose after the sponsor’s entry.
[19] Refugees are required to fulfil integration conditions for family formation in the NL.
[20] After arrival in NL family members are also subject to integration requirements.
[21] Article 12 of the European Convention on the Legal Status of Migrant Workers of 24 November 1977 provides for a maximum waiting period of just 12 months. The scope of application of this Convention is, however, limited because so far it has been ratified by only six Member States (FR, IT, NL, PT, ES, SE) and four third-countries (Albania, Moldova, Turkey, Ukraine).
[22] Paras 100 and 101 of C-540/03.
[23] EE uses a criterion ( “a threat to the interest of other persons ) that is even wider than that admissible undethe interest of other persons”) that is even wider than that admissible under the Directive.
[24] In NL an application for a visa for family reunification costs €830, the integration test €350. Issuance of a residence permit for a temporary stay costs €188.
[25] EL legislation only talks about family ties which are to be taken into account by the national authorities.
[26] The principle that the best interests of the child must be of primary consideration is enshrined in Article 24 of the Charter of Fundamental Rights and also in the UN Convention on the Rights of the Child.
[27] Both AT and NL demand an additional compliance with integration requirements.
[28] Namely when the minor becomes an adult (18 years old); if the sponsor died (for any other person); or in cases of divorce (for the husband/wife).
[29] EE
[30] EL, CY, MT, RO.