CONDITIONS FOR FAMILY
REUNIFICATION UNDER STRAIN
A comparative study in nine EU member states
Yves Pascouau in collaboration with Henri Labayle
King Baudouin Foundation
European Policy Centre
Odysseus Network
November 2011
In strategic partnership with the King Baudouin Foundation
and the Compagnia di San Paolo
CONDITIONS FOR FAMILY
REUNIFICATION UNDER STRAIN
A comparative study in nine EU member states
Yves Pascouau in collaboration with Henri Labayle
King Baudouin Foundation
European Policy Centre
Odysseus Network
November 2011
ISSN-1782-2424
EUROPEAN MIGRATION AND DIVERSITY
PROGRAMME
AUTHORS
Yves Pascouau, Senior Policy Analyst, European Policy Centre
GENERAL
INTRODUCTION
Henri Labayle, Prof. at the University of Pau (France)
Migration policies among EU member states have undergone major changes in recent decades,
NATIONAL
Belgium impact onProf.
Sylvie
Sarolea,
Catholic
University of Louvain
which
have had a significant
family
migration
rules
and policies.
EXPERTS
France
Prof. Henri Labayle, University of Pau
Germany
Prof. Dr.change.
Kay Hailbronner,
University
Firstly, the 1970s oil crisis
triggered tremendous
It drove member
statesoftoKonstanz
adopt restrictive
Poland
Prof.
Barbara
Mikolajczyk,
University
labour migration policies. As a consequence, family reunification became oneofofSilesia
the main ways
Portugal states. Figures
Prof. in
Nuno
Piçarra
and Prof.confirm
Francisco
Pereira
Coutinho,
to legally enter EU member
some
EU countries
that
the majority
of
Nova
University
of
Lisbon
migrants entered for the purpose of family reunification.
Slovenia
Neza Kogovsek Salamon, ll.m., Peace Institute, Institute
for
Contemporary
Socialinand
Political Studies,
Ljubljana
Meanwhile, the issue of family reunification
has been gaining
importance
at European
level.
Spain
Prof.
Cristina
Gortazar
Rotaeche,
Comillas
Pontifical
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
University
Madrid
right to family life represented a first step.
On the of
basis
of Article 8 of the European Convention
Sweden
Prof.
Orjan
Edstrom
Dr. Eva
Nilsson,
Umeå More
on Human rights, the Court has framed and limited memberand
states'
room
for manoeuvre.
University,
Susanne
Riekkola,
Migration
Board
precisely, the right to family life has been used as a strong and successful argument against
Dr. Tineke
Strik, been
Radboud
University
Nijmegen,
expulsion proceduresThe
inNetherlands
member states.
It has also
successful
in cases
regarding the
Centre
for
Migration
Law
admission of third country nationals.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
CONTRIBUTION
Prof. Phillipe
Bruycker,
Free University
of field
Brussels
of
Amsterdam, the European
Unionde
(EU)
gained competences
in the
of migration issues. On
TO
THE
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
QUESTIONNAIRE
determines
the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
EDITING
Andrew Williams,
European
Policyupon
Centre
status
– have been embedded
in EU rules,
which impact
national rules and practices.
AND
Sheena McLoughlin, European Policy Centre
LAYOUT the novelty
Myriane
Bartholomé,
European
Policy Centre
However,
introduced
by the Treaty
of Amsterdam
goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
CO-EDITORS
Director,
King Baudouin
not
to be consideredFrançoise
as a toolPissart,
to manage
migration
but rather Foundation
as a means of enhancing the
Fabrice
de
Kerchove,
Project
Manager,
Baudouin
Foundation
integration of migrants legally residing in their host society. King
Secondly,
the European
Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
The authors
would
likeand
to address
thanks
to Sheena
McLoughlin
for her
invaluable
Family
migration
rules
policies special
have been
constantly
modified
for almost
40 years
now.
input
and
help
in
the
realisation
of
this
report.
They
also
want
to
thank
Myriane
Bartholomé
On the one hand, this is due to the modification of migration policies at national and European
and Andrew
Williams
forthe
their
work
editing
and publishing
this report.
level,
and on the
other, to
impact
of in
family
reunification
on migration
flows and most probably
vice versa.
This report
was commissioned
thethat
Kingis Baudouin
It is also Ever-evolving
available in
Family
reunification
is a sensitiveby
issue
subject to Foundation.
changing landscapes.
French
and
Dutch
and
can
be
downloaded
from
www.kbs-frb.be
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
32
GENERAL INTRODUCTION
GENERAL INTRO
Migration policies among EU member states have undergone major changes in recent
decades,
Migration
policies am
which have had a significant impact on family migration rules and policies.
which have had a sig
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt
restrictive
Firstly,
the 1970s oil c
labour migration policies. As a consequence, family reunification became one of the
mainmigration
ways poli
labour
to legally enter EU member states. Figures in some EU countries confirm that the
of EU m
to majority
legally enter
migrants entered for the purpose of family reunification.
migrants entered for t
Meanwhile, the issue of family reunification has been gaining in importance at European
level.the issue
Meanwhile,
The growing impact of the European Court of Human Rights and its jurisprudence The
regarding
theimpact o
growing
right to family life represented a first step. On the basis of Article 8 of the European
Convention
right
to family life rep
on Human rights, the Court has framed and limited member states' room for manoeuvre.
More
on Human
rights, the
precisely, the right to family life has been used as a strong and successful argument
against
precisely,
the right to
expulsion procedures in member states. It has also been successful in cases regarding
expulsion the
procedure
admission of third country nationals.
admission of third co
A second major step occurred at European level after 1999. With the entry into forceAof
the Treaty
second
major step o
of Amsterdam, the European Union (EU) gained competences in the field of migration
issues. On the Eu
of Amsterdam,
this basis, it adopted a Directive on the right to family reunification. This Directivethis
(2003/86/EC)
basis, it adopted
determines the conditions for exercising the right to family reunification for third country
nationals
determines
the condit
residing lawfully on the territory of an EU member state. Since then, several rules residing
related to
the on t
lawfully
conditions for exercising the right to family reunification – as well as rights deriving
from this
conditions
for exerci
status – have been embedded in EU rules, which impact upon national rules and practices.
status – have been em
However, the novelty introduced by the Treaty of Amsterdam goes much further
than the
However,
the novelt
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly,
the
rootsadoption
of
'technical'
o
the Directive are closely linked to the integration of migrants. In this view, the Directive
should
the Directive are clos
not to be considered as a tool to manage migration but rather as a means of enhancing
not to be the
considered
integration of migrants legally residing in their host society. Secondly, the European
Court of migran
integration
Justice's interpretation of the Directive has played a strong role in giving it a crucialJustice's
dimension:
it
interpretation
has recognised the existence of the right to family reunification and firmly delineated
member
has recognised the e
states' margins of manoeuvre.
states' margins of ma
Family migration rules and policies have been constantly modified for almost 40
yearsmigration
now.
Family
rule
On the one hand, this is due to the modification of migration policies at national and
European
On the
one hand, thi
level, and on the other, to the impact of family reunification on migration flows and most
level,probably
and on the othe
vice versa.
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Family
Ever-evolving
reunification
policies and modifications have been very important in the last couple of years at policies
both national
and modifica
and European level and explain why a new study on conditions for family reunification
is timely level a
and European
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
(I). However, such a s
3
3
3
I. ChangingINTRODUCTION
landscapes
GENERAL
The landscape
within
which
family reunification
policies and
ruleschanges
are evolving
is subject
to
Migration
policies
among
EU member
states have undergone
major
in recent
decades,
several
modifications
that
occur
either
at
national
(A)
or
European
level
(B).
It
is
therefore
which have had a significant impact on family migration rules and policies.
important to take a closer look to gain an understanding of the reasons and context within
which the
this1970s
studyoil
is crisis
takingtriggered
place. tremendous change. It drove member states to adopt restrictive
Firstly,
labour migration policies. As a consequence, family reunification became one of the main ways
A. legally
In EU member
to
enter EUstates
member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
Two main issues deserve attention when looking at modifications that have intervened in
member states'
policies.
Meanwhile,
the issue
of family reunification has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
1. The
of the Directive
right
to transposition
family life represented
a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
The first relates
to the
impactlife
of Directive
on EUand
countries.
Indeed,
EU member
precisely,
the right
to family
has been 2003/86/EC
used as a strong
successful
argument
against
states
are
obliged
to
transpose
the
Directive
into
their
national
legal
systems
beforethea
expulsion procedures in member states. It has also been successful in cases regarding
1
This means that they must, when required, adapt their rules to
deadline set
by thecountry
Directive.
admission
of third
nationals.
the requirements set out in the Directive. In this regard, and notwithstanding often broad
wording,
the Directive
has had
a significant
in the
member
states.
A
second major
step occurred
at European
levelimpact
after 1999.
With
the entry
into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
It has,
onit the
one ahand,
obliged
some
to adopt
new rules
the field
of family
this
basis,
adopted
Directive
on the
rightstates
to family
reunification.
This in
Directive
(2003/86/EC)
reunification.
This
has
been
the
case,
for
instance,
in
countries
where
no
specific
legislation
determines the conditions for exercising the right to family reunification for third country nationals
was previously
in thisofmatter.
the other
states
have to
taken
residing
lawfullyapplicable
on the territory
an EU On
member
state.hand,
Since some
then, member
several rules
related
the
advantage
of
their
duty
to
implement
the
directive
to
modify
existing
rules,
sometimes
conditions for exercising the right to family reunification – as well as rights deriving from in
thisa
more restrictive
way.
In the end,
therules,
obligation
transpose
law Directive
status
– have been
embedded
in EU
whichtoimpact
uponinto
national
rules and2003/86/EC
practices. has
served as a very strong lever to modify national rules and to a certain extent national policies
in this regard.
However,
the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
All Directive
obligations
fromtothe
of the Directive
are the
monitored
the
the
are deriving
closely linked
the transposition
integration of migrants.
In this view,
Directive by
should
European
Commission.
The
Commission
is
in
charge
of
assessing
whether
member
states
not to be considered as a tool to manage migration but rather as a means of enhancing the
have transposed
the Directive
accurately
and on
If not,
the Commission
is entitled
to
integration
of migrants
legally residing
in their
hosttime.
society.
Secondly,
the European
Court of
begin
infringement
procedures
at
the
European
Court
of
Justice
aimed
at
sanctioning
any
lack
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
of transposition
or existence
incorrect of
transposition.
has
recognised the
the right to family reunification and firmly delineated member
states' margins of manoeuvre.
However, the duty to transpose the Directive is not the only part of the landscape that is
changing
at national
Anotherhave
has emerged
in somemodified
memberfor
states,
in 40
thatyears
therenow.
is a
Family
migration
ruleslevel.
and policies
been constantly
almost
growing
tendency
to adopt
policies regarding
family
reunification.
On
the one
hand, this
is due restrictive
to the modification
of migration
policies
at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
1. According to Article 20 of Directive 2003/86/EC "Member States shall bring into force the laws, regulations and
policies
and modifications
have been
verywith
important
in thebylast
at 2005.
both They
national
administrative
provisions necessary
to comply
this Directive
not couple
later thanof3 years
October
shall
andforthwith
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
inform the Commission thereof". It should be noted that the United Kingdom, Ireland and Denmarktimely
are not
participatingsuch
in thisaDirective
and areto
notbe
bound
by or subject
to itsits
application.
(I). However,
study needs
delineated
(II) and
methodology defined (III).
34
4
2. Restrictive national policies
GENERAL INTRO
The underlying idea behind restrictive policies regarding family reunification is based on a
two-pronged approach. Firstly, family reunification is often significant in termsMigration
of numbers
policies am
compared to other types of migration. Secondly, because family reunification iswhich
protected
haveby
had a sig
fundamental rights, member states consider themselves to be bound by the obligation to
admit the family members of third country nationals with very little room for manoeuvre.
Firstly, theThe
1970s oil c
discourse developed in France by President Nicolas Sarkozy regarding 'wanted'
and
labour migration
poli
'unwanted' migration is illustrative here.
to legally enter EU m
migrants entered for t
To make family migration more difficult, member states are thus tempted to modify or have
already modified rules governing the conditions requested for family reunification.
Thethe issue
Meanwhile,
debate that took place in Belgium – which led to the adoption of a brand new The
lawgrowing
– is alsoimpact o
evocative of such a trend.
right to family life rep
on Human rights, the
National policies aimed at making family reunification more difficult have been
echoed
precisely,
the right to
at EU level. Under the French EU Presidency at the end of 2008, heads expulsion
of state and
procedure
government adopted the European Pact on Immigration and Asylum. This document
sets out
admission
of third co
orientations for the years to come in the field and addresses, among others, the issue of
family reunification. It indicates that the European Council has agreed to regulate
family
A second
major step o
reunification more effectively. In this regard, the Council invites member states
"to
take the Eu
of Amsterdam,
into consideration in its national legislation, (...), its own reception capacities this
and basis,
families'
it adopted
capacity to integrate, as evaluated by their resources and accommodation indetermines
the country
the condit
of destination and, for example, their knowledge of that country's language". residing lawfully on t
conditions for exerci
As described more precisely below, the objectives defined by the heads status
of state
andbeen em
– have
government in the European Pact are quite clear. They seek to better regulate, i.e. limit, family
reunification by modifying national rules regarding the conditions to be fulfilled,
namely
However,
the novelt
resources, accommodation and language knowledge.
'technical' adoption o
the Directive are clos
not to be considered
integration of migran
All of these movements shed light on an interesting fact. Member states are Justice's
fuellinginterpretation
and
shaping policy at EU level in a constant bottom-up movement.
has recognised the e
states' margins of ma
The first step is indicated by the adoption of Directive 2003/86/EC. Notwithstanding its
European nature, this rule is deeply rooted in national constraints. Indeed, it was
adopted
by
Family
migration
rule
national ministers on a unanimity basis. As a consequence, member states have On
secured
their
the one hand, thi
national policies and refrained from adopting rules that would limit theirlevel,
margins
and onofthe othe
manoeuvre. This derives from the content of Directive 2003/86/EC, which is largely
based
vice versa. on
optional and non-binding rules.
3. The bottom-up approach or the impact of national policies at EU level
Family reunification
Secondly, and whenever Directive 2003/86/EC has obliged some member states
to adapt
policies
andormodifica
modify their rules, governments are still influencing the debate. The involvementand
of the
heads
European level a
of state and government – the highest EU political level – is a clear demonstration
such ansuch a s
(I). of
However,
5
3
5
intervention. INTRODUCTION
The content of political
GENERAL
orientations, i.e. the will to better regulate family
migration by using levers related to conditions for family reunification, is also a sign of EU
countries' commitment to strengthening existing rules.
Migration policies among EU member states have undergone major changes in recent decades,
To sum
up,had
thea field
of family
reunification
is subject
to and
a changing
which
have
significant
impact
on family migration
rules
policies. process fuelled by
member states. At national level, some countries are steering towards restrictive policies. In
this regard,
the oil
climate
somewhat
'heavy' change.
regarding
the issue
of family
and
Firstly,
the 1970s
crisis is
triggered
tremendous
It drove
member
states reunification
to adopt restrictive
limiting
this phenomenon
often the mainfamily
goal.reunification
This trend isbecame
echoedone
at EU
level,
where
labour
migration
policies. As isa consequence,
of the
main
ways
thelegally
European
is calling
more effective
regulation
of confirm
family reunification.
to
enterCouncil
EU member
states.forFigures
in some EU
countries
that the majority of
migrants entered for the purpose of family reunification.
B. At EU level
Meanwhile,
the issue of family reunification has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
Majortochanges
arerepresented
also occurring
EU On
level.
EU level,
the 8changes
concern,Convention
first of all,
right
family life
a firstatstep.
theAtbasis
of Article
of the European
the
whole
framework.
The
adoption
of
the
Lisbon
Treaty
brought
with
it
tremendous
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
modifications
that will
certainly
impact
upon
family
reunification
(1).against
Then,
precisely,
the right
to family
life has
been
usedthe
asquestion
a strong of
and
successful
argument
the
development
of
promising
jurisprudence
by
the
European
Court
of
Justice
is
also
an
expulsion procedures in member states. It has also been successful in cases regarding the
element
that
is
shaping
in
a
different
manner
the
policy
environment
of
family
migration
(2).
admission of third country nationals.
Both changes have occurred recently, i.e. end 2009 and 2010, and are important to
underline
as they
impact
in aatvery
important
upon
thethe
field
of into
family
reunification.
A
second major
step
occurred
European
levelmanner
after 1999.
With
entry
force
of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
1. Changes
introduced
by the adoption
of the
Lisbon
Treaty
this
basis, it adopted
a Directive
on the right
to family
reunification.
This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
Among the
numerous
by the state.
Lisbon
Treaty,
which
entered
into force
in
residing
lawfully
on thechanges
territory introduced
of an EU member
Since
then,
several
rules related
to the
December
2009,
two
are
of
significant
importance
regarding
family
reunification.
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
The first one concerns modification of the decision-making process. From unanimity, the
issue of family
reunification,
as well
as other
related to goes
legal much
migration,
now
come
However,
the novelty
introduced
by the
Treatyissues
of Amsterdam
further
than
the
under
the
co-decision
procedure.
This
means,
on
the
one
hand,
that
decisions
within
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the rootsthe
of
Council
of Ministers
are linked
taken on
the integration
basis of majority.
As a consequence,
power to
veto
the
Directive
are closely
to the
of migrants.
In this view, thethe
Directive
should
a decision
disappears.asHence,
a decision
to modify but
Directive
may
be adopted
not
to be considered
a tool to
manage migration
rather 2003/86/EC
as a means of
enhancing
the
even
if
a
small
group
of
member
states
is
opposed
to
it.
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
On the
other hand,
and more of
crucially,
thetoEuropean
Parliament becomes
co-legislator.
In this
has
recognised
the existence
the right
family reunification
and firmlya delineated
member
view,
the
Parliament
may
exercise
a
crucial
role.
It
may
go
in
the
direction
of
some
Member
states' margins of manoeuvre.
States and push for the adoption of new rules, even in a restrictive way. Or, it may adopt a
'migrant-oriented'
position
opposes
restrictions
onmodified
the right for
to family
In
Family
migration rules
and that
policies
haveany
been
constantly
almostreunification.
40 years now.
either
case,
the
Parliament
is
a
new
player
in
this
game
and
its
role
should
be
followed
closely.
On the one hand, this is due to the modification of migration policies at national and European
The redistribution
of power
and the
participation
the
European
Parliament
level,
and on the other,
to the impact
of full
family
reunificationofon
migration
flows
and mostpresent
probablya
new
landscape
which
may
influence
whether
or
not
rules
on
family
reunification
can be
vice versa.
modified. The scheduled publication of a Green Paper in November 2011 on family
reunification
and theis contributions
of European
Parliament
representatives/groups
will help
Family
reunification
a sensitive issue
that is subject
to changing
landscapes. Ever-evolving
to
determine
where
the
institution
stands
with
regard
to
protecting
the
right
to
family
policies and modifications have been very important in the last couple of years at both national
reunification
in
a
context
where
some
delegations,
such
as
the
Netherlands,
would
like
to
and European level and explain why a new study on conditions for family reunification is timely
restrict,
or
at
least
frame
in
a
tougher
way,
rules
enshrined
in
Directive
2003/86/EC.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
36
6
The second modification introduced by the Lisbon Treaty concerns the central place
awarded INTRO
GENERAL
to human rights. The treaty gives, on the one hand, legal force to the Charter of Fundamental
Rights of the European Union and opens the way, on the other hand, to the accession of the
European Union to the European Convention of Human Rights.
Migration policies am
which have had a sig
The impact of human rights2 on the family and family life is threefold. It frames the action of
the EU institutions in adopting rules regarding family reunification. In this regard,
EU oil c
Firstly,the
the 1970s
legislator should not adopt rules that run counter to respecting the right to family life.
Secondly,
labour migration poli
the implementation of EU rules in the member states should also be compatibletowith
human
legally
enter EU m
rights requirements. Finally, the legally-binding effect awarded to the Charter constitutes
new for t
migrants entered
ground upon which the European Court of Justice will be able to build protective jurisprudence.
This is relevant at a time when the Treaty of Lisbon gives full competence to European
Court ofthe issue
Meanwhile,
Justice to interpret rules in the field of immigration and asylum.
The growing impact o
right to family life rep
Furthermore, the opportunity for the European Union to access the European
on Charter
Human of
rights, the
Human Rights may act as a lever to uphold the threshold of the commitment
to
respect
precisely,
the right to
human rights. The legislator and the European Court of Justice will be invited
to act procedure
in
expulsion
accordance and in cooperation with the Court of Human Rights in Strasbourg.
This
will
admission of third co
certainly produce an unprecedented dynamic in a field where fundamental rights are central,
not to say crucial.
A second major step o
of Amsterdam, the Eu
To summarise, the entry into force of the Lisbon Treaty in December 2009 modified
the field
this basis,
it adopted
of family reunification either in institutional terms, with regard to the decision-making
determines the condit
process, or in substantive terms, as fundamental rights now constitute a basis on
whichlawfully
EU
residing
on t
action is based, implemented and controlled.
conditions for exerci
status – have been em
2. Impact of ECJ's jurisprudence
However, the novelt
'technical' adoption o
Another significant element that has modified the whole field of family the
reunification
Directive are clos
concerns the intervention of the European Court of Justice. It has given two interpretations
of
not to be considered
Directive 2003/86/EC which have considerably framed member states' actions and
therefore
integration of migran
modified the landscape.3
Justice's interpretation
has recognised the e
states' margins of ma
Family migration rule
2. Article 9 of the Charter of Fundamental Rights of the European Union: Right to marry and right to found a family
On the one hand, thi
"The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing
level, and on the othe
the exercise of these rights".
Article 33 of the Charter of Fundamental Rights of the European Union: Family and professional lifevice versa.
"1. The family shall enjoy legal, economic and social protection.
2. To reconcile family and professional life, everyone shall have the right to protection fromFamily
dismissal
for a
reunification
reason connected with maternity and the right to paid maternity leave and to parental leave following the birth
policies and modifica
or adoption of a child."
European
3. ECJ, 27 June 2006, case C-540/03, European Parliament v. Council of the European Union; ECJand
4 March
2010, level a
(I). However, such a s
Rhimou Chakroun, Case C-57/08.
7
3
7
In the first case
law, the Court has clearly defined the content of Directive 2003/86/EC and
GENERAL
INTRODUCTION
delineated the margins of manoeuvre of the member states. As regards the content, the Court
has reminded the member states that they have adopted a Directive on the right to family
reunification,
which
means
that as states
soon have
as applicants
family
reunification
the
Migration
policies
among
EU member
undergonefor
major
changes
in recent fulfil
decades,
4
conditions
defined
by
national
law,
they
benefit
from
a
right
to
family
reunification.
which have had a significant impact on family migration rules and policies.
Regarding
the margins
of manoeuvre
of EU
countries,
themember
Court states
has drawn
very
Firstly,
the 1970s
oil crisis triggered
tremendous
change.
It drove
to adoptsome
restrictive
important
lines
relating
to
the
obligations
of
member
states,
on
the
one
hand,
to
respect
the
labour migration policies. As a consequence, family reunification became one of the main ways
best
interests
of
the
child
and,
on
the
other
hand,
to
proceed
to
an
individual
examination
to legally enter EU member states. Figures in some EU countries confirm that the majority of
of the application,
into account
links and the length of the stay in the member
migrants
entered for taking
the purpose
of familyfamily
reunification.
state and/or in the country of origin.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
The growing
second case
law
development
first round
jurisprudence.
Firstly,
the Court
The
impact
of isthea European
Courtofofthis
Human
Rightsof
and
its jurisprudence
regarding
the
of
Justice
has
applied
the
obligation
to
individualise
the
examination
of
the
application
to the
right to family life represented a first step. On the basis of Article 8 of the European Convention
condition
sufficient
resources.
As we
see below,
authorities
are no longer
on
Human of
rights,
the Court
has framed
andwill
limited
membernational
states' room
for manoeuvre.
More
allowed
to
reject
an
application
for
family
on
the
sole
grounds
that
the
applicant
not
precisely, the right to family life has been used as a strong and successful argumentdoes
against
earn
a
fixed
amount
of
money
defined
by
the
law.
A
minimum
income
constitutes
a
reference
expulsion procedures in member states. It has also been successful in cases regarding the
for the examination
of thenationals.
application and national authorities need to assess whether the
admission
of third country
income is "sufficient" to maintain the needs of the sponsor and the family.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
Secondly,
and the
more
importantly,
Court
of Justice
has defined
objective
of theissues.
Directive
of
Amsterdam,
European
Unionthe
(EU)
gained
competences
in thean
field
of migration
On
which
was
not
self-evident.
Indeed,
it
has
ruled
that
the
Directive's
objective
is
to
"promote
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
family reunification".
This
has a tremendous
effect reunification
as the Directive's
provisions
and
determines
the conditions
for exercising
the right to family
for third country
nationals
implementing
rules
should
now
be
interpreted
in
the
light
of
this
objective.
Hence,
residing lawfully on the territory of an EU member state. Since then, several rules related to the
implementing
rules aimed
limiting
the right
to family–reunification
may deriving
be considered
to
conditions
for exercising
theatright
to family
reunification
as well as rights
from this
run
counter
to
the
right
to
family
reunification,
and
their
compatibility
with
the
objective
of
status – have been embedded in EU rules, which impact upon national rules and practices.
the directive may be questioned if not challenged.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
The impact
of the of
jurisprudence
of Itthe
Court aof'new'
Justice
will be
analysed
in detail
below.
'technical'
adoption
common rules.
proposes
reading
of the
issue. Firstly,
the roots
of
However,
the
enrolment
of
the
European
judge
has
clearly
modified
the
field
within
which
the Directive are closely linked to the integration of migrants. In this view, the Directive should
rulestorelated
to familyasreunification
are operating.
not
be considered
a tool to manage
migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
Significant
changes are
redefining
landscape
of family
reunification.
At EU level,it
Justice's
interpretation
of the
Directivethe
haswhole
played
a strong role
in giving
it a crucial dimension:
the
interpretation
of
the
Court
of
Justice
is
one
element
and
the
adoption
of
themember
Lisbon
has recognised the existence of the right to family reunification and firmly delineated
Treatymargins
another.
national level, the willingness of some states to modify rules regarding
states'
of At
manoeuvre.
family reunification in a more restrictive way and the adoption of the European Pact are
important
trends rules
in theand
sense
of a new
of rulesmodified
regardingforfamily
reunification.
In
Family
migration
policies
haveperception
been constantly
almost
40 years now.
thisthe
regard,
the modification
Belgian
rules inofMay
2011 policies
is a relevant
example.
On
one hand,
this is due toofthe
modification
migration
at national
and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies
and modifications have been very important in the last couple of years at both national
4. The Court stated "the Directive imposes precise positive obligations, with corresponding clearly defined individual
andrights,
European
andStates,
explain
a new
study
oncases
conditions
forby
family
reunification
is timely
on the level
Member
sincewhy
it requires
them,
in the
determined
the Directive,
to authorise
family
(I). However,
a study
needs
tosponsor's
be delineated
(II) and
its left
methodology
defined (III).
reunificationsuch
of certain
members
of the
family, without
being
a margin of appreciation".
Case C-540/03.
38
8
This changing landscape justifies returning to the issue of the conditions
for family INTRO
GENERAL
reunification to see whether national rules have changed recently and whether forthcoming
or existing rules are (still) compatible with new developments and interpretations.
II. Defining the scope of the study
Migration policies am
which have had a sig
Firstly, the 1970s oil c
labour
migration poli
Family reunification covers various situations. This study targets a specific category
of persons
to
legally
enter EU m
entitled to family reunification (A). It does not cover all of the EU's member states but only
migrants
entered
for t
some of them, selected on the basis of different criteria (B).
Meanwhile, the issue
The growing impact o
to family
Family reunification is an intricate domain, as the rules applicable are different right
according
to life rep
on Human rights, the
the status of the sponsor. Three main categories can be identified.
precisely, the right to
procedure
The first category concerns family reunification of nationals of an EU state with expulsion
third country
admission of third co
nationals. Rules applicable in this situation fall within the remit of member states.
A. Personal scope
A second
major step o
The second category concerns family reunification of citizens of an EU member
state who
have exercised their freedom of movement within the EU. For instance,of Amsterdam,
a Spanish the Eu
this basis, itto
adopted
citizen living in Germany who wishes his/her spouse of EU or third-country nationality
determines
the condit
join him/her. This situation falls within the scope of Directive 2004/38/EC.
It should
residing
lawfully
be outlined that rules applicable in this regard are very much favourable to
people
as on t
they simplify the procedure and limit member states' margins of manoeuvre. conditions for exerci
status – have been em
The third category concerns family reunification of third country nationals legally
However, the
residing in a member state who wishes his/her family of third-country nationality
to novelt
adoption o
join him/her. This is the case, for instance, of a Senegalese citizen living in'technical'
France who
wishes his/her family members to join him/her. This situation is covered the
by Directive
Directiveare clos
not to be considered
2003/86/EC.
integration of migran
Justice's
interpretation
This study covers the third category i.e. family reunification of third country
nationals
has recognised the e
legally residing in one of the EU's member states.
states' margins of ma
The reasons for such a choice are three-fold. On the one hand, family reunification of
Family migration rule
third country nationals legally residing into the EU member states is framed by an EU
On the one hand, thi
directive. Directive 2003/86/EC establishes a set of rules aiming at harmonising national
level, and on the othe
rules and policies. On the other hand, previous research in the field allows for a comparison
vice versa.
of rules and trends taking place in member states at national level. Finally, new rules on
family reunification were adopted in Belgium in May 2011, which seem to abandon rules
Family reunification
applicable beforehand, where EU citizens and nationals were under the same legal regime.
policies and modifica
Under these new rules, Belgian nationals hoping to be reunited with family members coming
and European level a
from non EU-countries no longer benefit from favourable rules and have to fulfil new criteria
(I). However, such a s
9
3
9
in order to exercise
their right to family reunification. In this view, the situation of a Belgian
GENERAL
INTRODUCTION
national is getting closer to the situation of third country nationals.
Considering
theseamong
elements,
studystates
will focus
on the family
reunification
thirddecades,
country
Migration
policies
EU this
member
have undergone
major
changes infor
recent
nationals
legally
residing
in
one
EU
member
state.
As
a
consequence,
national
rules
which have had a significant impact on family migration rules and policies.
regarding conditions will be disclosed and assessed on the basis of provisions enshrined in
Directive
2003/86/EC
ontriggered
the righttremendous
to family reunification.
Firstly,
the 1970s
oil crisis
change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
B. legally
Member
states
to
enter
EU covered
member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
It was not possible in the framework of this study to cover all 27 EU member states. Hence,
it was necessary
to target
a group
of member
orderintoimportance
reflect, as much
as possible,
Meanwhile,
the issue
of family
reunification
hasstates
been in
gaining
at European
level.
different
balances
and
trends.
Therefore,
a
balance
has
been
struck
taking
into
account
the
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
size
of
the
states
and
their
location
between
South
and
North.
right to family life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
More specific
to been
the migration
have also
taken argument
on board, like
old
precisely,
the characteristics
right to familyrelated
life has
used asfield
a strong
and been
successful
against
immigration
countries
and
new
immigration
countries,
or
states
where
new
rules
have
been
expulsion procedures in member states. It has also been successful in cases regarding the
adopted within
thecountry
last 2-3nationals.
years. Finally, the position of certain states in the 'migration debate'
admission
of third
was also of importance in the selection. This was particularly the case for those member states that
have
a loud
'voice',
often negative,
in thelevel
debate.
counter-balance
negative
discourses,
the
A
second
major
step occurred
at European
afterTo
1999.
With the entry
into force
of the Treaty
team
has
chosen
to
disclose
rules
applicable
in
states
where
the
approach
towards
migrants
is
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
more
favourable.
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
On the lawfully
basis of on
these
member
statesthen,
haveseveral
been targeted:
Belgium,
residing
the elements,
territory ofthe
an following
EU member
state. Since
rules related
to the
France,
Germany,
the
Netherlands,
Poland,
Portugal,
Slovenia,
Spain
and
Sweden.
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
III. Methodology
'technical'
adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
With the support
of the legally
Odysseus
network
– a partner
in this Secondly,
project – several
nationalCourt
experts
integration
of migrants
residing
in their
host society.
the European
of
5
The
coming
from
the
EU
member
states
identified
were
asked
to
fill
in
a
questionnaire.
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension:
it
questionnaire
overof90
relatedreunification
to the conditions
for family
reunification
has
recognisedcontained
the existence
thequestions
right to family
and firmly
delineated
member
requested
by member
states and took into account the effects of EU rules on national systems.
states'
margins
of manoeuvre.
This synthesis report based on the analysis of national answers has been revised by one of the
and approved
before
editinghave
by national
experts. modified for almost 40 years now.
experts6migration
Family
rules and
policies
been constantly
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
5. National
experts areis the
following: issue
Sylviethat
Sarolea
(Belgium);
Labayle
(France); Kay
Hailbronner
Family
reunification
a sensitive
is subject
to Henri
changing
landscapes.
Ever-evolving
(Germany); Tineke Strik (the Netherlands); Barbara Mikolajczyk (Poland); Nuno Picarra and Francisco Pereira
policies
and modifications have been very important in the last couple of years at both national
Coutinho (Portugal), Neza Kogovsek Salamon (Slovenia), Cristina Gortazar Rotaeche (Spain); Orjan
andEdstrom,
European
levelRiekkola
and explain
a new
study on conditions for family reunification is timely
Susanne
and Eva why
Nilsson
(Sweden).
(I).
such a Université
study needs
toetbe
(II) (France).
and its methodology defined (III).
6. However,
Prof. Henri Labayle,
de Pau
desdelineated
Pays de l'Adour
310
10
According to information provided by national experts and on the basis GENERAL
of scientific INTRO
information already available – primarily the report from the Odysseus Network on the
implementation of Directive 2003/86/EC in the member states and the report published by
the Centre for Migration Law at Radboud University in Nijmegen (the Netherlands)
– the final
Migration
policies am
report seeks to deepen knowledge of family reunification rules. More particularly,
points
whichit have
had a sig
out new rules adopted in certain member states and highlights trends among them. This
approach takes also into account modifications introduced by the jurisprudence
of 1970s
the oil c
Firstly, the
European court of justice. It also seeks to situate the report in a context where the
European
labour migration poli
Commission is scheduled to publish a Green Paper by the end of 2011.
to legally enter EU m
In the end, this methodology allows us to:
migrants entered for t
Meanwhile, the issue
√ identify changes in national law and/or regulation since 2007;
The growing impact o
√ deepen knowledge of specific items;
right to family life rep
√ confirm or discover trends among member states, be they in favour
familyrights, the
on of
Human
reunification or against;
precisely, the right to
√ confront national rules with EU requirements and evolutions deriving principally
from
expulsion
procedure
the European Court of Justice's jurisprudence;
admission of third co
√ put national rules, trends and shortcomings into perspective, in particular given the
forthcoming consultation on the basis of the European Commission's Green
Paper major
on step o
A second
family reunification.
of Amsterdam, the Eu
this basis, it adopted
determines the condit
residing lawfully on t
conditions for exerci
status – have been em
However, the novelt
'technical' adoption o
the Directive are clos
not to be considered
integration of migran
Justice's interpretation
has recognised the e
states' margins of ma
Family migration rule
On the one hand, thi
level, and on the othe
vice versa.
Family reunification
policies and modifica
and European level a
(I). However, such a s
11
3
11
CHAPTER INTRODUCTION
1 – GENERAL OVERVIEW
GENERAL
This first Chapter
to EU
outline
changes
national
law (laws
and/or
regulations)
have
Migration
policies aims
among
member
statesinhave
undergone
major
changes
in recent that
decades,
occurred
since
Such an
approach
takesmigration
principally
asand
a basis
two comparative studies
which
have
had 2007.
a significant
impact
on family
rules
policies.
dealing with the transposition of Directive 2003/86/EC on the right to family reunification in
EU member
states.
One was
written
by the Odysseus
for the European
Commission.
Firstly,
the 1970s
oil crisis
triggered
tremendous
change. network
It drove member
states to adopt
restrictive7
The other
was published
Centre for Migration
Law at Radboud
University
inmain
Nijmegen
labour
migration
policies. by
As the
a consequence,
family reunification
became
one of the
ways
(the
Netherlands).
to
legally
enter EU8 member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
Both reports were finished in 2007. They offer a basis for identifying rules that have been
adopted since
Indeed,
reunification
is gaining
a domain
under a lotatofEuropean
strain at level.
both
Meanwhile,
the then.
issue of
familyfamily
reunification
has been
in importance
EU growing
and national
level
(I) European
and leadsCourt
member
statesRights
to modify
in this regard.
Former
The
impact
of the
of Human
and itsrules
jurisprudence
regarding
the
reports,
in thislife
way,
provide a abasis
assess
family
reunification
have
right
to family
represented
first to
step.
On whether
the basis conditions
of Article 8for
of the
European
Convention
been
recently
modified
andhas
to what
extent
have
been made
or tougher
(II).
on
Human
rights,
the Court
framed
and they
limited
member
states'more
roomflexible
for manoeuvre.
More
precisely, the right to family life has been used as a strong and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
I. Moving
family
reunification under strain
admission
of context:
third country
nationals.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
OfAmsterdam,
the nine member
statesUnion
covered
the competences
survey, eight in
have
adopted
rules since
2007
of
the European
(EU)by
gained
the field
of migration
issues.
On
modifying
conditions
for
family
reunification.
Poland
is
the
only
country
not
to
have
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
The fact
substantially
national
rules regarding
for family
determines
themodified
conditions
for exercising
the right toconditions
family reunification
forreunification.
third country9nationals
that
eight
member
states
modified
the
rules
applicable
to
conditions
for
family
reunification
residing lawfully on the territory of an EU member state. Since then, several rules related to the
demonstrates
the issue
onetooffamily
the liveliest
in the –field
of migration.
legislative
or
conditions
for that
exercising
the isright
reunification
as well
as rights This
deriving
from this
regulatory
'activism'
is
fuelled
by
different
and
intertwined
reasons
at
EU
and
national
level.
status – have been embedded in EU rules, which impact upon national rules
practices.
A. At EU level
However,
the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
At EU
level, are
theclosely
obligation
Directive
2003/86/EC
legal should
orders
the
Directive
linkedtototranspose
the integration
of migrants.
In thisinto
view,national
the Directive
obliged
member
states
to
act
after
2003.
As
a
consequence,
national
institutions
adapted
not to be considered as a tool to manage migration but rather as a means of enhancing the
their rules to
requirements
and provisions
thesociety.
directive.
integration
of the
migrants
legally residing
in their of
host
Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
7. H. Labayle
& Y. Pascouau,
"Directive
2003/86/EC
on theconstantly
Right to Family
Reunification”,
Study on
"Conformity
Family
migration
rules and
policies
have been
modified
for almost
40theyears
now.
checking of the Transposition by Member States of 10 Directives in the Sector of Asylum and Immigration" done for
On DG
the JLS
one
hand,
this
is
due
to
the
modification
of
migration
policies
at
national
and
European
of the European Commission, 2007 (contract JLS/B4/2006/03).
level,
on the other,
to the
ofR.family
reunification
migration
flowsDirective
and most
probably
8. K. and
Groenendijk,
R. Fernhout,
D.impact
van Dam,
van Oers
& T. Strik, "Theon
Family
Reunification
in EU
Member
viceStates.
versaThe
. First Year of Implementation", Centre for Migration Law, Willem-Jan and René van der Wolf Publishers,
2007.
9. This reunification
could be explained
the fact that
Poland
first time alandscapes.
legal regime Ever-evolving
regarding family
Family
is abysensitive
issue
that established
is subjectfortothechanging
reunification when it transposed Directive 2003/86/EC in 2003 (See H. Labayle & Y. Pascouau op. cit. p. 161.). As a
policies
and
modifications
have
been
very
important
in
the
last
couple
of
years
at
both
national
consequence, these rules did not need to be modified substantially and subsequent legislation aimed at adapting the
andrules
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
timely
sometimes on specific and technical points such as rules on family reunification for beneficiaries of subsidiary
(I). However,
such
a
study
needs
to
be
delineated
(II)
and
its
methodology
defined
(III).
protection or investigation powers awarded to Border Guards.
312
12
This legal movement was followed a few years later by a strong political incentive.
EU heads INTRO
GENERAL
of state and government adopted in October 2008 the European Pact on Immigration and
Asylum. The European Pact is a document agreed by EU heads of state and government. It
defines the orientations of EU immigration and asylum policies for the years toMigration
come. policies am
which have had a sig
With regard to family reunification, EU leaders agreed "to regulate family migration more
effectively". In this regard, the Pact invites each member state "to take into consideration
in oil c
Firstly, the 1970s
its national legislation, (...), its own reception capacities and families' capacitylabour
to integrate,
migration poli
as evaluated by their resources and accommodation in the country of destination
and, enter
for EU m
to legally
example, their knowledge of that country's language". In other words, it calls
for
further
migrants entered for t
action at national level, more particularly regarding conditions for family reunification.
Meanwhile, the issue
The growing impact o
right to family life rep
At national level, family reunification is subject to enhanced focus and is oftenon
under
strain
Human
rights, the
for two main and complementary reasons.
precisely, the right to
expulsion procedure
Firstly, and since the mid 1970s, family reunification remains the most importantadmission
way to enter
of third co
an EU member state legally. As a consequence, it touches upon the question of admission of
third country nationals and is therefore a very sensitive issue.
A second major step o
B. At national level
of Amsterdam, the Eu
Secondly, and consequently, some member states are tempted to modify rules
this regarding
basis, it adopted
family reunification with a view to better managing migration flows – i.e. determines
to reducing
the condit
the number of people entitled to family reunification – by making the rules
harder.
residing
lawfully on t
The debate that has been taking place in France since 2006, qualifying family conditions
reunification
for exerci
as "unwanted migration" ("immigration subie") or "chosen migration" ("immigration
statuschoisie"
– have )been em
as regards labour migration is a good example of such a trend leading to modification
of the rules.
However, the novelt
'technical' adoption o
It should, however, be underlined that not all member states are following
sameare clos
the the
Directive
restrictive path. Two of them, Portugal and Slovenia, have for instance adopted
not to berules
considered
making conditions for family reunification easier. But, and as we will integration
see below,
of migran
this concerns a limited number of member states and modifications may sometimes
be
Justice's interpretation
considered as minor.
has recognised the e
states' margins of ma
EU obligations and incentives, as well as national priorities, shape the context within which
family reunification stands and evolves. This moving context is characterisedFamily
in the migration
table
rule
below, which demonstrates that the member states surveyed have several times
modified
On the one hand, thi
national rules related to family reunification.
level, and on the othe
vice versa.
The table takes into account dates of modification and types of rules. In this regard, the
distinction is usually that laws establish or modify rules, whereas regulations
are
Family reunification
implementing instruments i.e. regulations specify legal provisions in order topolicies
allow and
theirmodifica
implementation. Whatever the type of rules, the table below shows that the field
family level a
and of
European
reunification is constantly evolving in the EU member states selected.
(I). However, such a s
13
3
13
Changes
Date(s) of mod ification
GENERAL
INTRODUCTION
BE
Yes
2009-2011
Type of rule s
Law & Regulation
FR
Yes
2007-2008
Law & Regulation
GE
Yes
2011
Law
MigrationNL
policies among
have undergone major changes
in recent decades,
Law & Regulation
Yes EU member states
2009-2010
PL had a significant
Yes
2008-2011
Law & Regulation
which have
impact on family
migration rules and policies.
PT
Yes
2009
Regulat ion
Yes triggered tremendous
2008-2011
Firstly, theSL1970s oil crisis
change. It drove member statesLaw
to adopt restrictive
SP
Yes As a consequence,
2009-2011
Law one
& Regulation
labour migration
policies.
family reunification became
of the main ways
SW
Yes
2010
Law & Regulation
to legally enter EU member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
II. Overview
modifications
regarding
conditions
family at
reunification
Meanwhile,
the of
issue
of family reunification
has been
gaining infor
importance
European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
right to family life represented a first step. On the basis of Article 8 of the European Convention
ThisHuman
short overview
the conditions
for member
family reunification
by Directive
on
rights, the addresses
Court has framed
and limited
states' room defined
for manoeuvre.
More
2003/86/EC
as
a
framework
(A).
It
then
recalls
the
type
of
conditions
that
were
implemented
precisely, the right to family life has been used as a strong and successful argument against
in the member
states selected
in 2007
(B).ItThe
concludes
with
outline
of current
expulsion
procedures
in member
states.
hasoverview
also been
successful
in an
cases
regarding
the
trends
taking
place
in
the
member
states
surveyed
(C).
admission of third country nationals.
A.second
Conditions
by Directive
2003/86/EC
A
majordefined
step occurred
at European
level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Directive
set of
conditions
member states
may ask applicants
for
this
basis, 2003/86/EC
it adopted a establishes
Directive ona the
right
to familythat
reunification.
This Directive
(2003/86/EC)
family
reunification
to
fulfil.
For
the
purposes
of
this
study,
the
main
conditions
in
articles
4,
determines the conditions for exercising the right to family reunification for third country nationals7
and 8 have
beenon
more
targeted.
residing
lawfully
the particularly
territory of an
EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
Article– 7
of Directive
2003/86/EC
allowswhich
member
states
to national
require rules
a sponsor
to prove that
status
have
been embedded
in EU rules,
impact
upon
and practices.
he/she has:
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
√ appropriate
accommodation;
'technical'
adoption
of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
√
sickness
insurance;
the Directive are closely linked to the integration of migrants. In this view, the Directive should
√ stable
regular as
resources;
not
to be and
considered
a tool to manage migration but rather as a means of enhancing the
√
compliance
with
integration
measures.
integration of migrants legally residing
in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
Under
Article 8the
of existence
Directive of
2003/86/EC,
states are entitled
to establish
a period
of
has
recognised
the right tomember
family reunification
and firmly
delineated
member
legal
residence
before
the
sponsor
is
entitled
to
be
joined
by
his/her
family.
This
provision
states' margins of manoeuvre.
stipulates that such a period may not exceed two years.
Family migration rules and policies have been constantly modified for almost 40 years now.
Article
4, paragraph
Directive
2003/86/ECofstates
"in order
to better
ensure
On
the one
hand, this5isof
due
to the modification
migration
policies
at national
andintegration
European
and
to
prevent
forced
marriages,
member
states
may
require
the
sponsor
and
his/her
spouse
level, and on the other, to the impact of family reunification on migration flows and most probably
to
be
of
minimum
age,
and
of
maximum
21
years,
before
the
spouse
is
able
to
join
him/her".
vice versa.
B. Statereunification
of play in 2007
Family
is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
None
of the level
conditions
enshrined
thestudy
directive
are mandatory.
2003/86/EC
and
European
and explain
why ain
new
on conditions
for familyDirective
reunification
is timely
allows
member
states
to
incorporate
the
conditions
into
their
national
legislation
(I). However, such a study needs to be delineated (II) and its methodology defined (III). but does
314
14
not bind them to do so. As demonstrated in the table below10, based on the outcomes
of the INTRO
GENERAL
study carried out by the Odysseus Network in 2007, some member states request third
country nationals to comply with almost all of the conditions foreseen, whereas others do
not impose any specific conditions.
Migration policies am
which have had a sig
State s
BE
FR
GE
NL
PL
PT
SL
SP
SW
Conditions for family reunification requested in the member States (end 2007)
Sickness
Appropria te
S table &
Integration
Pe riod of
Total
Firstly, the 1970s oil c
Insurance
accommodation
regular
measure s
legal
resources
residence labour migration poli
YES
YES
YES *
NO
YES
3-4/5 enter EU m
to legally
NO
YES
YES
YES
YES
4/5 entered for t
migrants
YES
YES
YES
YES
YES
5/5
NO
NO
YES
YES
NO
2/5
Meanwhile,
the issue
YES
YES
YES
NO
YES
4/5
The
growing
impact o
NO
YES
YES
NO
NO
2/5
right 3/5
to family life rep
YES
NO
YES
NO
YES
on Human
rights, the
YES
YES
YES
NO
YES
4/5
NO
NO
NO
NO
NO
0/5 the right to
precisely,
5/ 9
6/9
8/9
3/9
6/9
expulsion procedure
* In Belgiu m, such a re quirement was only asked for in the family reunification of par ents of adult handicapped
admission
children and foreign students.
of third co
A second major step o
This table gives a general overview of conditions requested by member states
in the the Eu
of Amsterdam,
framework of the family reunification procedure at the end of 2007. Although
this basis, the
it adopted
quantitative approach is always limited, as it needs to be combined with qualitative
analyses,
determines
the condit
it nevertheless offers interesting points of comparison.
residing lawfully on t
conditions for exerci
First of all, Sweden was the only member state not to request any conditions
for –family
status
have been em
reunification. On the contrary, Germany required the fulfilment of all the five conditions in
the chart. France, Poland and Spain, and to a certain extent Belgium, demanded
However, the
the novelt
fulfilment of four conditions. In this group, France was the only state to request 'technical'
third country
adoption o
nationals to comply with integration measures. Slovenia imposed three conditions,
andare clos
the Directive
Portugal and the Netherlands demanded the fulfilment of two conditions.
not to be considered
integration of migran
Secondly, of the conditions covered by the chart, that of stable and regular resources
the
Justice'sisinterpretation
most commonly used: eight of the member states, with the exception of Sweden,
use
such
has recognised the e
a requirement. In the category of material conditions, appropriate accommodation
is the of ma
states' margins
second most implemented condition. However, it should be pointed out that resources and
accommodation conditions vary considerably between member states. Differences
in wages
Family
migration rule
and living conditions between member states explain the discrepancies with
regard
On the oneto
hand, thi
'resources' conditions. As for accommodation conditions, the differences are explained
bythe othe
level, and on
existing variations in national practices and rules.
vice versa.
10.
15
Family reunification
policies and
The Chart does not take on board the condition related to minimum age, which will be dealt with separately
due tomodifica
and
European
the particular nature of this issue and to huge differences between member states in this regard. However, it is already level a
possible to indicate that, as it stood in 2007, this condition was implemented in BE, FR, GE, NL and(I).
SW.
However, such a s
3
15
Integration measures
were applied in 2007 in three member states: France, Germany and the
GENERAL
INTRODUCTION
Netherlands. The limited number of member states engaged in such a process must not be
underestimated, for several reasons. Firstly, these member states are established countries of
immigration
and therefore
have
considerable
weight
in the debate
onchanges
migration
Migration
policies
among EU
member
states have
undergone
major
inpolicy.
recent Secondly,
decades,
they
are
very
active
in
the
field
and
may
act
as
'pioneers'
on
aspects
of
migration
policy.
They have
which have had a significant impact on family migration rules and policies.
taken advantage of the directive to establish schemes under which family members are requested
to fulfilthe
integration
in thetremendous
country of origin
i.e.Itbefore
access tostates
the European
Union. In
Firstly,
1970s oilmeasures
crisis triggered
change.
drove member
to adopt restrictive
addition,
rules
related
to
integration
have
not
always
been
adopted
in
order
to
boost
the
labour migration policies. As a consequence, family reunification became one of the main ways
integration
capacity
of
migrants,
but
rather
to
control
or
limit
family
migration.
The
Dutch
example
to legally enter EU member states. Figures
in some EU countries confirm that the majority of
11
Hence other member states may be tempted to follow
is one of the
mostfor
significant
in this
regard.
migrants
entered
the
purpose
of
family
reunification.
this path.12 In practice, the issue of introducing integration measures in the framework of the family
reunificationthe
procedure
been
either discussed
– likegaining
in Spainin–importance
or already implemented
the
Meanwhile,
issue ofhas
family
reunification
has been
at European in
level.
United
Kingdom
and
Denmark
and
planned
in
Austria.
In
the
end,
the
possibility
of
helping
to
The growing impact of the European Court
of Human Rights and its jurisprudence regarding the
13
Whenever
planned
or
adopted,
mechanisms
related
to
expand
such
mechanisms
is
envisaged.
right to family life represented a first step. On the basis of Article 8 of the European Convention
integration
more
the country
of origin,
must be
in More
order
on
Human measures,
rights, the and
Court
has particularly
framed andin
limited
member
states' room
forscrutinised
manoeuvre.
to
assess
whether
they
seek
to
enhance
integration
or
limit
migration.
precisely, the right to family life has been used as a strong and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
C. Currentof
trends
in member
states surveyed
admission
third country
nationals.
Ofsecond
the nine
member
states covered
by the level
survey,
just1999.
one –With
Poland
– has into
not modified
national
A
major
step occurred
at European
after
the entry
force of the
Treaty
rules
on
conditions
for
family
reunification.
The
other
eight
have,
on
the
contrary,
adopted
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
legislative
regulatory
measures
order
rulesThis
or create
new(2003/86/EC)
ones.
this
basis, itoradopted
a Directive
oninthe
righttotomodify
family previous
reunification.
Directive
determines the conditions for exercising the right to family reunification for third country nationals
In Belgium,
successive
laws adopted
inmember
2009 and
2011
residing
lawfully
on the territory
of an EU
state.
Sincehave
then,significantly
several rulesmodified
related torules
the
regarding
family
reunification.
Since
2009,
accommodation
conditions
and
sickness
conditions for exercising the right to family reunification – as well as rights deriving insurance
from this
are requested
for the
family reunification
minor
refugees.
laws have
the scope of
status
– have been
embedded
in EU rules, of
which
impact
uponThe
national
ruleslimited
and practices.
family reunification in polygamous marriages to one spouse and the children of that spouse. The
minister is the
entitled
to assess
the effective
of family life.
Last
but not
least,than
the law
However,
novelty
introduced
by thecohabitation
Treaty of Amsterdam
goes
much
further
the
adopted
in
May
2011
introduced
an
income
requirement
on
the
basis
of
which
the
sponsor
must
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots
of
prove
that they
a minimum
equivalent
to 120% of
income.
the
Directive
areearn
closely
linked toincome
the integration
of migrants.
In the
thisminimum
view, the social
Directive
should
not to be considered as a tool to manage migration but rather as a means of enhancing the
In the Netherlands,
rulesresiding
have made
previous
ones tougher.
Integration
requirements
integration
of migrantsnew
legally
in their
host society.
Secondly,
the European
Court of
have
been
upheld
and
income
requirements
modified
to
make
them
stricter.
In
September
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension:
it
2010,
the newthecoalition
announced
several extra
requirements
formember
family
has
recognised
existencegovernment
of the right to
family reunification
and firmly
delineated
states' margins of manoeuvre.
Family migration rules and policies have been constantly modified for almost 40 years now.
On
the one hand, this is due to the modification of migration policies at national and European
11. See report issued by Human Rights Watch, which found that people of Moroccan and Turkish origin are especially
level,
and on
thecitizens
other, to
the'Western'
impactcountries
of family
reunification
on migration
flows
and most
probably
affected,
while
from
such
as Canada, Australia
and Japan
are exempt.
Human
Rights
viceWatch
versa'The
. Netherlands: Discrimination in the Name of Integration Migrants' Rights under the Integration Abroad
Act', May 2008, number 1.
12. Fromreunification
a technical pointisofaview,
Directive
2003/86/EC
not contain
any stand-still
clause regarding
integration
Family
sensitive
issue
that isdoes
subject
to changing
landscapes.
Ever-evolving
measures. This means that after the entry into force of the directive, any member state may decide to apply such rules
policies
and
modifications
have
been
very
important
in
the
last
couple
of
years
at
both
national
and mechanisms in their own country.
and
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
13. Y. Pascouau "Mandatory Integration provisions in EC and EU Member States Law" in S. Bonjour, A. Rea & D.timely
Jacobs
(I). However,
a study
needs
to be delineated
(II) 2011.
and its methodology defined (III).
"The Others such
in Europe",
Editions
de l'Université
de Bruxelles,
316
16
reunification, including the abolishment of the admission of unmarried partnersGENERAL
and spouses INTRO
who are cousins, the introduction of the accommodation and sickness insurance
requirement and the requirement of one year legal residence, and the possibility to withdraw
the residence permit of admitted family members if they don't comply with
integration
Migration
policies am
conditions. In several parliamentary documents, the government indicated thatwhich
they have
would
had a sig
use all the margin of manoeuvre the directive leaves to the Member States in order to restrict
the right to family reunification.
Firstly, the 1970s oil c
labour migration poli
On the contrary, Portugal has made income requirements easier for people who
fall into
to legally
enter EU m
involuntary unemployment after family reunification. Slovenia has adopted successive
migrants laws
entered for t
that make, inter alia, the calculation of the period of legal residence easier (2008 and 2011) or
widen the scope of family members to include partners (2011). In Germany, rulesMeanwhile,
are primarilythe issue
aimed at modifying requirements applicable after entry into its territory and are
Therelated
growingtoimpact o
prolonging residence permits or issuing independent residence rights for the spouse.
right to family life rep
on Human rights, the
In other member states, such as France, rules have had the principal precisely,
objective the
of right to
implementing and therefore specifying legal norms adopted in 2007. For instance,
several
expulsion procedure
regulatory acts define integration measures or conditions for implementing the
requested
admission
of third co
condition of sufficient resources.
A second major step o
Finally, only two member states, Spain and Sweden, have introduced new requirements
that the Eu
of Amsterdam,
were not previously demanded. Sweden has abandoned its former position andthis
introduced,
basis, it adopted
under specific circumstances, income and accommodation conditions. In determines
Spain, rules
the condit
adopted in 2011 open the way to an increased role of integration issues. Since then,
renewal
residing
lawfully on t
of the residence permit may be subject to an evaluation of efforts of the alien to
integrate.for exerci
conditions
status – have been em
This shows, as stated above, that the domain is still a major concern and is subject to
perpetual modifications throughout EU member states. Spain and Sweden deserve
particular
However,
the novelt
mention as they increase the number of member states using additional conditions
in the
'technical'
adoption o
field of family reunification. As a result, every member state of the European Union,
i.e. notare clos
the Directive
only those under scrutiny but all 27, currently applies an income requirement.not to be considered
integration of migran
State s
BE
FR
GE
NL
PL
PT
SL
SP
SW
Conditions for family reunification requested in the memb er States (mid 2011)Justice's interpretation
Sickness
Appropria te
S table &
Integration
Pe riod of has Total
recognised the e
Insurance
accommodation
regular
measure s
legal
states'
margins of ma
resources
residence
YES
YES
YES
NO
YES
4/5
Family
NO
YES
YES
YES
YES
4/5migration rule
YES
YES
YES
YES
YES
5/5 one hand, thi
On the
NO
NO
YES
YES
NO
level,2/5
and on the othe
YES
YES
YES
NO
YES
vice 4/5
versa.
NO
YES
YES
NO
NO
2/5
YES
NO
YES
NO
YES
3/5
Family
YES
YES
YES
YES
YES
5/5 reunification
policies
NO
YES
YES
NO
NO
1/5 and modifica
and
European
level a
5/ 9
7/9
9/9
4/9
6/9
(I). However, such a s
17
3
17
Such a movement
cannot be disconnected
GENERAL
INTRODUCTION
from the European Pact in Immigration and
Asylum. As we have already stated, this document defines orientations agreed by heads of
state and government for the coming years. As regards family reunification, it invites each
member state
"to among
take into
its undergone
national legislation
(...) its
own reception
Migration
policies
EU consideration
member states in
have
major changes
in recent
decades,
capacities
and
families'
capacity
to
integrate,
as
evaluated
by
their
resources
and
which have had a significant impact on family migration rules and policies.
accommodation in the country of destination and, for example, their knowledge of that
country's
language".
Firstly,
the 1970s
oil crisis triggered tremendous change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
Material
for family
– accommodation,
resources
andmajority
language
to
legally conditions
enter EU member
states.reunification
Figures in some
EU countries confirm
that the
of
knowledge
–
are
considered
to
be
areas
within
which
action
or
further
action
is
agreed.
But
migrants entered for the purpose of family reunification.
what is striking in the document is the acknowledgement of taking these elements "into
consideration
(its)ofnational
legislation".has
This
means
thatinmember
states
that havelevel.
not
Meanwhile,
theinissue
family reunification
been
gaining
importance
at European
introduced
such
requirements
into
their
legislation
already
are
invited
to
do
so.
This
explains
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
why to
Sweden
introduced an
income
requirement
when
such
a the
possibility
was
excluded
right
family has
life represented
a first
step. On
the basis of
Article
8 of
European
Convention
14
in
2007
as
"it
would
deviate
from
the
Swedish
immigration
policy".
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
Furthermore,
this shows
how heads
of state
andalso
government
have succeeded
in modifying
expulsion
procedures
in member
states.
It has
been successful
in cases regarding
the
the
content
of
Directive
2003/86/EC
even
without
entering
into
any
legislative
process.
admission of third country nationals.
Indeed, material conditions for family reunification defined by the directive are all optional
provisions,
i.e. step
member
states
may or may
use
them.
Thetheacknowledgement
of taking
A
second major
occurred
at European
levelnot
after
1999.
With
entry into force of the
Treaty
such
conditions
into
consideration
in
national
law
means
that
member
states
have
agreed
to
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
adopt
and
implement
such
material
conditions
in
their
own
legislation,
particularly
when
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
they did not
exist.
this regard,
the European
Pact transformed
optional
determines
thealready
conditions
forInexercising
the right
to family reunification
for third
countryprovisions
nationals
15
of
a
Directive
into
mandatory
ones.
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
This overview
demonstrates,
basis
of quantitative
that and
rulespractices.
and policies
status
– have been
embedded inon
EUthe
rules,
which
impact uponanalysis,
national rules
regarding family reunification are under strain. The aim of the current study is to analyse the
rules applicable
in the
selectedby EU
regarding
conditions
family
However,
the novelty
introduced
the member
Treaty of states
Amsterdam
goes much
furtherforthan
the
reunification.
Such
a
qualitative
approach
offers
two
main
relevant
inputs.
On
the
one
hand,
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots
of
it offers
an insight
intolinked
the content
of the rules
and theirInimpact,
whether
restrictive
or
the
Directive
are closely
to the integration
of migrants.
this view,
the Directive
should
flexible,
on
the
family
reunification
procedure.
On
the
other
hand,
it
allows
us
to
plot
trends
not to be considered as a tool to manage migration but rather as a means of enhancing the
within and of
across
member
states
in this
sensitive
domain.
integration
migrants
legally
residing
inhighly
their host
society.
Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
Family migration rules and policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
14. H. Labayle
& Y. Pascouau,
cit. p. 99.issue that is subject to changing landscapes. Ever-evolving
Family
reunification
is aop.
sensitive
15. Refer in this regard to P. de Bruycker quoted by H. Dumont "La politique européenne d'immigration. Synthèse des
policies
and
modifications
have
been very important in the last couple of years at both national
travaux en atelier" in J.-Y. Carlier "L'étranger face au droit, XXème journées d'études juridiques Jean Dabin", Bruylant,
andBruxelles,
European
level
and
explain
why
study"Leon
conditionsfamilial
for family
reunification
is timely
2010. See also, P. de Bruycker &aY.new
Pascouau
regroupement
à la croisée
des droits européen
et
(I). However,
such Roi
a study
needs
to be delineated (II) and its methodology defined (III).
belge", Fondation
Baudouin,
2011.
318
18
CHAPTER 2 – COMPARATIVE ANALYSIS REGARDING CONDITIONS
FOR INTRO
GENERAL
FAMILY REUNIFICATION
Migration policies am
whichmust
havebe
had a sig
This study focuses on the wide range of conditions that member states demand
fulfilled to exercise the right to family reunification. These include the scope of persons
Firstly, the
1970s oil c
entitled to benefit from the right (Section 1), procedural requirements that applicants
must
labour
migration
poli
comply with (Section 2) and material conditions that they must fulfil (Section3). The study
to
legally
enter
EU
m
also addresses different changes and trends that have taken place in the member states since
migrants
entered
for
t
the adoption of Directive 2003/86/EC (Section 4).
Meanwhile, the issue
The growing impact o
SECTION 1 – FAMILY MEMBERS
right to family life rep
on Human rights, the
the right to
It goes without saying that family reunification involves family members. Butprecisely,
beyond this
expulsion
procedure
elementary statement lurks a more difficult question: which family members should fall
admission
of
within the scope of family reunification? In other words, should family reunification be openthird co
to a large group of persons or should it be limited to just a few?
A second major step o
of Amsterdam,
This question is important, as the notion of family is not shared in the same manner
all over the Eu
basis,
it adopted
the world. Indeed, in some regions, family is not based on descent and entails athis
large
group
the condit
of persons. In other regions, family is more precisely defined as strictly based ondetermines
descent and
residing lawfully on t
covers a limited group of people.
conditions for exerci
statusto–family
have been em
The latter is the position developed at EU level in Directive 2003/86/EC. The right
reunification is primarily awarded to the nuclear family. Hence, and for the time being, spouses
the novelt
(I), unmarried partners (II) and children (III) fall within the scope of family However,
reunification
'technical'
adoption o
procedure under EU law. The Directive makes it possible for member states to extend
the scope
the Directive
of the right for parents in the direct ascending line, but this possibility remains optional
(IV). are clos
not to be considered
integration of migran
I. The spouse
Justice's interpretation
has recognised the e
A. Right to reunification for the spouse
states' margins of ma
The spouse is, with minor children, the person to whom family reunification is most
Family migration
rule
obviously granted. Several international instruments recognise this possibility, whereas
at EU
On
the
one
hand,
thi
level family reunification of the spouse is a right. Directive 2003/86/EC indicates in Article 4
level,
and
on
the
othe
that member states shall authorise entry and residence to "the sponsor's spouse". As a
vice
.
consequence, and provided that the spouse fulfils the appropriate conditions set
by versa
national
rules, he/she has the right to join the sponsor.
Family reunification
policies
This right to family reunification has been clearly recognised by the Court of Justice.
In aand
casemodifica
and
European
law issued in June 2006 it stated that "Article 4(1) of the Directive imposes precise positive level a
(I). However, such a s
19
3
19
obligations, with
corresponding clearly defined individual rights, on the member states, since
GENERAL
INTRODUCTION
it requires them, in the cases determined by the directive, to authorise family reunification of
certain members of the sponsor's family, without being left a margin of appreciation".16
Migration policies among EU member states have undergone major changes in recent decades,
Unsurprisingly,
shown inimpact
previous
studies,
in all ofrules
the and
member
states covered by this
which
have had aassignificant
on family
migration
policies.
study the spouse has a right to family reunification.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
B. legally
Condition
minimum
to
enterofEU
memberage
states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
However, the right is not absolute in the sense that some member states have adopted rules
that limit thethe
right
to family
reunification
tohas
spouses
haveinreached
a minimum
age. level.
Such
Meanwhile,
issue
of family
reunification
been that
gaining
importance
at European
a
possibility
is
recognised
by
Article
4,
paragraph
5,
of
Directive
2003/86/EC.
This
provision
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
indicates
that life
"in order
to ensure
better
and
prevent
marriages
Member
right
to family
represented
a first
step.integration
On the basis
of to
Article
8 offorced
the European
Convention
States
may
require
the
sponsor
and
his/her
spouse
to
be
of
a
minimum
age,
and
at
maximum
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
21 years old,
before
spouse
able
to join
precisely,
the right
tothe
family
life ishas
been
usedhim/her".
as a strong and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
Among the
statesnationals.
studied, three categories can be distinguished:
admission
ofmember
third country
√ member
states
which have
instituted
a minimum
age
above
age
of force
majority,
such
as
A second
major step
occurred
at European
level
after 1999.
With
the the
entry
into
of the
Treaty
Belgium
and
the
Netherlands;
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
√ member
statesa which
haveonestablished
based
on the age This
of majority,
such
as France,
this basis,
it adopted
Directive
the right torules
family
reunification.
Directive
(2003/86/EC)
Germany
and
Sweden;
determines the conditions for exercising the right to family reunification for third country nationals
√ member
haveofnot
any rules
this regard,
such asrules
Poland,
Portugal,
residing
lawfully states
on thewhich
territory
anadopted
EU member
state.inSince
then, several
related
to the
Slovenia
and
Spain.
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
1. Minimum
aboveintroduced
the age ofbymajority
However,
theage
novelty
the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
In the
Netherlands,
thelinked
age limit
has
recently of
been
changed
andview,
upheld
21 years
old.
the
Directive
are closely
to the
integration
migrants.
In this
the at
Directive
should
Previous
legislation
used
to
distinguish
between
'family
reunification',
where
the
family
not to be considered as a tool to manage migration but rather as a means of enhancing the
relationshipofexisted
before
theresiding
entry ofinthetheir
sponsor
into the Secondly,
territory, and
formation',
integration
migrants
legally
host society.
the 'family
European
Court of
where
the
family
relationship
arose
at
a
time
when
the
principal
place
of
residence
of the
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension:
it
principal
person
was
the
Netherlands.
The
age
limit
was
18
years
old
for
family
reunification
has recognised the existence of the right to family reunification and firmly delineated member
and 21margins
years old
for family formation.
states'
of manoeuvre.
The European
Court
Justice
rejected
distinction
established
indicated
Family
migration
rulesofand
policies
havethe
been
constantly
modifiedby
forDutch
almostlaw.
40 Ityears
now.
that
Directive
2003/86/EC
precludes
national
legislation
that
"draws
a
distinction
according
On the one hand, this is due to the modification of migration policies at national and European
to whether
arose
before
or after on
themigration
sponsor flows
entered
territory
of
level,
and onthe
the family
other, torelationship
the
impact of
family
reunification
andthe
most
probably
17
As
a
consequence
of
this
judgement,
the
Dutch
authorities
have
the
host
Member
State".
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and
European
levelcase
andC-540/03,
explainEuropean
why a new
studyv.on
conditions
for family
reunification
is timely
16. ECJ,
27 June 2006,
Parliament
Council
of the European
Union,
point 60.
(I).
However,
such
a
study
needs
to
be
delineated
(II)
and
its
methodology
defined
(III).
17. ECJ 4 March 2010, Rhimou Chakroun, Case C-57/08, point 66.
320
20
modified their legislation. They have aligned all age limits to the 21 years old
threshold. INTRO
GENERAL
Given the restrictive nature of the Dutch policies, the decision was taken to raise the age limit
rather than lower it.
Migration policies am
In Belgium, the spouse or the partner must be older than 21. However, this limit
is reduced
which
have had a sig
to 18 when the marriage or the partnership pre-dates the arrival of the sponsor in Belgium.
In the wake of the Chakroun case law, it is doubtful whether such a distinctionFirstly,
is stillthe
valid.
1970s oil c
If the state wants to keep this rule, it must be objectively justified.
labour migration poli
to legally enter EU m
In both cases, the age of 21 represents an important limitation to family reunification.
migrants entered for t
It is allowed under Directive 2003/86/EC. However, this rule is not absolute and is subject
to a series of requirements deriving from international and EU obligations.Meanwhile,
Indeed, EUthe issue
law and obligations deriving from human rights instruments oblige national
Theauthorities
growing impact o
to take into account the applicant's individual situation before taking a negative
rightdecision.
to family life rep
More precisely, and according to Article 17 of Directive 2003/86/EC, when
onexamining
Human rights, the
an application member states have to take due account of the nature and solidity
of the
the right to
precisely,
person's family relationships, the duration of his residence in the member state
and
expulsion the
procedure
existence of family, cultural and social ties with his country of origin.18 As a consequence,
admission of third co
the age limit may act as a reference during examination of the application. But it should
not prevent member states from accepting reunification where the individual
situation
A second
major step o
imposes it.
of Amsterdam, the Eu
this basis, it adopted
determines the condit
residing lawfully on t
In France, Germany and Sweden, the spouse must be at least 18 years old to be
entitled for
to exerci
conditions
family reunification.
status – have been em
2. Minimum age equal to majority
In Sweden, this rule is implemented in order to avoid marriages and cohabitation
between
However,
the novelt
minors. Although the rule normally leads to the refusal of the requested residence
permit
'technical' for
adoption o
minors, the Swedish rule stipulates that the authorities must take into account other
personal are clos
the Directive
circumstances before taking such a negative decision. For instance, and according
previous
nottoto
be considered
jurisprudence, the authorities may not refuse to issue a permit if the spouse is pregnant.
integration of migran
Justice's interpretation
In France, the decree implementing the law adopted in 2006 indicates that the minimum
age the e
has recognised
limit must have been reached before the day the application for family reunification
is of ma
states' margins
introduced. In other words, no application will be considered valid before the spouse has
reached the age of 18 years old.
Family migration rule
On the one hand, thi
The French solution, which calls for the automatic rejection of applications, islevel,
less and
flexible
on the othe
than the Swedish one. The latter, which involves assessing each individual situation
before
vice versa
.
18.
21
Family reunification
policies and modifica
and
European
On this point, see ECJ points 52 to 64 ECJ, 27 June 2006, case C-540/03, European Parliament v.
Council
of the level a
European Union, point 60.
(I). However, such a s
3
21
rejecting an application,
should be considered a good and balanced solution. Indeed, the
GENERAL
INTRODUCTION
rule can be adapted to specific situations and may in the end be more favourable. It also
looks to be in line with the interpretation of the Court of Justice, which obliges national
19
authoritiespolicies
to conduct
"anEU
individual
examination
of applications
for family
Migration
among
member states
have undergone
major changes
in reunification".
recent decades,
In thishave
regard,
is questionable
the
existence
of and
a rule
leading to the automatic
which
had ita significant
impactwhether
on family
migration
rules
policies.
rejection of an application is compatible with this obligation.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
3. No specific
regarding
minimum age
labour
migrationrules
policies.
As a consequence,
family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
In Poland,
Portugal,
Spain,
rules related to family reunification do not set a
migrants
entered
for theSlovenia
purpose and
of family
reunification.
minimum age limit. But such a solution does not mean that any spouse aged far less than 18
years old is the
entitled
family reunification
reunification.has
Other
rules
to thoseatrelated
to family
Meanwhile,
issue to
of family
beennational
gaining in
importance
European
level.
reunification
may
in
law
or
in
practice
set
limits.
This
is
the
case
in
Poland,
where
the
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
marriage
must
be
recognised
by
Polish
law.
It
is
thus
impossible
to
apply
for
family
right to family life represented a first step. On the basis of Article 8 of the European Convention
reunification
in Poland
if the
spouse
is and
13 years
old,
for example.
In Spain,
and according
to
on
Human rights,
the Court
has
framed
limited
member
states' room
for manoeuvre.
More
Civil
Law,
a
marriage
under
14
years
old
is
not
allowed
and
a
marriage
taking
place
between
precisely, the right to family life has been used as a strong and successful argument against
14 to 18 years
old is subject
to anstates.
authorisation
provided
by the family
or the
judge. the
expulsion
procedures
in member
It has also
been for
successful
in cases
regarding
admission of third country nationals.
4. Comments
A second major step occurred at European level after 1999. With the entry into force of the Treaty
Member
state rules
show that
there(EU)
are gained
still huge
differencesinbetween
a limited
number
of
Amsterdam,
the European
Union
competences
the field even
of migration
issues.
On
of
examples.
From
no
age
limit
to
rigid
rules,
the
spectrum
of
possibilities
looks
diverse
and
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
demonstrates
national
encompass
different
categories
which
are not
homogenous.
determines
thethat
conditions
forrules
exercising
the right
to family
reunification
for third
country
nationals
Moreover,
national
rules
show
further
differences
between
member
states
in the to
same
residing lawfully on the territory of an EU member state. Since then, several rules related
the
category.
This
is
evident
in
the
French
and
Swedish
examples,
where
Sweden
implements
conditions for exercising the right to family reunification – as well as rights deriving from this
rules that
render
but France
relies
strict rules.
status
– have
beensituations
embeddedmore
in EUflexible
rules, which
impact
upononnational
rules and practices.
However, the
and novelty
as indicated
above, by
EU the
rules
and jurisprudence
obligations
However,
introduced
Treaty
of Amsterdamestablish
goes much
further that
thanlimit
the
member
states'
margins
of
manoeuvre
with
regard
to
the
minimum
age
required.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
Firstly,
Directive
2003/86/EC
age limit
that cannot
be exceeded.
Whenever
member
not
to be
considered
as a toolsets
to an
manage
migration
but rather
as a means
of enhancing
the
states
want
to
increase
the
age
limit,
they
cannot
go
above
21
years
old.
In
this
regard,
integration of migrants legally residing in their host society. Secondly, the European Court
of
proposals
put forwardof
bythe
theDirective
Dutch authorities
theinminimum
to 24dimension:
years is not
Justice's
interpretation
has playedtoa increase
strong role
giving it aage
crucial
it
compatible
withthe
theexistence
provisions
of the
directive
andreunification
therefore not
allowed.
The only margin
of
has
recognised
of the
right
to family
and
firmly delineated
member
manoeuvre
thatofcan
be found in the directive lies in the absence of a clear definition of whether
states'
margins
manoeuvre.
the limit of 21 years old is to be interpreted narrowly, at the latest before turning 21, or more
openly,migration
in that therules
spouse
able to join
sponsor
when modified
21 but before
turning4022.
Family
andispolicies
havethe
been
constantly
for almost
years now.
On the one hand, this is due to the modification of migration policies at national and European20
Secondly,
thethe
purpose
ofthe
theimpact
rule isof
crucial.
justification
of such an
age and
limitmost
is generally
level,
and on
other, to
family The
reunification
on migration
flows
probably
grounded
on
the
aims
enshrined
in
Article
4,
paragraph
5
of
Directive
2003/86/EC.
This
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and
European
level
explain
why a new
study
onC-57/08,
conditions
19. See
for instance
ECJ 4and
March
2010, Rhimou
Chakroun,
Case
point for
48. family reunification is timely
20. However,
Labayle H. &such
Pascouau
Y., op.needs
cit., p.to
45be delineated (II) and its methodology defined (III).
(I).
a study
322
22
provision indicates that the minimum age requirement seeks to ensure "better integration
and INTRO
GENERAL
to prevent forced marriages". If such a justification is largely shared by member states, it
constitutes a limit on their leeway to act. Indeed, requiring an age limit should only aim to
pursue these objectives. Hence other objectives, such as reducing family reunification,
Migration policies am
cannot justify member states' actions on such grounds. This statement is reinforced
by the
which have
had a sig
jurisprudence of the Court of Justice, which has ruled that the objective of the directive is "to
possibilities
promote family reunification".21 In other words, member states may not useFirstly,
the 1970s oil c
offered by the directive to limit or make family reunification harder without
legitimate
labour
migration poli
reasons for doing so.
to legally enter EU m
migrants entered for t
Finally, not fulfilling the minimum age condition would not automatically lead to the
rejection of an application. Member states have a duty under Article 17 Meanwhile,
of Directivethe issue
2003/86/EC to proceed to an individual examination of the application. In this
andimpact o
Theview,
growing
during the examination, national authorities have to take due account of theright
nature
and
to family life rep
solidity of the person's family relationships, the duration of his residence in the member
state
on Human
rights, the
and of the existence of family, cultural and social ties with his country ofprecisely,
origin. This
the right to
obligation has been emphasised by the Court of Justice.
expulsion procedure
admission of third co
To sum up, member states' margins of manoeuvre in this domain are framed by the
following rules:
A second major step o
of Amsterdam, the Eu
√ 21 years is an age limit that cannot be exceeded.
this basis, it adopted
√ The age limit condition is designed only to ensure better integration determines
and prevent
the condit
forced marriages.
residing lawfully on t
√ The age limit condition does not prevent national authorities fromconditions
examining
for exerci
each application on a case-by-case basis with regard to an applicant's
individual
status
– have been em
situation.
However, the novelt
'technical' adoption o
C. Rules regarding the validity of the marriage
the Directive are clos
not to be considered
22
The right to marry is recognised by the ECHR and the EU Charter of Fundamental
Rights.
integration
of migran
The latter stipulates that "the right to marry and the right to found a family
shall
be
Justice's interpretation
guaranteed in accordance with the national laws governing the exercise of has
theserecognised
rights". the e
This provision protects the right of third country nationals to get married in states'
EU member
margins of ma
states but recalls that the exercise of this right is framed by national legislation. As a
consequence, governments have adopted rules regarding marriages that should be
celebrated
Family
migration rule
in EU member states (1) and marriages that have already been celebrated,
Onmostly
the onein
hand, thi
the country of origin (2).
level, and on the othe
vice versa.
21.
22.
23
Family reunification
policies and modifica
ECJ 4 March 2010, Rhimou Chakroun, Case C-57/08, point 43.
and European
European Convention of Human Rights, Article 12 on the right to marry – "Men and women of marriageable
age have level a
(I).
However,
such a s
the right to marry and to found a family, according to the national laws governing the exercise of this right".
3
23
1. Marriages INTRODUCTION
celebrated in EU member states
GENERAL
Documents required before marriage
Migration policies among EU member states have undergone major changes in recent decades,
All of have
the member
states surveyed
askfamily
third country
provide documents before
which
had a significant
impact on
migrationnationals
rules andtopolicies.
the marriage takes place.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
Primarymigration
among policies.
these is the
to provide
a birth certificate,
requested
in
labour
As aobligation
consequence,
family reunification
becamewhich
one ofisthe
main ways
Belgium
,
France
,
the
Netherlands
,
Poland
,
Portugal
eight
of
the
nine
states
analysed
(
to legally enter EU member states. Figures in some EU countries confirm that the majority of,
Sloveniaentered
, Spain for
andthe
Sweden
). of
In family
Sweden
, providing a birth certificate is part of a general
migrants
purpose
reunification.
rule where applicants have to prove their identity. In this regard, the identity is proved with
a passport, birth
certificate
or likewise.
Meanwhile,
the issue
of family
reunification has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
Sevento member
ask future
spouses
to the
produce
a certificate
that they
are not
right
family lifestates
represented
a first
step. On
basis of
Article 8 ofproving
the European
Convention
Belgium
,
France
,
the
Netherlands
,
Poland
,
Slovenia
,
Spain
and
married
or
divorced
(
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
Sweden
)
or
that
the
former
spouse
is
dead
(
Spain
).
Such
proof
may
in
certain
states
be
precisely, the right to family life has been used as a strong and successful argument against
accompanied
by
a
certificate
issued
by
the
country
of
origin
attesting
that
he
and/or
she
has
expulsion procedures in member states. It has also been successful in cases regarding the
the capacity
to engage
into
a marriage or a further marriage (Belgium, Poland, Portugal and
admission
of third
country
nationals.
Slovenia). France is quite demanding when it comes proving divorces pronounced in a third
country.
official
decisionatmust
be accompanied
by aWith
translation
made
by anofexpert
and
A
secondThe
major
step occurred
European
level after 1999.
the entry
into force
the Treaty
by
proof
of
its
definitive
nature
i.e.
all
potential
remedies
have
been
exhausted
and
the
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
certificate
produced
by
the
foreign
authority
or
other
competent
body.
On
the
contrary,
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
Sweden is the
more
flexible.for
Inexercising
every case
applicant
intendsfor
to third
marry
or enter
into a
determines
conditions
thewhere
right toanfamily
reunification
country
nationals
cohabiting
relationship
with
a
sponsor,
the
applicant
is
asked
if
he/she
is
or
has
residing lawfully on the territory of an EU member state. Since then, several rules related tobeen
the
previously for
married
or has
a cohabiting– as
partner.
The
Migration
conditions
exercising
thebeen
right previously
to family reunification
well as
rights
derivingBoard
from can
this
therefore
demand
the applicant
to rules,
provide
a certificate
proving
the rules
applicant's
civil status.
status
– have
been embedded
in EU
which
impact upon
national
and practices.
According to the internal handbook that is applied by the Migration Board, it is natural that
the applicant
and sponsor
has ended
previous
relationships
marriages
the
However,
the novelty
introduced
by theany
Treaty
of Amsterdam
goesormuch
furtherbefore
than the
applicant
can
be
granted
a
residence
permit
because
of
the
seriousness
of
the
new
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
relationship.
Theclosely
handbook
that in some
cultures Init this
canview,
be difficult
to obtain
the
Directive are
linkednotices
to the integration
of migrants.
the Directive
shoulda
divorce
and
a
permit
may
be
granted
anyway
but
it
has
to
be
clear
that
there
are
not to be considered as a tool to manage migration but rather as a means of enhancinggreat
the
difficulties of
to obtain
and thatinthe
spouses
are no longer
living
integration
migrantsa divorce
legally residing
their
host society.
Secondly,
thetogether.
European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
The recognised
obligation the
to produce
or to prove
identity
a criterion
that is
has
existenceanofidentity
the rightcard/passport
to family reunification
and
firmly isdelineated
member
France
,
Poland
,
Portugal
,
Slovenia
and
Spain
).
In
Belgium
,
the
law
asks
largely
shared
(
states' margins of manoeuvre.
future spouses to provide proof of nationality. It can be proved on the basis of an ID card, a
passport
or a certificate
of nationality
delivered
by authorities
fromfor
thealmost
country
origin.
In
Family
migration
rules and
policies have
been constantly
modified
40ofyears
now.
practice,
however,
passports
and
ID
cards
serve
as
a
proof.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
A birth
certificate,
proof that spouses are entitled to get married because they are not married
vice
versa
.
or divorced, and proof of identity must generally be provided by the persons concerned.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
Alongside
common features,
member
states demonstrate
some differences.
Somenational
require
policies
andthese
modifications
have been
very important
in the last couple
of years at both
Belgium
,
France
,
Spain
),
including
the
persons
concerned
to
provide
proof
of
residence
(
and European level and explain why a new study on conditions for family reunification is timely
Franceto), beresidence
(Poland
) or work
permits
residence
witnesses
(I).
However,ofsuch
a study (needs
delineatedpermits
(II) and its
methodology
defined
(III). (France).
324
24
Differences also exist among member states with regard to the obligation to legalise
requested INTRO
GENERAL
documents (Belgium, France, Slovenia and Spain) and to translate them (France, Spain).
In conclusion, the right to marry may lead to very different situations. From very
flexible
Migration
policies am
rules, such as in Sweden, to more demanding ones, the position of third country
nationals
which
have had a sig
with regard to this right is different from one state to another. Where the conditions and proof
are very demanding, they could have a negative impact on the right to marry and
therefore
Firstly,
the 1970s oil c
on the right to family reunification.
labour migration poli
to legally enter EU m
migrants entered for t
In this regard, member states should be prevented from using rules relating to marriages
for other means than those necessary to attest the identity and status of future
spousesthe issue
Meanwhile,
and their ability to get married. In other words, rules on marriages shall not be
adopted
The growinginimpact o
order to limit family reunification. If this were the case, such an approach would
right tobreach
family life rep
Directive 2003/86/EC.
on Human rights, the
precisely, the right to
expulsion procedure
admission of third co
In certain situations, national authorities are entitled, on the basis of a defined procedure, to
refuse the celebration of a marriage because it is deemed to have been concluded
for means
A second
major step o
other than engaging in a lasting living community.
of Amsterdam, the Eu
Grounds to prevent the celebration of marriages
this basis, it adopted
This type of rule does not apparently exist in Germany and Poland. In Poland, determines
however, the
the condit
celebration of a wedding may only be refused due to a lack of valid documents.
There is
no on t
residing
lawfully
legal basis to refuse a marriage in situations where the competent officer suspects
thatfor
a exerci
conditions
marriage is one of convenience. This aspect is verified during the application procedure
for
status – have been em
a residence permit for a fixed period in accordance with the Act on Aliens. In this regard, it
is impossible under Polish law to apply for a visa "in order to get married".
However, the novelt
'technical' adoption o
In the other member states, however, rules are applicable in order to prevent the celebration
ofare clos
the Directive
marriage. They define the grounds and procedures that prevent the celebration of marriage.
The
not to be considered
main grounds for rejecting the celebration of a wedding are two-fold: objective and
subjective.
integration
of migran
Justice's interpretation
Objective grounds are those which entitle authorities to reject the celebration of
marriage the e
hasa recognised
because the future spouses do not fulfil the requested conditions or qualitiesstates'
required
by of ma
margins
law (Belgium, France, the Netherlands, Portugal and Slovenia). Belgian law remains
quite vague on this point. It indicates that a marriage should be refused when Family
it seems
that
migration
rule
the qualities and conditions for concluding it have not been satisfied, and
where
the
On the one
hand, thi
celebration of the wedding contradicts the principles of law and public order.level,
Other
andrules
on the othe
are clearer and allow the identification of a series of objective criteria that may
lead
vice versato
. a
refusal to celebrate the wedding. France, Portugal and Slovenia focus for instance on the
validity or absence of documents to be provided. In the Netherlands and France,
elements
Family
reunification
regarding the residence of the spouses are also taken into account. Slovenian
rules
aremodifica
policies and
interesting, as they are very precise and provide for a list of objective grounds.
Hence,
and European level a
persons concerned should be of the opposite sex, above the age of 18 years old, (I).
notHowever,
seriouslysuch a s
25
3
25
or mentally insane,
single and not engaged to relatives (brothers, sisters, uncles, nieces, aunts
GENERAL
INTRODUCTION
and nephews, children of brothers and sisters, stepbrothers and stepsisters, adopting parents
and adopted children, guardians and persons put under his or her guardianship). In Slovenia
and elsewhere
where
the EU
rules
are worded
broadly, allmajor
these changes
factors may
lead to
refusal
Migration
policies
among
member
states more
have undergone
in recent
decades,
to
celebrate
the
marriage.
which have had a significant impact on family migration rules and policies.
Subjective
grounds
are based
on tremendous
the lack of change.
intentionIt drove
to marry.
This states
criterion
is shared
by a
Firstly,
the 1970s
oil crisis
triggered
member
to adopt
restrictive
majority
of
member
states
(Belgium,
France,
the
Netherlands,
Slovenia,
Spain
and
labour migration policies. As a consequence, family reunification became one of the main ways
Sweden),
with
the
exception
of
Portugal,
where
such
grounds
do
not
expressly
appear
in
to legally enter EU member states. Figures in some EU countries confirm that the majoritythe
of
law. Hereentered
again,for
thethe
rules
are more
or less
precisely defined. Whereas in some states the law
migrants
purpose
of family
reunification.
mentions this criterion in broad terms (Belgium and the Netherlands), others give more
detailed indications.
is the
case in Slovenia,
where in
theimportance
free will to
get married
is
Meanwhile,
the issue ofThis
family
reunification
has been gaining
at European
level.
accompanied
by
the
condition
that
the
person
should
not
be
mistaken
about
the
identity
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
or other
characteristic
of thea first
other
person
he/she
engage
France, Convention
Spain and
right
to family
life represented
step.
On the
basis will
of Article
8 ofwith.
the European
Sweden
base
their
appraisal
of
the
validity
of
the
future
marriage
and
intention
to
marry
on
on Human rights, the Court has framed and limited member states' room for manoeuvre.
More
a
body
of
evidence
that
interestingly
is
quite
similar.
Indeed,
these
member
states
assess
precisely, the right to family life has been used as a strong and successful argument against
the seriousness
of theinrelationship
in order
identify
intentionintocases
marry.
The length
expulsion
procedures
member states.
It hasto also
beenthe
successful
regarding
the
of
previous
relationships,
command
of
a
common
language
to
communicate
in,
knowledge
admission of third country nationals.
of each others' data, false addresses, and the existence of previous simulated marriages
are
among
thestep
grounds
used
to assess level
whether
the marriage
of into
convenience
not.
A
second
major
occurred
at European
after 1999.
With the is
entry
force of theorTreaty
It
should
however
be
underlined
that
in
Sweden,
if
future
spouses
prove
they
have
lived
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
together
on aa Directive
permanent
with
common
household,
practice(2003/86/EC)
for at least
this
basis,abroad
it adopted
on basis
the right
to afamily
reunification.
Thisin
Directive
two
years,
the
applicant
has
got
the
same
right
to
family
reunification
in
Sweden
if they
determines the conditions for exercising the right to family reunification for third country as
nationals
had
been
married.
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
Procedures
prevent
the celebration
of which
marriages
status
– haveto
been
embedded
in EU rules,
impact upon national rules and practices.
As regardsthe
national
allTreaty
involve
authorities,
are responsible
However,
noveltyprocedures,
introduced they
by the
of local
Amsterdam
goes which
much further
than the
for
evaluating
or
initiating
procedures
whenever
doubts
exist
regarding
the the
validity
of
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly,
roots of
the
marriage.
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
In Belgium,ofif migrants
there arelegally
seriousresiding
concerns
conditions
for the marriage
are not satisfied,
integration
in that
theirthe
host
society. Secondly,
the European
Court of
the
officer
can
defer
the
celebration
of
marriage
for
a
maximum
period
of
two
months
in order
Justice's interpretation of the Directive has played a strong role in giving it a crucial
dimension:
it
to
proceed
with
an
investigation.
Within
this
period,
the
officer
may
collect
the
opinion
of the
has recognised the existence of the right to family reunification and firmly delineated member
publicmargins
prosecutor
of the judicial district in which the applicants intend to contract the
states'
of manoeuvre.
marriage. If no decision has been taken within the two-month period, the officer has to
celebrate
the marriage.
In the
eventhave
of abeen
refusal
to celebrate
the wedding,
must
Family
migration
rules and
policies
constantly
modified
for almostthe
40officer
years now.
immediately
notify
the
interested
parties
of
his
decision.
A
copy
of
this
decision,
accompanied
On the one hand, this is due to the modification of migration policies at national and European
by copies
any
other
useful
documents,
are transmitted
to the public
prosecutor
of the
level,
and onofthe
other,
to the
impact
of family reunification
on migration
flows and
most probably
judicial
district
in
which
the
refusal
was
expressed.
vice versa.
In France,
when theiscivil
officer in
charge
the marriage
has doubts
about the
Family
reunification
a sensitive
issue
thatofis celebrating
subject to changing
landscapes.
Ever-evolving
intention
to
marry,
he/she
has
to
organise
an
interview
with
the
future
spouses,
individually
policies and modifications have been very important in the last couple of years at both national
and European
in common,
in order
gather
regarding for
thefamily
validity
of the marriage.
and
level and
explaintowhy
a newevidence
study on conditions
reunification
is timely
The
interview
should
target
the
intention
to
marry
on
the
basis
of
confession
and
of objective
(I). However, such a study needs to be delineated (II) and its methodology defined
(III).
326
26
information, such as knowledge of addresses or knowledge of common language,
etc. INTRO
GENERAL
The civil officer may also refer the case to the public prosecutor. The prosecutor must within
15 days decide to refuse, defer or accept the marriage. Different elements are taken
into account, such as the place of residence, matrimonial capacity and willingness
to
Migration policies
am
get married. In any case, the civil officer may not on his/her own refuse which
to celebrate
have had a sig
the wedding. Jurisprudence has also pointed out that the irregularity of the sojourn in
France may not constitute grounds for rejecting the celebration of the wedding.
Concerns
Firstly,
the 1970s oil c
regarding fraudulent marriages were at the centre of a law adopted in June labour
2011 migration
which
poli
reinforced these requirements.
to legally enter EU m
migrants entered for t
In the Netherlands, if one or both spouses or registered partners holds a nationality
other than Dutch, then the municipal officer of the Registry of Births, Deaths and
Marriagesthe issue
Meanwhile,
only cooperates with the conclusion or registration of a marriage if aThe
declaration
growing impact o
from the Superintendent of the police is submitted. In this declaration, right
information
to family life rep
regarding the residence of the immigrant is contained, as well as the advice
from the
on Human
rights, the
Superintendent to the municipal official on whether or not he should cooperate
in right to
precisely, the
concluding or registering the marriage. The Superintendent bases thisexpulsion
advice procedure
on
indications as to whether the marriage may or may not be one of convenience.
Negative
admission of third co
advice from the Superintendent needs to be justified and accompanied by a completed
questionnaire containing information regarding facts and circumstances,
such major
as step o
A second
residence and other observations, which may indicate that the marriageof Amsterdam,
is one of the Eu
convenience. Judgement of whether a marriage is a marriage of convenience
always
this basis,
it adopted
needs to be based on more than one observation. The sole fact that there
is
a
large
determines
the condit
difference in age between spouses, for example, is not enough to draw theresiding
conclusion
lawfully on t
that the marriage is one of convenience.
conditions for exerci
status – have been em
In Spain, persons in charge of the Civil Registry can subject the persons getting married
to "examinations of objective facts", through a personalised interview However,
in order the
to novelt
assess their knowledge of one other and certify the "complete moral certainty"
of
the
'technical' adoption o
civil servant who registers the union. This interview covers objective the
as Directive
well asare clos
subjective criteria in order to assess the validity of the marriage. In addition,
not to be the
considered
Public Prosecution Service may take preventive action through the supervision
of migran
integration of
proceedings being monitored for this purpose before the person in charge Justice's
of the interpretation
Civil
Registry. If the Public Prosecution Service knows of one of these simulated has
marriages,
it the e
recognised
must annul it. The Public Prosecution Service is also reminded of the
criminal
states' margins of ma
implications of this type of conduct which, in certain cases, can be classified as an
act involving the promotion, favouring or facilitation of illegal immigrationFamily
(trafficking).
migration rule
In such cases, once the marriage has been declared annulled due to simulation,
On the oneits
hand, thi
referral to the competent Court of Instruction is requested in orderlevel,
to and
initiate
on the othe
criminal proceedings.
vice versa.
In Sweden, if a relationship is not deemed to be serious according to the Swedish
Family Aliens
reunification
Act, the application for a residence permit can be rejected. The Migration Board
policieschecks
and modifica
how long the relationship has lasted, the extent to which the couple have
how level a
andmet,
European
much they know about each other and whether they have a common
language
(I). However, such a s
27
3
27
to communicate
in. The assessment
GENERAL
INTRODUCTION
is based on information given by the applicant and
the sponsor.
√ With
the exception
Germany
andhave
Poland,
every member
state under
scrutiny
has
Migration
policies
among EUofmember
states
undergone
major changes
in recent
decades,
ruleshad
thataentitle
national
authorities
to refuse
to marry
persons
whenever future spouses
which have
significant
impact
on family
migration
rules and
policies.
do not fulfil objective criteria or when there are doubts about the intention to marry.
√ the
The1970s
procedures
in each member
are different
one
Firstly,
oil crisisapplicable
triggered tremendous
change. Itstate,
drovehowever,
member states
to adoptfrom
restrictive
another. The
differences
concern the type
– investigations
or interviews
even
both
–
labour migration
policies.
As a consequence,
family
reunification became
one oforthe
main
ways
theenter
content,
the lengthstates.
and the
effects
the assessment.
to legally
EU member
Figures
in of
some
EU countries confirm that the majority of
√ Aentered
desire toforprevent
"marriages
of convenience"
migrants
the purpose
of family
reunification.governs such procedures. However, rules
adopted in this regard should only pursue this objective and shouldn't in any case be
used the
to curb
migration.
In other
member
states should
adopting
Meanwhile,
issue family
of family
reunification
has words,
been gaining
in importance
at avoid
European
level.
demanding
the nameCourt
of preventing
but which really
aim the
to
The growing
impactrules
of theinEuropean
of Human"sham
Rightsmarriages"
and its jurisprudence
regarding
reunification.
right to limit
familyfamily
life represented
a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
2. Marriages
celebrated
expulsion
procedures
in abroad
member states. It has also been successful in cases regarding the
admission of third country nationals.
Family reunification is awarded to the spouse regardless of where the wedding has taken
place.
As major
a consequence,
andatwith
the exception
Germany,
member
states
have
adopted
A
second
step occurred
European
level afterof
1999.
With the
entry into
force
of the
Treaty
rules
that
take
into
account
the
situation
in
which
a
marriage
was
concluded
in
a third
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
On
country.
rulesadetermine
thethe
documents
to bereunification.
presented to
justify
the marriage
and
this
basis,These
it adopted
Directive on
right to family
This
Directive
(2003/86/EC)
define the procedure
applicable
to assess
the validity
the marriage.
determines
the conditions
for exercising
the right
to familyofreunification
for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
Documentsfortoexercising
provide for
of a reunification
marriage concluded
third country
conditions
therecognition
right to family
– as wellinasa rights
deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
In the majority of the member states covered by the study, the official act (Belgium, France,
Poland, Slovenia
and introduced
Sweden) or
(the Netherlands
andfurther
Spain)
of the
the
However,
the novelty
by an
theofficial
Treaty copy
of Amsterdam
goes much
than
marriage
celebrated
abroad
must
be
produced.
In
Portugal,
this
does
not
seem
to
be
required.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
TheDirective
applicantare
must
only linked
providetoathe
document
thatofcertifies
thatInhe/she
is married
to the spouse,
the
closely
integration
migrants.
this view,
the Directive
should
such
as
an
identity
card
or
passport.
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
In Belgium,
France, Poland
and Sweden,
national
rulesrole
state
that the
or copy
must be
Justice's
interpretation
of the Directive
has played
a strong
in giving
it aact
crucial
dimension:
it
translated.
In
France,
implementing
rules
indicate
that
the
translation
must
be
made
by a
has recognised the existence of the right to family reunification and firmly delineated member
translator
appointed
by a Court of Appeal. In Sweden the act may be translated into English
states'
margins
of manoeuvre.
and, if possible, signed by a public notary or similar body in the third country. This rule is
interesting,
as it rules
favours
Indeed,
finding someone
is able
translate
Family
migration
and applicants.
policies have
been constantly
modified who
for almost
40 to
years
now.
documents
into
Swedish
might
be
far
more
difficult
than
finding
a
person
able
to
translate
from
On the one hand, this is due to the modification of migration policies at national and European
the
home
language
into
English.
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
As for verifying the validity of the documents presented, French, Slovenian and Swedish
rules indicate
that consular
or diplomatic
missions
are responsible.
instance,
Family
reunification
is a sensitive
issue that is
subject abroad
to changing
landscapes. For
Ever-evolving
Swedish
Embassies
and
Consulates
conduct
investigations
and
interviews
with
the
applicants
policies and modifications have been very important in the last couple of years at both national
to verify
the level
validity
the submitted
cohabitation
abroad
and whether
the
and
European
andofexplain
why a newdocuments,
study on conditions
for family
reunification
is timely
relationship
is
genuine.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
328
28
Procedures designed to assess the validity and sincerity of the marriage
GENERAL INTRO
Assessing the validity of the marriage, for example with regard to documents, or its sincerity
with regard to the intention to marry, is a concern shared by a significant majority
of member
Migration
policies am
states. As a consequence and with the exception of Poland and Germany, states have
whichadopted
have had a sig
rules to authorise competent bodies, on the one hand, to refuse to deliver a visa for the
purpose of family reunification and, on the other hand, to annul the wedding
Firstly, theafter
1970s oil c
reunification has taken place. In other words, procedures are put in place to
assess
the
labour
migration
poli
existence and lawfulness of the marriage before and after the arrival of the spouse
on
the
to legally enter EU m
territory of the member state. The differences between member states' rules are very
significant
migrants
entered for t
and do not allow us to outline categories of state that implement common schemes.
Meanwhile, the issue
In Belgium, when a so-called 'sham' wedding is suspected, the authorities The
in charge
growingofimpact o
immigration may refuse to deliver a visa. This occurs most of time after an inquiry
led
the life rep
right toby
family
civil prosecutor. An appeal against such a refusal may be introduced before the
civil
court.
on Human rights, the
Once on Belgian territory, the sincerity of the wedding is also subject to a seriesprecisely,
of checksthe
at right to
civic or administrative level. At civic level, checks are not automatic and theyexpulsion
are initiated
procedure
only after a complaint or request from the competent authority. As regards administrative
admission of third co
controls, they seek to assess the reality of common life. Moreover, the possibility to begin a
criminal prosecution when faced with evidence of a false 'white' wedding is always
possible.
A second
major step o
of Amsterdam, the Eu
to annul
In France, there are three grounds to assess the validity of a marriage and therefore
this basis,
it adopted
it. The first concerns weddings concluded on the basis of lack of consent, determines
a mistake or
the condit
violence. Challenging a marriage on these grounds is possible within a periodresiding
of five years
lawfully on t
after its celebration. The second chance to annul the marriage concerns conditions
marriages for
of exerci
convenience. Here, the action may be introduced 30 years after the celebration.
Such
status – haveabeen em
procedure is normally initiated by the public prosecutor. The conclusion of a marriage for the
sole purpose for obtaining a residence permit, for protection against expulsion or However,
for acquiring
the novelt
fine. The
French nationality is subject to a maximum of five years in prison and a €15,000
'technical'
adoption o
third possibility was introduced by a law adopted in 2011. It targets situations in the
which
where are clos
Directive
only one of the spouses hid his/her consent and purposes. In this case, the "misleading
not tospouse"
be considered
is subject to five years in prison and a fine of up to €15,000.
integration of migran
Justice's interpretation
In the Netherlands, the municipality official may refuse to register a marriage
hasconcluded
recognised the e
abroad on the basis of a declaration by the Superintendent. The declaration
states'contains
margins of ma
information regarding the residence of the immigrant and the Superintendent's advice for the
municipal official as to whether or not he should cooperate in registering the marriage.
The
Family migration
rule
Superintendent bases this advice on indications as to whether the marriage may
or
may
nothand, thi
On the one
be one of convenience. Negative advice from the Superintendent must be level,
justified
andand
on the othe
accompanied by a completed questionnaire containing information regarding
facts
vice versaand
.
circumstances, such as residence and other observations, which may indicate that the
marriage is one of convenience. Judgement of whether a marriage is of convenience
Familyalways
reunification
needs to be based on more than one observation. The sole fact that there is a large
difference
policies
and modifica
in age between the spouses, for example, is not enough to draw the conclusion
that the level a
and European
marriage is one of convenience. The municipal officers shall inform persons
of his/hersuch a s
(I). However,
29
3
29
intention to refuse
registration and offer them the opportunity to rebut the presumption of a
GENERAL
INTRODUCTION
marriage of convenience. If the official is not convinced by them, he/she may decide to refuse
registration. The persons who requested the registration can appeal against the refusal via a
civil procedure.
addition,
the Civil
Code
offers major
the opportunity
for thedecades,
public
Migration
policies In
among
EU member
states
have also
undergone
changes in recent
prosecutor
to
refuse
the
registration
on
grounds
of
public
order.
This
decision
is
also
subject
which have had a significant impact on family migration rules and policies.
to the right to appeal.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
In Portugal,
the policies.
Borders As
anda consequence,
Immigration Service
may, at any became
time, promote
enquiries
and
labour
migration
family reunification
one of the
main ways
specific
checks
aimed
at
evaluating
the
sincerity
of
the
wedding.
Enquiries
may
take
the
form
to legally enter EU member states. Figures in some EU countries confirm that the majority of
of an interview
thepurpose
alien. Should
thereunification.
competent authority find out that the wedding had
migrants
enteredwith
for the
of family
the sole purpose of allowing entry into and residence in Portugal, it may take the decision to
revoke the alien's
residence
permit.
Revocation
of thegaining
residence
permit mustatbe
reasonedlevel.
and
Meanwhile,
the issue
of family
reunification
has been
in importance
European
must
be
notified
to
the
alien.
The
latter
must
be
informed
of
the
judicial
remedies
available.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
right to family life represented a first step. On the basis of Article 8 of the European Convention
In Slovenia,
the State
Prosecutor's
Office
file member
a lawsuitstates'
to invalidate
marriage in
the
on
Human rights,
the Court
has framed
andmay
limited
room forthe
manoeuvre.
More
event
that
the
objective
and
subjective
conditions
are
not
fulfilled.
The
possibility
to
introduce
precisely, the right to family life has been used as a strong and successful argument against
such a lawsuit
is not subject
to any states.
statutory
The competent
authority that
expulsion
procedures
in member
It and
has time
also limitations.
been successful
in cases regarding
the
decides
on
such
a
situation
is
the
District
Court
where
the
family
lives.
Persons
concerned
by
admission of third country nationals.
such a decision may introduce an appeal to the higher court within a period of 15 days.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
In Amsterdam,
Spain, the existence
of aUnion
simulated
marriage
constitutesingrounds
its annulment.
of
the European
(EU) gained
competences
the fieldfor
of migration
issues.This
On
decision
is
taken
by
the
Public
Prosecution
Service.
The
Public
Prosecution
Service
is also
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
reminded of
criminalfor
implications
of this
of conduct
which,for
inthird
certain
cases,
can be
determines
thethe
conditions
exercising the
righttype
to family
reunification
country
nationals
classified
as
an
act
promoting,
favouring
or
facilitating
illegal
immigration.
In
these
cases,
the
residing lawfully on the territory of an EU member state. Since then, several rules related to the
annulment
of
the
marriage
is
referred
to
the
competent
Court
of
Instruction
in
order
to
initiate
conditions for exercising the right to family reunification – as well as rights deriving from this
the due
criminal
status
– have
beenproceedings.
embedded in EU rules, which impact upon national rules and practices.
Sweden isthe
a special
as the by
core
of the marriage
the
However,
novelty case
introduced
theevaluation
Treaty of Amsterdam
goes takes
much place
furtherduring
than the
procedure.
In
this
view,
checks
made
by
the
Swedish
authorities
abroad
and
the
Swedish
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
Migration
Board
in Sweden
aretovery
important of
and
thoroughly
documented.
The Migration
the
Directive
are closely
linked
the integration
migrants.
In this
view, the Directive
should
Board
is
obliged
to
ensure
that
the
case
is
being
sufficiently
investigated.
Hence,
the purpose
not to be considered as a tool to manage migration but rather as a means of enhancing
the
of the investigations
to verify
validity
of the the
submitted
documents,
integration
of migrantsand/or
legallyinterviews
residing inis their
host the
society.
Secondly,
European
Court of
the realinterpretation
nature of the
relationship
andplayed
cohabitation
abroad.
The itresidence
permit may
Justice's
of the
Directive has
a strong role
in giving
a crucial dimension:
it
therefore
be
refused
in
several
situations:
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
√ where the sponsor is married to another person and living with that person in Sweden;
√ where
the spouses
live together
or do
not intend
to do so;
Family
migration
rules do
andnot
policies
have been
constantly
modified
for almost 40 years now.
√
where
one
of
the
spouses
is
married
to
somebody
else;
On the one hand, this is due to the modification of migration policies at national and European
√ where
one
the spouses
is a minor,
and;
level,
and on
theofother,
to the impact
of family
reunification on migration flows and most probably
√
where
the
applicant
or
the
sponsor
has
knowingly given false information or where they
vice versa.
did not give certain information significant for obtaining the permit.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
If the Migration
Board finds
that
thevery
marriage
is not
legal
Sweden,
it does
not have
the
policies
and modifications
have
been
important
in the
lastincouple
of years
at both
national
authority
to
cancel
a
wedding
but
can
refuse
to
grant
family
reunification
and
a
residence
and European level and explain why a new study on conditions for family reunification is timely
permit.
If thesuch
applicant
and
sponsor
prove
of their marriage,
the Migration
(I).
However,
a study
needs
to becannot
delineated
(II)the
andvalidity
its methodology
defined (III).
330
30
Board assesses the seriousness of the relationship. If the relationship seems serious
according INTRO
GENERAL
to the Swedish Aliens Act, the applicant will get a time-limited residence permit due to the
seriousness of the relationship. The applicant may afterwards apply for a permanent
residence permit. During this examination, the Migration Board assesses Migration
whether policies
the
am
relationship will continue. If the alien has held a temporary residence permit for
two
years,
which have had a sig
he/she may be granted a permanent residence permit. As a general rule, the application for
family reunification should be decided within nine months. A decision to refuse
to grant
a oil c
Firstly,
the 1970s
residence permit for family reunification can be challenged before a migration
court,
and
labour migration poli
afterwards and under specific circumstances before the Migration Court of Appeal.
to legally enter EU m
migrants entered for t
The period within which checks on the validity and sincerity of a marriage may be carried
forthe issue
out varies widely. In Sweden, checks are very strong during the application procedure
Meanwhile,
family reunification. Once the reality and validity of the marriage has been assessed
and
The growing impact o
ascertained, national authorities do not reverse this decision. On the contrary,
rightinto some
family life rep
member states checks of the validity of the marriage may be organised over
long
on very
Human
rights, the
periods. This is the case in France, where for marriages of convenience theprecisely,
checks are
the right to
carried out over a 30-year period, and in Slovenia, where no limits are set by expulsion
the law. procedure
admission of third co
Sanctions against marriages of convenience are also very different. In Sweden, because the
procedure takes place before entry into Swedish territory, the authorities do not
delivermajor
a step o
A second
residence permit for family reunification. In Portugal, whenever a marriage of convenience
of Amsterdam, the Eu
is discovered, the residence permit is withdrawn. On the contrary, in Belgium,
thisFrance
basis, itoradopted
Spain, the discovery of marriages of convenience may trigger criminal proceedings.
Heavy
determines
the condit
fines and imprisonment are among the sentences that people may face for theresiding
purpose
of
lawfully
on t
fighting 'sham weddings'.
conditions for exerci
status – have been em
To sum up, member states are divided into two different categories: those which organise
'balanced' procedures in time and impact, and those which conduct strict checks
leading
However,
the novelt
to hard sanctions.
'technical' adoption o
the Directive are clos
In such a situation, harmonisation between member states may be difficult to attain.
not toOn
bethe
considered
one hand, some member states are reluctant to make their rules less strict. On
the
other
integration
of migran
hand, calling for a hardening of the rules on the basis of criminal law wouldJustice's
seem tointerpretation
be
difficult for other states. In this regard, it is questionable whether criminal sanctions
are the e
has recognised
appropriate and proportionate in this domain.
states' margins of ma
These questions may be touched upon during the consultation phase that will
take place
Family
migration rule
at the end of 2011 after the publication of the European Commission's Green
onhand, thi
On Paper
the one
family reunification.
level, and on the othe
vice versa.
II. Unmarried partners
Family reunification
policies and modifica
The right for unmarried partners to reunite mirrors changes occurring in society,
where level a
and European
partnerships are becoming just as important as and sometimes even more important
thansuch a s
(I). However,
31
3
31
marriages. In INTRODUCTION
this context, Directive 2003/86/EC could not ignore the phenomenon. But there
GENERAL
are significant differences between member states that are willing to adapt to this social
transformation and take it into account in national law (B) and those that are more reluctant
to do so (A).
Migration
policies among EU member states have undergone major changes in recent decades,
which have had a significant impact on family migration rules and policies.
As a result, the possibility to recognise partners' right to family reunification is enshrined in
the directive
butoilremains
an optional
provision
i.e.It drove
it is up
to member
decide
Firstly,
the 1970s
crisis triggered
tremendous
change.
member
states tostates
adoptto
restrictive
whether
or
not
to
include
partners
within
the
scope
of
rules
on
family
reunification.
Hence,
labour migration policies. As a consequence, family reunification became one of the main ways
Article
4, enter
paragraph
3 is worded
follows:
"the Member
Statesconfirm
may, bythat
lawthe
or majority
regulation,
to
legally
EU member
states.asFigures
in some
EU countries
of
authorise
the
entry
and
residence
(...)
of
the
unmarried
partner,
being
a
third
country
migrants entered for the purpose of family reunification.
national, with whom the sponsor is in a duly attested stable long term relation, or of a third
country national
whoofisfamily
boundreunification
to the sponsor
a registered
Meanwhile,
the issue
has by
been
gaining inpartnership
importance (...)".
at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
A. Member
not awarding
thestep.
rightOn
to the
family
unmarried
right
to familystates
life represented
a first
basisreunification
of Article 8 oftothe
Europeanpartners
Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
France and
Poland
do notliferecognise
family
of unmarried
precisely,
the right
to family
has been the
usedright
as a to
strong
and reunification
successful argument
against
partners.
The
possibility
exists
in
France
to
grant
a
residence
permit
to
an
unmarried
partner.
expulsion procedures in member states. It has also been successful in cases regarding
the
But such aof possibility
is nationals.
awarded on the basis of the respect of family life, protected by
admission
third country
Article 8 of the ECHR, and not on the basis of Directive 2003/86/EC. French legislation
indicates
that step
a residence
permit
maylevel
be after
delivered
to a the
foreigner
who
personal
A
second major
occurred at
European
1999. With
entry into
forcehas
of the
Treaty
and
familial
links
in
France
and
for
whom
refusal
to
issue
a
residence
permit
may
constitute
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
a disproportionate
on his/her
right totofamily
familyreunification.
life. The law
the links
this
basis, it adopted attack
a Directive
on the right
Thisspecifies
Directivethat
(2003/86/EC)
should
be
assessed
on
the
basis
of
their
strength,
age
and
stability,
with
regard
to the
determines the conditions for exercising the right to family reunification for third country nationals
individual's
living
conditions
and
his/her
insertion
into
French
society,
as
well
as
the
nature
residing lawfully on the territory of an EU member state. Since then, several rules related to the
of links with
thatthe
remain
in family
the country
of origin.
adopted
in June
conditions
for family
exercising
right to
reunification
– as The
welllaw
as rights
deriving
from2011
this
reinforced
these
requirements.
status – have been embedded in EU rules, which impact upon national rules and practices.
B. Memberthestates
where
unmarried
areofentitled
to family
However,
novelty
introduced
by partners
the Treaty
Amsterdam
goesreunification
much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
In seven
of the
member
have In
thethis
right
to family
reunification.
the
Directive
arenine
closely
linkedstates
to theexamined,
integrationpartners
of migrants.
view,
the Directive
should
This
right
is
brand
new
in
Slovenia
and
will
take
effect
in
October
2011.
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
However,
the rules applicable
in these
Some
areitflexible
this regard,
Justice's
interpretation
of the Directive
has states
playeddiffer.
a strong
role states
in giving
a crucialindimension:
it
whereas
others
have
a
more
narrow
perception
of
the
phenomenon.
Countries
may be
has recognised the existence of the right to family reunification and firmly delineated member
divided
into two
categories: those that rely exclusively on the conclusion of a registered
states'
margins
of manoeuvre.
partnership and those that take into account a stable relationship comparable to that of
marriedmigration
couples. rules and policies have been constantly modified for almost 40 years now.
Family
On the one hand, this is due to the modification of migration policies at national and European
Germany
and
onlyofmember
states underon
scrutiny
thatflows
limitand
the most
right probably
to family
level,
and on
theBelgium
other, toare
thethe
impact
family reunification
migration
reunification
to
registered
partners.
In
Germany,
partners
have
to
fulfil
a
range
of
vice versa.
commitments by way of formal agreement to form a partnership. The rules in this regard are
more precisely
determined
at regional
Family
reunification
is a sensitive
issue level.
that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
Belgium
takes
into
two a types
of registered
partnership.
On the oneis timely
hand,
and
European
level
andaccount
explain why
new study
on conditions
for family reunification
partnerships
concluded
under
Danish,
German,
Finnish,
Icelandic,
Norwegian,
English
and
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
332
32
Swedish law. These partnerships are considered to be comparable to marriage and
trigger the INTRO
GENERAL
same effects. On the other hand, Belgian law recognises any other registered partnership
concluded in conformity with the country's law. However, to open up the right to family
reunification, such a partnership must be accompanied by proof that the concerned
persons
Migration
policies am
have a long and stable relationship. This condition is fulfilled as follows:
which have had a sig
√ the partners have lived together for at least one year in Belgium or elsewhere,
or; the 1970s oil c
Firstly,
√ the partners know each other for at least one year and exchange regular contact
labour(phone
migration poli
calls, letters or e-mails). They met at least three times before introducing thetoapplication
legally enter EU m
for family reunification and these meetings number more than 45 days, or; migrants entered for t
√ the partners have a child in common.
Meanwhile, the issue
Belgian law specifies that both partners shall live together and be aged over 21 years
old. Theimpact o
The growing
age is brought back to 18 years old if the partnership equivalent to marriage was
concluded
right to family life rep
before the arrival of the sponsor in Belgium or if they were living together foron
at Human
least one
rights, the
year before the arrival of the first person in Belgium.
precisely, the right to
expulsion procedure
All the other five member states – the Netherlands, Portugal, Slovenia, Spain and
Swedenof–third co
admission
have a broader understanding of the phenomenon. A stable relationship is considered as a
partnership which can open the right to family reunification. Here, differences
exist with
A second
major step o
regard to the proof that has to be provided.
of Amsterdam, the Eu
this basis, it adopted
In the Netherlands, unmarried partners are offered family reunification when thedetermines
relationship
the condit
is sufficiently comparable to a marriage. This concerns unmarried partners who can
provelawfully
they
residing
on t
have been in a permanent and exclusive relationship with the sponsor. Thisconditions
implies that
for exerci
partners must have lived together and shared the same household before enteringstatus
the country
– have been em
or must start to do so once the partner has entered the Netherlands. In this view, the partner
must be registered at the same address at the administration. From an administrative
pointthe
of novelt
However,
view, partners have also to provide a copy of their unmarried status declaration. They
can
also
'technical' adoption o
demonstrate their sustainable and exclusive relationship by singing a declaration
ofare clos
the Directive
relationship. However, such a declaration does not constitute absolute proof.
A
bill
has
not to be considered
recently been presented to the parliament in which family reunification is
no longer
integration
of migran
applicable to unmarried partners. Homosexual partners who are not allowed to marry
in interpretation
their
Justice's
country, can apply for a visa in order to marry in the Netherlands.
has recognised the e
states' margins of ma
In Portugal, registered partners, persons who prove that they have lived together for a period
of two years previously and persons who have a common child are entitled
to family
Family
migration rule
reunification by law. This indicates that any kind of legally admissible evidenceOn
attesting
thehand, thi
the one
relationship can serve as proof. If the relationship is proven by a declaration issued
by
thethe othe
level, and on
Portuguese local authorities of the area of residence of the applicants, the latter
must
also
vice versa.
present a copy of their birth certificates and declare under oath that they have been living
together for more than two years.
Family reunification
policies and modifica
In Slovenia, registered partners and partners with whom the sponsor has been
in a level a
andliving
European
long-lasting life community will be added to the list of close family members for
whom
thesuch a s
(I). However,
33
3
33
sponsor can claim
family reunification rights. However, to invoke these rights they will have
GENERAL
INTRODUCTION
to wait until 27 October 2011. Until this date sponsors will be able to claim this right only
for spouses, according to the 1999 Aliens Act, which is currently still in use.
Migration policies among EU member states have undergone major changes in recent decades,
In Spain,
2009, registered
unregistered
partners
have the right to family
which
have since
had a significant
impact onand
family
migration rules
and policies.
reunification. For the first category, applicants have to bring the certified copy of such
registration.
Unregistered
partnerstremendous
must have change.
cohabited
together
at least
two
the
Firstly,
the 1970s
oil crisis triggered
It drove
member
states
toyears
adoptbefore
restrictive
arrival
of
the
sponsor
in
Spain.
The
validity
of
such
a
relationship
must
then
be
proven
by
any
labour migration policies. As a consequence, family reunification became one of the main ways
means.
instance,
on thestates.
basis of
testimony
brought
by two witnesses
or on
basis of
of
to
legallyFor
enter
EU member
Figures
in some
EU countries
confirm that
the the
majority
registration
at
the
same
household.
However,
it
is
specified
that
documents
issued
by
public
migrants entered for the purpose of family reunification.
authorities take priority over any other type of proof.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
In Sweden,
registered
partners,
cohabiting
partners,
heterosexual
and same regarding
sex couples
The
growing impact
of the
European
Court of Human
Rights
and its jurisprudence
the
have
the
right
to
family
reunification.
The
rules
regarding
cohabitation
indicate
that
partners
right to family life represented a first step. On the basis of Article 8 of the European Convention
must
be living
together
as a has
couple
on aand
permanent
basis in states'
a common
According
on
Human
rights,
the Court
framed
limited member
roomhousehold.
for manoeuvre.
More
to
the
internal
handbook
that
is
applied
by
the
Migration
Board,
documents
proving
the
precisely, the right to family life has been used as a strong and successful argument that
against
couple
are
cohabiting
partners
include
a
rental
agreement
or
a
contract
of
sale
regarding
a
coexpulsion procedures in member states. It has also been successful in cases regarding the
operative flat
or house.
Common
insurance policies can also prove cohabitation as partners.
admission
of third
country
nationals.
All documents proving the applicant and the sponsor's cohabitation abroad can be submitted
too.
It is worth
that a common
childlevel
is a after
presumption
thatthe
a partnership
exists.
It should
A
second
majornoting
step occurred
at European
1999. With
entry into force
of the
Treaty
be
added
that
Swedish
rules
also
take
into
account
the
possibility
to
grant
a
residence
permit
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
On
to an
alienit who
intends
to marryonorthe
enter
a cohabiting
relationship
with a person
who is
this
basis,
adopted
a Directive
rightinto
to family
reunification.
This Directive
(2003/86/EC)
resident in the
Sweden
or who
has been the
granted
a residence
permit tofor
settle
Sweden,
if the
determines
conditions
for exercising
right to
family reunification
thirdin
country
nationals
relationship
appears
to
be
serious
and
there
are
no
special
grounds
to
refuse
a
permit.
In
residing lawfully on the territory of an EU member state. Since then, several rules related to this
the
regard, thefor
Migration
Board
long the –relationship
lasted,
if the
couple
conditions
exercising
the should
right to check
familyhow
reunification
as well as has
rights
deriving
from
this
have met
to some
extent, howinmuch
theywhich
know impact
about each
andrules
if they
have
a common
status
– have
been embedded
EU rules,
uponother
national
and
practices.
language in which to communicate. If the couple have lived together abroad on a permanent
basis in a common
household,
in practice
at least
two years, the
applicant
enjoys the
However,
the novelty
introduced
by the for
Treaty
of Amsterdam
goes
much further
thansame
the
right
to
family
reunification
in
Sweden
as
if
they
were
married,
provided
that
the
applicant
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
andDirective
sponsor can
prove their
cohabitation
abroad.
the
are closely
linked
to the integration
of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
C. Checking
validity
of theresiding
partnership
integration
of the
migrants
legally
in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
Among
the seven
member of
states
that to
award
reunification
to partners,
Germany,
has
recognised
the existence
the right
familyfamily
reunification
and firmly
delineated
member
the
Netherlands,
Slovenia
and
Spain
have
not
established
any
specific
procedure
to check
states' margins of manoeuvre.
the validity of the partnership. However, this does not mean that there is no check at all.
Indeed,migration
while the
authorities
are have
examining
the application,
are conducting
an
Family
rules
and policies
been constantly
modified they
for almost
40 years now.
evaluation
of
the
validity
of
the
relationship.
This
derives
clearly
from
the
Dutch
report,
On the one hand, this is due to the modification of migration policies at national and European
whichand
indicates
that the
Immigration
and Naturalisation
Service
conducts
an most
assessment
of
level,
on the other,
to the
impact of family
reunification on
migration
flows and
probably
the
relationship
when
examining
the
eligibility
of
the
application.
vice versa.
A similar
statement isderives
fromissue
the Portuguese
example.
Herelandscapes.
and whenever
deemed
Family
reunification
a sensitive
that is subject
to changing
Ever-evolving
necessary,
the
law
gives
the
Borders
and
Immigration
Service
the
power
to
organise
policies and modifications have been very important in the last couple of years at both national
interviews
with
theand
applicant
hisafamily
and conduct
any other
appropriate
investigations
and
European
level
explainorwhy
new study
on conditions
for family
reunification
is timely
necessary
to
evaluate
the
validity
of
the
relationship.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
334
34
The same logic applies in Sweden, where the Migration Board is obliged to ensure
that the INTRO
GENERAL
case is sufficiently investigated. Hence, the Swedish Embassies and Consulates conduct
interviews with the applicants and the Migration Board conducts interviews with the sponsor,
if needed. The purpose of the investigations and/or interviews is to verify the validity
of policies
the
Migration
am
submitted documents, the nature of the relationship and cohabitation abroad. which have had a sig
In Belgium, there are two different procedures to check the validity of the partnership.
From
Firstly, the
1970s oil c
assesses
the
an administrative point of view, the competent authority (office des étrangers)labour
migration
poli
reality of common life. This type of check is normally carried out during the examination
of EU m
to legally enter
the application. But, further unexpected checks may be launched by the administrative
migrants entered for t
authority to verify the reality of common life. The second type of check is a civic one and is
initiated on the basis of complaints or at the administration's request. Here, an
appointedthe issue
Meanwhile,
a priori
andimpact o
local officer verifies whether the cohabitation still exists. Belgian law organisesThe
growing
a posteriori checks.
right to family life rep
on Human rights, the
Checks operated by national authorities would appear to be generally conducted
during the
the right to
precisely,
application procedure. Further checks, once the partner is admitted on the territory,
are
less
expulsion procedure
common. This situation must be compared with rules regarding checks applicable
admission oftothird co
marriages. In Portugal, for instance, the validity of marriage may be verified after entry onto
the territory, which does not seem to be the case for partners. Further questions
regarding
A second
major step o
family reunification rights awarded to partners may touch upon the question of
the
scope, the Eu
of Amsterdam,
intensity and effects of checks of the relationship.
this basis, it adopted
determines the condit
Two categories exist among member states regarding recognising the right
to family
residing
lawfully on t
reunification of unmarried partners.
conditions for exerci
status – have been em
The first one concerns states (Germany and Belgium) that only rely on a registered
partnership to allow family reunification. This limited possibility, compared
to those
However,
the novelt
recognising the right of partners living together in a stable relationship, may be'technical'
considered
adoption o
less liberal in the sense that it obliges partners to engage into an administrative
theprocedure
Directive are clos
to give a 'legal existence' to their common life. In this sense, it might be considered
as an
not to be
considered
additional step to be completed by partners. However, such a procedure may
be
veryof migran
integration
simple in practice. Some states do not impose any particular requirements, such
as a prior
Justice's
interpretation
period of common life, to be fulfilled before the registration. This is for instancehas
therecognised
case in the e
Belgium, where partners may decide to declare their 'common cohabitation' states'
at themargins
town of ma
office. This procedure does not require proof of any prior residence. In this regard,
registered partnerships are more liberal than schemes where proof of a prior Family
relationship
migration rule
must be provided.
On the one hand, thi
level, and on the othe
The second category concerns states that recognise the right to family reunification
of partners
vice
versa.
living together in a stable relationship. Here, differences are evident in the proof that must be
produced. From specific rules of proof, like in the Netherlands, to open systems,
in
Familylike
reunification
Portugal, the rules are different from one country to another and make family reunification
policies and modifica
either more or less difficult. The Swedish system deserves to be highlighted as aand
veryEuropean
liberal level a
(I). However, such a s
35
3
35
and protective
one as it awards partners, after two years of common residence, identical
GENERAL
INTRODUCTION
rights to those awarded to married couples.
To conclude,
these
examples
show that
rules
applicable
inmajor
the member
are still
very
Migration
policies
among
EU member
states
have
undergone
changesstates
in recent
decades,
different
and
for furtherimpact
benchmarking
which
have
hadcall
a significant
on family between
migrationcountries:
rules and policies.
√ the
Only
twooilofcrisis
the member
surveyed
(France
andmember
Poland)states
still oppose
right,
Firstly,
1970s
triggered states
tremendous
change.
It drove
to adoptthis
restrictive
since Slovenia
recently
opted to recognise
it.
labour migration
policies.
As a consequence,
family reunification
became one of the main ways
√ Some
rules states.
are very
flexible,
whereas
seek
to maintain
tight
control
to legally
enternational
EU member
Figures
in some
EU others
countries
confirm
that the
majority
of
over
this
issue.
migrants entered for the purpose of family reunification.
To move ahead,
two of
major
points
should drive
further
discussion
about unmarried
partners:
Meanwhile,
the issue
family
reunification
has been
gaining
in importance
at European
level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
family
reunification
of unmarried
partners
mandatory,
a small
number
right√to Making
family life
represented
a first step.
On the basis
of Article
8 of thesince
European
Convention
of
states
are
still
opposed
to
this
right.
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
√ Developing
extensive
benchmarking
and as
coordination
between
statesargument
to get a clearer
precisely,
the right to
family life
has been used
a strong and
successful
against
picture
of
the
'legal
landscape'
and
to
give
partners
similar
possibilities
and rightsthe
to
expulsion procedures in member states. It has also been successful in cases regarding
live
together.
admission of third country nationals.
of these
points
should beatdealt
withlevel
by the
consultation
is into
scheduled
at
AAll
second
major
step occurred
European
after
1999. With which
the entry
force oftothestart
Treaty
the
end
of
the
year
with
the
publication
of
the
Commission's
Green
Paper.
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines
the conditions for exercising the right to family reunification for third country nationals
III. Children
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions
for exercising
the right to
family reunification
– as well
as rights
deriving
from this
Article 4, paragraph
1 of Directive
2003/86/EC
grants children
the right
to family
reunification.
status
– have
been embedded
in EU rules,
which
national
rules and
This right
is recognised
in all member
states
withimpact
some upon
restrictions
regarding
thepractices.
age of minor
children and conditions regarding custody or adoption (A). Adult children may also be
However,
the by
novelty
by thereunification
Treaty of Amsterdam
goes much further than the
encompassed
rules introduced
related to family
(B).
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the
Directive
are closely linked to the integration of migrants. In this view, the Directive should
A. Minor
children
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration
legally
residing
in the
theirmember
host society.
European
Regarding of
themigrants
age of the
child,
eight of
statesSecondly,
surveyed the
recognise
theCourt
right of
to
Justice's
interpretationfor
of minor
the Directive
hasupplayed
strong
role
in givingisit the
a crucial
dimension:
it
family reunification
children
to 18 ayears
old.
Germany
only state
to move
has
recognised
existence
to family
and16firmly
member
away
from this the
general
rule. of
In the
thatright
member
state,reunification
children over
yearsdelineated
old have to
arrive
states'
margins
of manoeuvre.
with their
parents.
If they arrive independently from their parents after 16 years old, they have
to fulfil integration conditions. This means that they need to have high-level German
Family
migration
and policies
been ofconstantly
modified
almost
40that
years
language
skills orrules
to demonstrate
onhave
the basis
their education
andforway
of life
theynow.
are
On
the
one
hand,
this
is
due
to
the
modification
of
migration
policies
at
national
and
European
able to integrate into the German way of life.
level, and on the other, to the impact of family reunification on migration flows and most probably
vice
versa
.
As for
conditions
requested in cases where the parents are divorced or the children adopted,
they mainly rely on the obligation to have custody of the child in case of divorce and to
Family
is a sensitive
issue
that is subject
to changing
landscapes.
Ever-evolving
providereunification
the appropriate
certificate
of adoption.
Generally
speaking,
the French
rules are
policies
and
modifications
have
been
very
important
in
the
last
couple
of
years
at
both
national
a good example of the way the situation of minor children can be taken into account
and
and
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
timely
dealt with.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
336
36
In France, family reunification concerns minor children aged less than 18 years GENERAL
old when the INTRO
application is introduced. It includes the children of the couple, the children of the sponsor
or the spouse (including children from a previous relationship) and adopted children. For
children of the couple, the parents have to produce birth certificates. For adopted
children,
Migration
policies am
the application must be accompanied by the definitive decision of adoption. The
lawfulness
which have had a sig
of the decision is assessed by the public prosecutor. With regard to children born during a
previous relationship, the sponsor or the spouse shall have custody of the child
its oil c
Firstly,and
the 1970s
residence shall be with him/her according to a judicial decision. The other parent
shall
also
labour migration poli
give his/her approval of the reunification.
to legally enter EU m
migrants entered for t
Generally speaking, this domain has not been subject to major changes in the last few years.
Hence, detailed results provided in previous studies are still relevant.23
Meanwhile, the issue
The growing impact o
B. Adult children
right to family life rep
on Human rights, the
Reunification of adult children is possible under family reunification rules.
Directive
precisely,
the right to
2003/86/EC takes this possibility into account but in a limited manner.
On the
expulsion
procedure
one hand, the provision devoted to family reunification of adult childrenadmission
is optional.
of third co
On the other hand, it is accompanied by two additional criteria; adult children
must be "unmarried" and "objectively unable to provide for their own
needs major
on step o
A second
account of their state of health". However, nothing prevents member ofstates
from
Amsterdam, the Eu
implementing more favourable rules.
this basis, it adopted
determines the condit
With regard to the reports analysed, several member states – France, Poland,
and on t
residing lawfully
Portugal – did not make use of such a possibility. As a consequence, unmarried
adult
conditions for exerci
children can be authorised to join their parents, but such a possibility will notstatus
be awarded
– have been em
on the basis of family reunification rules but on other rules. On the contrary, six
member states allow family reunification for unmarried adult children on However,
the basis the
of novelt
the family reunification procedure.
'technical' adoption o
the Directive are clos
In Belgium, adult children of the sponsor or the spouse are authorisednotfor
family
to be
considered
reunification. Adult children should be more than 18 years old, single and handicapped.
integration of migran
Family reunification is allowed where the child is not able to satisfy Justice's
his/her interpretation
own
needs due to his/her handicap. The sponsor has to prove to have stable, has
regular
and the e
recognised
sufficient means of support to meet its own needs and those of his family.
states' margins of ma
In Germany, adult children may be entitled to family reunification under special
conditions.
Family
migration rule
On the one hand, thi
level, and on the othe
vice versa.
23. H. Labayle & Y. Pascouau, "Directive 2003/86/EC on the Right to Family Reunification", Study on the
"Conformity checking of the Transposition by Member States of 10 Directives in the Sector of Asylum and
Family reunification
Immigration" done for DG JLS of the European Commission, 2007 (contract JLS/B4/2006/03); K. Groenendijk,
R. Fernhout, D. van Dam, R. van Oers & T. Strik, "The Family Reunification Directive in EUpolicies
Member and
States.modifica
and
European
The First Year of Implementation", Centre for Migration Law, Willem-Jan and René van der Wolf level a
Publishers, 2007.
(I). However, such a s
37
3
37
In Slovenia, INTRODUCTION
the Aliens Act stipulates
GENERAL
that a sponsor is entitled to family reunification
with an adult unmarried child. There is no apparent specification in the rules with
regard to the health of the child. The Act includes an additional condition that
the sponsor
or his
or her
obliged
maintainmajor
the child
in in
accordance
with
Migration
policies
among
EU spouse
memberisstates
have to
undergone
changes
recent decades,
the
laws
of
the
country
of
nationality
of
the
sponsor
or
his
or
her
spouse,
which
which have had a significant impact on family migration rules and policies.
may be the case, for instance, in cases of intellectual or physical disabilities of
the child.
Firstly,
the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
Dutch
states, asstates.
is the
case in
in some
Directive
2003/86/EC,
that
unmarried
to
legallylegislation
enter EU member
Figures
EU countries
confirm
thatadult
the majority
of
children
of
the
sponsor
must
be
objectively
unable
to
provide
for
their
own
needs on
migrants entered for the purpose of family reunification.
account of their state of health. A circular defines more precisely the rules applicable to
such a situation.
Firstly,
the reunification
adult children
morally
and financially
dependent
Meanwhile,
the issue
of family
hasmust
been be
gaining
in importance
at European
level.
on
their
parents.
Such
dependence
must
previously
have
existed
in
the
country
of
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
origin.
Secondly,
the
circular
also
specifies
that
"a
real
family
relationship"
needs
to
right to family life represented a first step. On the basis of Article 8 of the European Convention
exist
between
the Court
parents
and the
adult member
child. This
the family
on
Human
rights, the
has framed
and limited
states' implies
room for that
manoeuvre.
More
relationship
must
already
have
existed
in
the
country
of
origin,
or
the
country
of
precisely, the right to family life has been used as a strong and successful argument
against
permanent
residence,
and
that
the
adult
child
must
come
to
live
with
his/her
parents.
expulsion procedures in member states. It has also been successful in cases regarding the
The circular
also country
determines
conditions under which the real relationship will cease to
admission
of third
nationals.
exist. Finally, refusing family reunification to adult children must not represent
"disproportionate
harshness".
Disproportionate
harshness
is only
constituted
in
A
second major step occurred
at European
level after 1999.
With the entry
into force
of the Treaty
extraordinary
situations
and
does
not
occur
in
general
circumstances
in
the
country
of
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
origin
or
in
the
fact
that
the
adult
child
will
remain
in
the
country
of
origin
as
the
sole
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
member ofthe
theconditions
family. for exercising the right to family reunification for third country nationals
determines
residing lawfully on the territory of an EU member state. Since then, several rules related to the
Spain's Aliens
Act adopted
implementation
rules
conditions
for exercising
the rightinto 2009
family and
reunification
– as well as
rightsadopted
deriving in
from2011
this
clearly
explain
that
adult
children
fall
under
the
scope
of
family
reunification
status – have been embedded in EU rules, which impact upon national rules and practices. rules
"when they are handicapped and not able to satisfy their own needs because of
their health".
However,
the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
In Directive
Sweden, are
a closely
residence
permit
be delivered
to Ina this
close
relative
of someone
the
linked
to the may
integration
of migrants.
view,
the Directive
should
who
is
resident
in
or
who
has
been
granted
a
residence
permit
to
settle
in Sweden.
not to be considered as a tool to manage migration but rather as a means of enhancing
the
Adult children
living with
parents
fall within
the scope
of this
Swedish
integration
of migrants
legallytheir
residing
in their
host society.
Secondly,
thedefinition.
European Court
of
rules indicate
that a special
relationship
of dependence
between
the
should have
Justice's
interpretation
of the Directive
has played
a strong role
in giving
it arelatives
crucial dimension:
it
existed
in the country
of origin.
thetoone
hand,
the dependence
between
the relatives
has
recognised
the existence
of theOn
right
family
reunification
and firmly
delineated
member
must make
for them to live apart. On the other hand, the adult child and
states'
marginsit ofdifficult
manoeuvre.
the sponsor must have lived in the same household immediately before the sponsor
moved migration
to Sweden
application
should
be submitted
afternow.
the
Family
rulesand
andthe
policies
have been
constantly
modified relatively
for almost soon
40 years
sponsor's
settlement
in
Sweden,
in
order
to
prove
the
dependence.
If
these
conditions
On the one hand, this is due to the modification of migration policies at national and European
are not
fulfilled
it maytobe
to family
prove reunification
the special relationship
dependency
between
level,
and
on the other,
thedifficult
impact of
on migrationof
flows
and most probably
the
sponsor
and
the
family
member.
However,
difficulties
in
applying
for
reunification
vice versa.
directly after the sponsor has settled in Sweden must be taken into account. Moreover,
the Aliens'
Act addsis that
if thereissue
are that
exceptional
a residence
permit
may also
Family
reunification
a sensitive
is subjectgrounds
to changing
landscapes.
Ever-evolving
be
granted
to
an
alien
who
was
adopted
in
Sweden
as
an
adult,
is
a
relative
of
alien
policies and modifications have been very important in the last couple of years at both an
national
who
is
a
refugee
or
a
person
otherwise
in
need
of
protection,
or
if
the
alien
in
some
other
and European level and explain why a new study on conditions for family reunification is timely
way
has special
with needs
Sweden.
(I).
However,
suchties
a study
to be delineated (II) and its methodology defined (III).
338
38
To summarise the family reunification of adult children:
GENERAL INTRO
√ Three member states – Belgium, the Netherlands and Spain – have transposed the
requirements defined by the directive related to the state of health of the adult
children.
Migration
policies am
√ The other member states rely either on the capacity of the sponsor to supportwhich
the children
have had a sig
or on pre-existing links and facts of dependence.
√ In Sweden, the rules seem more flexible than others as they are not limited
adult
Firstly,tothe
1970s oil c
unmarried children but more broadly open to any kind of relative.
labour migration poli
to legally enter EU m
migrants entered for t
C. Proof of links between parents and children
Meanwhile,
The existence of a link between parents and children is sometimes very difficult to
prove. Thisthe issue
concerns difficulties in gathering appropriate administrative documents attestingThe
thegrowing
link andimpact o
right toItfamily
the validity of such documents, which is sometimes contested by member states.
also life rep
on Human
rights, the
concerns member state rules which may make the proving process easier or more
difficult.
precisely,
the right to
It depends more precisely on the variety of means of proof accepted by the member
states;
expulsion
procedure
from documentary evidence to DNA testing. In the end, the picture regarding ways
to prove
admission of third co
the link between parents and children would appear to be a bit tricky.
A second major step o
of Amsterdam, the Eu
this basis,
it adopted
Asking for the production of official documents in order to prove the relationship
between
determines the condit
the members of the family is a first, and widely accepted, element taken into consideration
by member states. However, this may not be sufficient and calls for additionalresiding
actions.lawfully
The on t
conditions
for exerci
latter can take the form of further investigations/interviews lead by national authorities
in the
status
have been em
member state or in the country of origin, or the possibility to take a DNA test.
As –shown
below, solutions adopted by member states are sometimes very different from one another.
However, the novelt
'technical'
adoption o
In Belgium, a law adopted in March 2009 specifies the accepted means of proving
family
the Directive
relationships. When these links cannot be established by official documents under
the code are clos
not to
be considered
of private international law, there are other valid ways, such as interviews, additional
analysis,
integration of migran
and genetic or blood tests.
Justice's interpretation
recognised
In France, a regulation determines the proof that has to be produced in order tohas
attest
family the e
states'
margins
links. Parents should provide the "family record book" or where such a document
does
not of ma
exist in the country of origin, the birth certificate establishing family links. In case of adoption,
Family family
migration rule
the decision to adopt should be presented. If one of the parents of the child, for whom
On
the
one hand, thi
reunification is requested, is dead – or if one of the parent's rights are revoked – the applicant
level,
and
on the othe
must provide a death certificate or revocation act.
vice versa.
Finally, regarding family reunification of children born in a previous marriage or relationship,
reunification
the divorce certificate allowing custody of the children or a certificate indicatingFamily
that custody
policies
andbemodifica
has been granted to the applicant must be presented. Copies of the document must
and
European
produced, accompanied by translations from a certified translator, to allow consulates to level a
(I). However, such a s
1. General requirements
39
3
39
examine theirINTRODUCTION
authenticity. A law adopted in 2007 planned to allow DNA testing. But the
GENERAL
implementing decree necessary to launch such a procedure has never been adopted. As a
consequence, DNA tests are not used in France.
Migration policies among EU member states have undergone major changes in recent decades,
In Germany,
linksimpact
are on
proven
a variety
of policies.
means, including official
which
have had afamily
significant
family via
migration
rules and
documents, investigations and DNA tests. The difficulty in Germany lies in the extreme
. Indeed,
is a to
federal
state and
differences
that oil
exist
in triggered
practice tremendous
between Länder
Firstly,
the 1970s
crisis
change.
It drove Germany
member states
adopt restrictive
this
question
is
dealt
with
and
implemented
by
the
federal
entities.
As
a
consequence,
this
labour migration policies. As a consequence, family reunification became one of the main ways
procedure
goes
through
hundreds
of
authorities
and
practices
may
vary
widely
even
to legally enter EU member states. Figures in some EU countries confirm that the majority of
Bundesland
.
within one
migrants
entered
for the purpose
of family reunification.
In the Netherlands,
links
are assessed
proven
onin
the
basis of official
documents,
Meanwhile,
the issue family
of family
reunification
hasand
been
gaining
importance
at European
level.
investigations
and
DNA
tests.
Regarding
documents,
Dutch
rules
make
a
distinction
between
The growing impact of the European Court of Human Rights and its jurisprudence regarding
the
prooftothat
mustlife
berepresented
provided for
children
thatofwhich
to be
produced
for adult
right
family
a minor
first step.
On theand
basis
Articleneeds
8 of the
European
Convention
ones.
Withrights,
regardthetoCourt
minorhaschildren,
applicants
must provide
copyforofmanoeuvre.
the child's More
birth
on
Human
framed and
limited member
states'aroom
certificate,
and
when
the
child
comes
from
a
previous
relationship
of
the
sponsor
or
his/her
precisely, the right to family life has been used as a strong and successful argument against
spouse or procedures
partner, documents
the also
parental
of the child,
expulsion
in memberrelating
states. to
It has
beenauthority
successfulininrespect
cases regarding
the
accompanied
by
a
declaration
of
consent
from
the
remaining
parent
regarding
the child's
admission of third country nationals.
departure from the country of origin, must be produced. For adult children, the following
proof
hasmajor
to be step
produced:
A
second
occurred at European level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
√ Copy
child's birth
certificate.
this
basis, of
it adopted
a Directive
on the right to family reunification. This Directive (2003/86/EC)
√
Documents
relating
to
legal family
relationship
between child
andcountry
sponsor
or the
determines the conditions forthe
exercising
the right
to family reunification
for third
nationals
sponsor's
spouse/partner
(only
if
the
relationship
is
not
clear
from
the
birth
certificate).
residing lawfully on the territory of an EU member state. Since then, several rules related to the
√ Copy offor
child's
unmarried
status
declaration.
conditions
exercising
the right
to family
reunification – as well as rights deriving from this
√
Proof
that
leaving
the
child
in
the
country
of origin
would
disproportionate
hardship.
status – have been embedded in EU rules, which
impact
uponcause
national
rules and practices.
√ Documentary evidence related to contributions to the costs of the child's upbringing and
living expenses
since
the sponsor's
arrival
in of
theAmsterdam
Netherlands.
However,
the novelty
introduced
by the
Treaty
goes much further than the
√
Documents
relating
to
the
legal
custody
of
the
child.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
√ Documents
actual
with of
respect
to the
the
Directive arerelating
closely to
linked
to authority
the integration
migrants.
In child.
this view, the Directive should
√
Documents
relating
to
the
relatives
with
whom
the
child
resides
or can
reside in the
the
not to be considered as a tool to manage migration but rather as
a means
of enhancing
country
of
origin.
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
In Poland,
family
have of
been
by officials
from 'governorship'
and since
2009
has
recognised
thelinks
existence
the examined
right to family
reunification
and firmly delineated
member
by
border
guards.
They
are
entitled
to
verify
the
validity
of
documents
produced
by
family
states' margins of manoeuvre.
members and, if necessary, to launch investigations in the framework of the administrative
procedure.
Hence,
officers
the Border
are allowed
to checkforallalmost
documents
provided
Family
migration
rules
and of
policies
have Guard
been constantly
modified
40 years
now.
by
applicants
and
verify
them.
This
includes
checks
related
to
employment
and
earnings.
On the one hand, this is due to the modification of migration policies at national and European
Officers
moreover
to check
whether
a givenon
person
livesflows
in the
place
level,
andare
on the
other, toentitled
the impact
of family
reunification
migration
and
mostindicated
probably
in
the
application,
who
lives
there,
etc.
In
any
case,
providing
false
documents
or
vice versa.
information justifies a negative decision.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
In Portugal,
links are assessed
onvery
theimportant
basis of inofficial
However,
specific
policies
and modifications
have been
the lastdocuments.
couple of years
at both national
authorities
may
ask
family
members
to
undertake
a
DNA
test,
as
DNA
tests
are
also
and European level and explain why a new study on conditions for family reunification is timely
considered
to
be
"official
documents".
However,
there
is
no
official
organised
DNA
testing
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
340
40
in Portugal. As a consequence, the sponsor may request DNA testing in GENERAL
any certified INTRO
laboratory. However, such a procedure must be carried out at his/her own expense.
In Slovenia, family links are proven by presenting the official documents requested
Migrationand
policies am
particularly birth certificates. No other procedure is available in this country. which have had a sig
In Spain, a royal decree asks for a copy of all documentation attesting to family
or kinship
Firstly,
the 1970s oil c
relationships or the existence of a common law marriage, and possibly also labour
of legal
and
migration
poli
economic dependence. However, it is also possible to provide DNA tests. For example,
to legally this
enter EU m
occurs when a minor child has been refused a visa to reunify due to having provided
migrants only
entered for t
"late" registration of birth. This is the case for instance with regard to the Dominican
Republic, where there are minors who are not registered at birth. Late registration
Meanwhile, isthe issue
seemingly treated with suspicion by the Spanish Administration. Moreover, and
2006impact o
Thefrom
growing
onwards, migrants may ask for DNA testing to prove family links.
right to family life rep
on Human rights, the
In Sweden, family links are assessed on the basis of official documents, investigations
precisely, and
the right to
DNA testing. The documents requested are birth certificates and documents
related procedure
to
expulsion
custody or adoption. Investigations may be necessary in order to determine admission
relationships
of third co
between members of the family or the situation of custody. Where investigations are not
sufficient, the Migration Board may offer the chance to proceed to DNA testing.
A second major step o
State
BE
FR
GE R
NL
PL
PT
SLO
SP
SW
Official d oc.
X
X
X
X
X
X
X
X
X
Invest igation
X
X
X
X
X
of Amsterdam, the Eu
DNA Test
this basis, it adopted
X determines the condit
residing lawfully on t
X conditions for exerci
X
status – have been em
X
However, the novelt
X 'technical' adoption o
X the Directive are clos
not to be considered
integration of migran
To sum up:
Justice's interpretation
has recognised the e
√ All of the member states at first hand and as a general rule rely on official documents.
states' margins of ma
√ Five offer the opportunity to conduct further interviews/investigations.
√ Six out of nine recognise the right to resort to DNA testing in order to proveFamily
family migration
links.
rule
On the one hand, thi
level, and on the othe
2. DNA testing
vice versa.
The question of whether the use of DNA testing is acceptable in the field
of family
Family
reunification
reunification was much discussed and contested in France during the adoption of
the
onmodifica
policieslaw
and
immigration in 2007. Four out of the main criticisms that were put forward against
the
use
and European level a
of this process were:
(I). However, such a s
41
3
41
√ DNA testing
is allowed in criminal matters and should not be extended to the migration field.
GENERAL
INTRODUCTION
√ DNA testing may cause problems where fathers are not the real genitors.
√ DNA testing is useless when it comes to adopted children.
√ DNA testing
limitedEU
to member
the 'European'
conception
of major
the nuclear
family
and does
not
Migration
policiesisamong
states have
undergone
changes
in recent
decades,
take
into
account
notions
and
definitions
of
family
that
exist
in
other
regions
of
the
world.
which have had a significant impact on family migration rules and policies.
Despite
and from
a practical
point Itofdrove
view,member
DNA tests
very helpful
to
Firstly,
thethese
1970scriticisms,
oil crisis triggered
tremendous
change.
statesare
to adopt
restrictive
speed
up
lengthy
procedures.
Indeed,
for
persons
coming
from
countries
where
official
labour migration policies. As a consequence, family reunification became one of the main ways
documents
are EU
verymember
difficultstates.
to obtain
or with
regard
which European
administrations
to
legally enter
Figures
in some
EUtocountries
confirm that
the majorityare
of
very
suspicious,
DNA
testing
is
efficient
proof
of
the
existence
of
family
links
and helps
migrants entered for the purpose of family reunification.
overcome administrative obstacles.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
Although
several
states use
thisofpossibility,
as noted
there are
significant
The
growing
impactmember
of the European
Court
Human Rights
and itsabove,
jurisprudence
regarding
the
differences
between
the
procedures
established
at
national
level.
right to family life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
The decision
to undertake
DNA
is taken
by theand
applicant
himself
or proposed
precisely,
the right
to familya life
hastest
been
used either
as a strong
successful
argument
against
by
the
administration.
In
Belgium,
the
Netherlands
and
Portugal,
the
decision
is takenthe
by
expulsion procedures in member states. It has also been successful in cases regarding
the
applicant.
This
occurs
where
the
administration
does
not
accept
or
is
not
convinced
admission of third country nationals.
by the documents provided, or where documents to be presented do not exist or do not
exist
anymore.
such
situations,
applicants
family
may
resort
to
A
second
major In
step
occurred
at European
levelfor
after
1999.reunification
With the entry
intodecide
force oftothe
Treaty
such
a
test.
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
In Spain, DNA
tests are requested
by the
administration
or the applicant.
The
administration
determines
the conditions
for exercising
the right
to family reunification
for third
country
nationals
may
request
the
applicant
to
go
for
a
DNA
test
in
particular
where
a
visa
has
not
been issued
residing lawfully on the territory of an EU member state. Since then, several rules related
to the
to childrenfor
because
the latter
registered
theirreunification
birth only recently.
Applicants
beenfrom
entitled
conditions
exercising
the right
to family
– as well
as rights have
deriving
this
to ask–for
such
a test
since 2006.
They
will
in this
case upon
bear the
cost of
theand
test.practices.
status
have
been
embedded
in EU
rules,
which
impact
national
rules
Sweden stands
in the middle,
as DNA
testing
is offered
by the Migration
Boardfurther
when than
previous
However,
the novelty
introduced
by the
Treaty
of Amsterdam
goes much
the
investigations
have
been
unsuccessful
to
prove
family
links
or
relationships.
But
in
Sweden,
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
persons
may are
haveclosely
recourse
to DNA
on their
own. In this view, the Directive should
the
Directive
linked
to thetesting
integration
of migrants.
not to be considered as a tool to manage migration but rather as a means of enhancing the
Here, four member
states
are implementing
three
different
of procedure,
from voluntary
integration
of migrants
legally
residing in their
host
society.types
Secondly,
the European
Court of
to
mandatory
testing.
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
Differences
also
exist regarding the price of tests and the person who has to pay for it. In
states'
margins
of manoeuvre.
Belgium, the Netherlands and Portugal, the applicant covers the cost of the test. It is different
in Sweden,
where
theand
administration
forconstantly
the test even
whenforit almost
has not40been
Family
migration
rules
policies havepays
been
modified
yearsoffered
now.
by
the
Migration
Board.
In
this
case,
the
costs
are
covered
if
it
appears
that
the
On the one hand, this is due to the modification of migration policies at national and residence
European
permitand
hasonbeen
issued
on impact
the basis
of the reunification
relationship on
between
members
of most
the family.
In
level,
the other,
to the
of family
migration
flows and
probably
the
Netherlands,
expenses
are
reimbursed
to
family
members
of
refugees,
if
the
outcome
of
vice versa.
the test is positive.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
The price
of modifications
the tests varieshave
between
states. in
In the
Belgium,
a testofcosts
per
policies
and
been member
very important
last couple
yearsaround
at both€200
national
person.
The
applicant
has
to
pay
for
two
tests
and
the
transportation
of
blood
samples
from
and European level and explain why a new study on conditions for family reunification is timely
theHowever,
country of
origin
to Belgium,
does not
than €50. Indefined
the end,
a DNA test
(I).
such
a study
needs to which
be delineated
(II)cost
and less
its methodology
(III).
342
42
costs around €450. However, in Kinshasa and in Abidjan, an experimental project
was set up INTRO
GENERAL
using blotting paper that carries drops of blood. The blotting paper is then sent by diplomatic
mail, reducing the cost. In the Netherlands, a DNA test costs around €200 for one child and
€326,72 for three children. It increases even further for more children. In Spain,Migration
the test costs
policies am
around €300. Finally, in Sweden, a DNA analysis involving two persons costs around
€800.
which have
had a sig
Rules applicable in the member states regarding the use of DNA tests are diverse
in the
terms
Firstly,
1970s oil c
of the people involved and in terms of cost. On the other hand, and notwithstanding
the
labour migration
poli
rapidity and certainty that such tests bring to the process, the use of technology
related enter
to EU m
to legally
genetics in the migration policy remains highly sensitive and much debated. migrants entered for t
Hence, and in order to define whether this specific means of proof shouldMeanwhile,
be furtherthe issue
promoted at EU level and developed at national level, four main issues should
further impact o
Thebegrowing
discussed between member states with the participation and support of the EUright
institutions.
to family life rep
These are the following:
on Human rights, the
precisely, the right to
√ An in-depth discussion should take place with regard to the voluntary or
mandatory
expulsion
procedure
nature of DNA testing in the family reunification procedure.
admission of third co
√ The chance to proceed to DNA testing should be accompanied by thorough information
about the type, scope and use of data.
A second major step o
√ The cost of DNA testing may constitute a significant financial burden and the
possibility the Eu
of Amsterdam,
to seek financial support from the state or EU funding could be one way to this
go. basis, it adopted
√ The issue of data protection of data and its use, including questions relating
to storage
determines
the condit
and interconnection of data.
residing lawfully on t
conditions for exerci
The consultation following the publication of the Commission's Green Paper should
status launch
– have been em
discussion of these crucial topics.
However, the novelt
'technical' adoption o
D. Reunification of minor children of a further spouse
the Directive are clos
not to be considered
This point relates to two different situations. It covers, first of all, the situation ofintegration
a child born
of migran
in a previous relationship or marriage. It also covers the situation of polygamous
marriages.
Justice's
interpretation
Polygamy is forbidden in all EU member states. As a consequence, it is assumed
that only the e
has recognised
one spouse and her children are entitled to join the sponsor. This assumption is
reversed
in of ma
states' margins
some countries, where the rules applicable are more flexible in this regard.
Family migration rule
On the one hand, thi
level, and on the othe
In Germany, Portugal and Sweden no restrictions are imposed on family reunification
vice versa. for
minor children of a further spouse by the sponsor. In Sweden for instance, the child's interest
in being able to reunite with a resident parent is of such importance that no limits
on family
Family
reunification
reunification of minor children of a further spouse should be imposed. The reason
for this
policies
andismodifica
that a child whose parent is married to more than one person can have an equal
need
to level a
and European
reunite with the parent in Sweden as a child whose parents are divorced and
one
of
the
(I). However, such a s
1. No restrictions for reunification of minor children of a further spouse
43
3
43
parents has remarried
and is living
GENERAL
INTRODUCTION
in Sweden. In both cases, the parent abroad may be
unable to exercise custody over the child for health or other reasons. The preparatory work
also discussed the risk that the other parent, the spouse living abroad, will later on apply for
reunification
withamong
the child
in Sweden,
andundergone
this indirectly
could be
considered
as
Migration
policies
EU member
states have
major changes
in recent
decades,
sanctioning
polygamy.
The
child's
interest
in
being
able
to
reunite
with
a
parent
resident
in
which have had a significant impact on family migration rules and policies.
Sweden was, however, considered to be of such importance that no limits on the family
reunification
of oil
minor
a further change.
spouse Itwere
despite
the risk
raised.
Firstly,
the 1970s
crisischildren
triggeredof
tremendous
droveimposed,
member states
to adopt
restrictive
Hence,
there
are
no
limits
in
the
regulations
regarding
an
unmarried
child's
right
to
labour migration policies. As a consequence, family reunification became one of the mainfamily
ways
reunification
with
parent who
is resident
in some
or hasEU
been
grantedconfirm
a residence
to settle
to
legally enter
EUamember
states.
Figures in
countries
that permit
the majority
of
in Sweden.
If a child
a of
residence
permit in such situations, future applications from
migrants
entered
for theobtains
purpose
family reunification.
the parent abroad may be rejected, according to the preparatory work, because in Sweden a
relationship the
to aissue
childofdoes
notreunification
entail an unconditional
rightintoimportance
obtain a residence
permit.
Meanwhile,
family
has been gaining
at European
level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
2. Reunification
minor children
of a further
spouse
framed8by
rulesConvention
right
to family lifeof
represented
a first step.
On the basis
of Article
of national
the European
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
Other countries
limits
reunification
minor
of aargument
further spouse.
precisely,
the rightimpose
to family
lifeon
hasthe
been
used as a of
strong
andchildren
successful
against
These
concern
children
born
in
a
previous
marriage
or
relationship.
In
these
states,
the rules
expulsion procedures in member states. It has also been successful in cases regarding
the
applicableofare
generally
implemented in a situation where the sponsor or the spouse
admission
third
country those
nationals.
has custody of the child or children. In this case, appropriate proof must be presented, for
example
the decision
to grant
custody, and
necessary
the consent
theforce
other
parent
or
A
second major
step occurred
at European
levelifafter
1999. With
the entryof
into
of the
Treaty
proof
that
the
other
parent
is
dead.
Such
rules
are
in
force
with
some
slight
differences
in
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Belgium,
France,
the
Netherlands
and
Spain.
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
As for polygamous
are implemented
in each
member
state. to the
residing
lawfully on marriages,
the territorydifferent
of an EUrules
member
state. Since then,
several
rules related
conditions for exercising the right to family reunification – as well as rights deriving from this
In Belgium,
wasembedded
possible to
family
reunification
before
2008.
This
no longer the
status
– have it
been
inrefuse
EU rules,
which
impact upon
national
rules
andis practices.
case under case law issued by the Constitutional Court, which judged that the legislator can
limit spouses'
family entry
and settlement
if the of
marital
link – such
polygamy
violates
However,
the novelty
introduced
by the Treaty
Amsterdam
goes as
much
further –than
the
public
order.
Since
then,
reunification
of
children
of
a
further
spouse
can
only
be
refused
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the rootson
of
the Directive
basis of civil
rights i.e.
if one
of the
parentsofdoes
not agree
and
hasthe
theDirective
right to contest
the
are closely
linked
to the
integration
migrants.
In this
view,
should
the to
reunification.
not
be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
In France,
the sponsorofisthe
notDirective
usually entitled
to ask
for family
of children
of any
Justice's
interpretation
has played
a strong
role inreunification
giving it a crucial
dimension:
it
spouse
other
than
the
one
authorised
to
reside
in
France.
But
it
is
possible
if
the
mother
of
has recognised the existence of the right to family reunification and firmly delineated member
the children
died or if their parental authority has been revoked. For polygamous
states'
marginshas
of manoeuvre.
marriages, documents proving family links are subject to in-depth scrutiny.
Family migration rules and policies have been constantly modified for almost 40 years now.
In the
is possible ifofthe
sponsorpolicies
has custody
over and
the European
children.
On
the Netherlands,
one hand, this reunification
is due to the modification
migration
at national
This
needs
to
be
proven
by
legalised
documents
relating
to
parental
authority
in
respect
of
level, and on the other, to the impact of family reunification on migration flows and most probably
the
child.
The
child
of
a
single
mother
is
assumed
to
be
under
her
custody.
In
this
case,
no
vice versa.
further proof of custody is required. The children are not required to be dependent on the
sponsor.reunification
In the eventisthat
custody issue
is shared,
in the to
event
that this
is requiredEver-evolving
by the legal
Family
a sensitive
that and
is subject
changing
landscapes.
system
of
the
country
of
residence
of
the
other
parent,
a
declaration
of
consent
the
policies and modifications have been very important in the last couple of years at bothfrom
national
remaining
parent
regarding
the
child's
departure
from
the
country
of
origin
needs
to
be
and European level and explain why a new study on conditions for family reunification is timely
submitted
with
the
request
for
a
temporary
stay.
Also,
a
copy
of
the
other
parent's
ID
to
verify
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
344
44
the signature needs to be submitted. Should the parent whose consent is required
refuse to INTRO
GENERAL
grant it, or if they cannot be found or have passed away, a competent foreign authority can
give the necessary consent.
Migration policies am
In Spain, the rules state that in principle it is not possible to reunite more thanwhich
one spouse.
have had a sig
However, rules regarding children are different. Indeed, the children of any spouse may be
united with them provided that the sponsor can prove that he/she has full custody
of thethe
child
Firstly,
1970s oil c
or that the child is under his/her custody and care.
labour migration poli
to legally enter EU m
In Slovenia, only one spouse in polygamous marriages is entitled to family reunification.
The
migrants entered
for t
minor children of other spouses in the polygamous marriage, if they are not at the same
time children of the sponsor as well, are not entitled to family reunification.
In otherthe issue
Meanwhile,
words, if a child is a child of the sponsor and of a further spouse, he or she The
is entitled
growingtoimpact o
family reunification.
right to family life rep
on Human rights, the
In Poland, further spouses are not considered family members and may not precisely,
therefore the
be right to
entitled to family reunification.
expulsion procedure
admission of third co
To sum up, three different categories of state may be distinguished:
A second major step o
√ States which have not established any restrictions on family reunification
for minor the Eu
of Amsterdam,
children of a further spouse (Germany, Portugal and Sweden).
this basis, it adopted
√ States which accept reunification subject to specific limitations or minor
checking
determines
the condit
(Belgium, France, the Netherlands, Spain and Slovenia).
residing lawfully on t
√ States which reject reunification as a principle (Poland).
conditions for exerci
status – have been em
However, and according to the sensitivity of an issue that is mainly linked to polygamous
marriage, it remains difficult to find a sound common approach among the member
states.
However,
the novelt
'technical' adoption o
However, this does not preclude member states and EU institutions from the
exchanging
Directive are clos
information and knowledge on this issue to define further means of action or coordination
not to be considered
in this field.
integration of migran
Justice's interpretation
has recognised the e
IV. Relatives in the direct ascending line
states' margins of ma
According to Article 4, paragraph 2 of Directive 2003/86/EC, member states may
authorise
Family
migration rule
"entry and residence of first degree relatives in the direct ascending line of the sponsor
or his
On the one
hand, thi
or her spouse where they are dependent on them and do not enjoy proper support
in
thethe othe
level, and on
country of origin".
vice versa.
This provision sets three limits. Firstly, it does not concern parents of minor
children.
Family
reunification
Secondly, it is an optional provision, because member states "may" transpose it policies
into national
and modifica
law. Finally, relatives in the direct ascending line must be dependent and not and
benefit
from level a
European
proper support in their country of origin. This optional provision has limited scope.
(I). However, such a s
45
3
45
It is not implemented
in three member states: Belgium, France and Poland. In France, for
GENERAL
INTRODUCTION
instance, relatives in the ascending line are excluded from the family reunification
procedure. They may however be admitted to reside in France as "visitors". To do so they
must prove
that they
haveEU
sufficient
and
acknowledge
they are
not entitled
to
Migration
policies
among
memberresources
states have
undergone
majorthat
changes
in recent
decades,
carry
out
any
kind
of
labour.
which have had a significant impact on family migration rules and policies.
In the the
other
six member
states, first
degree relatives
direct
ascending
line
fall under
the
Firstly,
1970s
oil crisis triggered
tremendous
change.inItthe
drove
member
states to
adopt
restrictive
scope
of
rules
related
to
family
reunification.
labour migration policies. As a consequence, family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
In Germany,
is allowed
only if refusal would lead to exceptional
migrants
enteredfamily
for thereunification
purpose of family
reunification.
hardship. Exceptional hardship includes dependency on the care of family members.
German lawthe
encompasses
special
rules applicable
parentsinofimportance
minor children
who possess
Meanwhile,
issue of family
reunification
has beenforgaining
at European
level.
a
humanitarian
residence
permit
or
a
settlement
permit,
provided
that
no
parent
with a right
The growing impact of the European Court of Human Rights and its jurisprudence regarding
the
of care
is already
resident in Germany.
right
to family
life represented
a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
In the Netherlands,
parents
of been
a sponsor
granted
a residence
permit against
on the
precisely,
the right to the
family
life has
used may
as a be
strong
and successful
argument
grounds
of
family
reunification
if
certain
requirements
are
fulfilled.
The
parent
must
be
expulsion procedures in member states. It has also been successful in cases regardingaged
the
65 or over,ofand
must
be single.
The latter condition is proven on the basis of legal documents
admission
third
country
nationals.
such as a death or divorce certificate. As regards the children, they need to have an unlimited
right
to reside
the occurred
Netherlands,
to have level
beenafter
granted
a residence
permit
onforce
asylum
grounds
A
second
majorinstep
at European
1999.
With the entry
into
of the
Treaty
or
to
have
Dutch
nationality.
This
means
that
children
holding
a
residence
permit
for
a
limited
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
On
timebasis,
period
do not enjoy
the right
to family
for relatives
in the ascending
line.
this
it adopted
a Directive
on the
right toreunification
family reunification.
This Directive
(2003/86/EC)
Finally, thethe
lawconditions
specifies for
that
no otherthe
children
living in the
of origin
who
determines
exercising
right to must
familybe
reunification
forcountry
third country
nationals
could
take
care
of
the
parent.
From
1
January
2012,
the
condition
that
all
children
have
to
residing lawfully on the territory of an EU member state. Since then, several rules related to live
the
in the Netherlands
will be
abolished.
At thereunification
same time, one
to act deriving
as a sponsor,
conditions
for exercising
the
right to family
– aschild
wellhas
as rights
from and
this
to that– end,
will have in
to EU
earnrules,
150%
of the
minimum
status
havehe/she
been embedded
which
impact
upon wage.
national rules and practices.
Portugal allows
familyintroduced
reunification
of first
degree
relatives ingoes
the much
ascending
of the
the
However,
the novelty
by the
Treaty
of Amsterdam
furtherline
than
applicant,
as
well
as
for
the
spouse
or
partner.
The
law
requires
that
relatives
in
the
ascending
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
lineDirective
of the applicant,
as linked
well astofrom
the spouseoformigrants.
partner, In
must
dependent
on them.
the
are closely
the integration
thisbe
view,
the Directive
should
not to be considered as a tool to manage migration but rather as a means of enhancing the
In Slovenia,
Aliens'legally
Act stipulates
that
the host
sponsor
has Secondly,
the right to
reunification
integration
of the
migrants
residing in
their
society.
thefamily
European
Court of
with
his/her
or
his/her
spouse's
parents,
if
either
of
them
is
obliged
to
sustain
them in
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension:
it
accordance
with
the
laws
of
the
state
of
which
they
are
nationals.
As
regards
all
other
has recognised the existence of the right to family reunification and firmly delineated member
relatives
in theofascending
line, they may be exceptionally and by discretion of the state body
states'
margins
manoeuvre.
granted the right to family reunification if special circumstances support such reunification
in Slovenia.
Family
migration rules and policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
In Spain,
a royal
decree
implementing
a lawreunification
adopted in on
2009
authorises
of
level,
and on
the other,
to the
impact of family
migration
flowsthe
andreunification
most probably
parents
in
the
first
degree,
and
of
those
of
his/her
spouse
or
partner.
Parents
must
be
over
65
vice versa.
years old, be dependent on him/her and provide reasons that justify reunification in Spain.
Dependence
is proven
the sponsor
duringlandscapes.
at least theEver-evolving
last year of
Family
reunification
is a ifsensitive
issue can
that demonstrate
is subject to that
changing
his/her
residence
in
Spain,
he/she
transferred
funds
or
paid
expenses
to
his/her
family
policies and modifications have been very important in the last couple of years at both member
national
capita
gross
calculated
annually,
of
amounting
to level
at least
of the
and
European
and51%
explain
whyper
a new
study
on domestic
conditionsproduct,
for family
reunification
is timely
the
country
of
residence
of
the
latter
as
established
by
the
National
Statistics
Institute.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
346
46
In Spain, the issue of age was much discussed and initial requirements were
eventually INTRO
GENERAL
softened. Thus the age limit stipulated in the decree can be waived for the following
humanitarian reasons:
Migration policies am
√ the ascendant of the sponsor, or his/her spouse or partner, is the spouse or partner
of the
which have
had a sig
other parent and the latter is over 65;
√ the ascendant lived with the sponsor in the country of origin when the later
obtained
Firstly,
the 1970s oil c
his/her permit;
labour migration poli
√ the ascendant is incapable and his/her guardianship is granted by theto competent
legally enter EU m
authority in the country of origin to the alien resident or to his/her spouse
orentered
the for t
migrants
reunified partner;
√ the ascendant is not objectively capable of providing for his/her own needs.Meanwhile, the issue
The growing impact o
As a general rule in Sweden, a residence permit may be given to an alien who
close life rep
rightistoa family
relative of someone who is resident in or who has been granted a residence permit
to
settle
on Human
rights, the
in Sweden. The following conditions must be fulfilled: the sponsor and relative
must
precisely,have
the right to
been living in the same household in the country of origin and a special relationship
of
expulsion procedure
dependence must exist between them: for example parents whose adult children
must
take
admission of third co
care of them. According to preparatory work, this special relationship of dependence
between the relatives must make it difficult for them to live apart. This means
that major
the step o
A second
applicant and the sponsor must have been living in the same household immediately
before
of Amsterdam, the Eu
the sponsor moved to Sweden and the application must be submitted relatively
thissoon
basis,after
it adopted
the sponsor's settlement in Sweden to prove the dependence.
determines the condit
residing lawfully on t
As stated above, the provision of the directive regarding relatives in the direct ascending
line is
conditions
for exerci
narrow in scope. However, it leaves significant room for manoeuvre to member
states
in been em
status – have
implementing it and in particular with regard to the definition of persons falling within
its scope.
However, the novelt
'technical' adoption o
Hence, member states may adopt a series of conditions regarding the minimum the
age,Directive
proof of are clos
dependence – which may be very precisely defined, like in Spain – the obligationnot
nottotobe
have
considered
family in the country of origin, exceptions, etc. The analysis demonstrates that in integration
this domain,
of migran
national rules are very diverse and that common approaches could be difficult toJustice's
find. interpretation
has recognised the e
Notwithstanding the margins of manoeuvre awarded to member states in thisstates'
domain,
it of ma
margins
may however be pointed out that their leeway is not absolute. Hence, and for instance, it
is uncertain whether a requirement imposed by Dutch law regarding the singleFamily
status of
the
migration
rule
parent is acceptable under EU law. Indeed, such a condition does not appear On
in Article
the one4,hand, thi
paragraph 2, and it is questionable whether it is lawful. This example demonstrates
level,that
and EU
on the othe
law may sometimes constitute barriers to member states' freedom to act.
vice versa.
Family reunification
Finally, it has been explicitly reported by national experts that Belgium, Poland policies
and Slovenia
and modifica
recognise the possibility for parents of minor children (Belgium and Slovenia)
and
minor level a
and
European
refugees to join their children.
(I). However, such a s
47
3
47
The section devoted
to family members highlights some interesting points:
GENERAL
INTRODUCTION
√ First of all, the definition of family members entitled to family reunification is narrow and
mainly
limited
to the
perception
the familymajor
i.e. the
nuclear
Migration
policies
among
EUEuropean
member states
have of
undergone
changes
infamily.
recent decades,
which have had a significant impact on family migration rules and policies.
√ Secondly, and despite this narrow scope, the rules applicable to family members among
the1970s
Member
States
are very
different change.
in termsIt of
bothmember
contentstates
andtoprocedure.
As a
Firstly, the
oil crisis
triggered
tremendous
drove
adopt restrictive
consequence,
the rules
regarding the personal
scope of family
reunification
may
be ways
very
labour migration
policies.
As a consequence,
family reunification
became
one of the
main
different
from
one
state
to
another.
Hence,
the
right
to
family
reunification
might
to legally enter EU member states. Figures in some EU countries confirm that the majoritybe
of
or more
to of
exercise
on the state the sponsor is living in.
migrantseasier
entered
for thedifficult
purpose
family depending
reunification.
√ Finally,
common approaches
shouldinbeimportance
improved. at
These
couldlevel.
take
Meanwhile,
theand
issueconsequently,
of family reunification
has been gaining
European
the
form
of
better
coordination
of
national
rules
on
the
basis
of
enhanced
exchange
of
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
information
and
practices.
This
could
take
the
form
of
further
harmonisation
through
EU
right to family life represented a first step. On the basis of Article 8 of the European Convention
rules.
Discussions
theand
Green
Paper
will certainly
address
these issuesMore
and
on Human
rights,
the Courtfollowing
has framed
limited
member
states' room
for manoeuvre.
highlight
where
coordination
is
desirable
and
harmonisation
possible.
precisely, the right to family life has been used as a strong and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
admission of third country nationals.
SECTION 2 – RESIDENCE AND PROCEDURAL ASPECTS
A second major step occurred at European level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this
basis,addressed
it adoptedissues
a Directive
to family
reunification.
Directive (2003/86/EC)
Having
relatedontothe
theright
personal
scope
of family This
reunification,
i.e. persons
determines
conditions
for exercising
the right
to family reunification
country
nationals
entitled to the
benefit
from the
right to family
reunification,
the study for
willthird
now
seek to
define
residing
lawfully oninthethe
territory
of an states
EU member
state. procedural
Since then, several
rules
related
to the
rules applicable
member
regarding
aspects.
These
concern
conditions
exercising
right to of
family
reunification
as well asstate
rights
deriving
from
this
conditions for
regarding
thethe
residence
the sponsor
in the– member
before
being
joined
status
– havefamily
been embedded
EU touch
rules, which
upon national
by his/her
(I). They in
also
upon impact
procedural
aspects, rules
suchand
as practices.
the place of
application, examination rules and related costs (II).
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical'
adoptionrequirements
of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
I. Prior residence
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not
be considered
as a tool to
migration
but rather
as a means
of enhancing
As atorule,
family reunification
is manage
granted to
third country
nationals
residing
legally on the
integration
migrants state.
legallyDirective
residing 2003/86/EC
in their host does
society.
the else
European
of
territory of of
a member
not Secondly,
say anything
whenCourt
it states
Justice's
interpretation
of the Directive
has playedthe
a strong
role infor
giving
a crucialofdimension:
it
"the purpose
of this Directive
is to determine
conditions
the itexercise
the right to
has
recognised
the existence
of the right
to family
reunification
firmly
delineated
member
family
reunification
by third country
nationals
residing
lawfullyand
in the
territory
of the Member
states'
manoeuvre.
States".margins
Henceofprior
legal residence in the member state is a crucial criterion. But such a
criterion may be interpreted and implemented differently from one state to another. Examples
Family
and policies
haveallowing
been constantly
modified
years now.
includemigration
the type rules
of residence
permit(s)
its holder
to applyforforalmost
family40reunification
On
the
one
hand,
this
is
due
to
the
modification
of
migration
policies
at
national
and
European
(A) and the length of period of prior residence required (B).
level, and on the other, to the impact of family reunification on migration flows and most probably
vice
versa
A. Type
of. residence permit
Family
reunification
is a surveyed
sensitive in
issue
is –subject
to changing
landscapes.
Ever-evolving
In the majority
of cases
thisthat
study
eight out
of nine – member
states
determine
policies
and
modifications
have
been
very
important
in
the
last
couple
of
years
at
both
what type of residence permit the sponsor needs to hold in order to apply fornational
family
and
European level
explain
a new
study on
conditions
forestablish
family reunification
is timely
reunification.
Suchand
rules
may why
be very
precise.
Member
states
a list of residence
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
348
48
permits that include the right to family reunification and list the permits that are
excluded INTRO
GENERAL
from the procedure.
However, such rules may be formulated rather broadly and can cover a wide
rangepolicies
of
Migration
am
residence permits. Here, the main criterion is not the type of residence permit but
rather
the
which have had a sig
length of stay that the residence permit offers its holder.
Firstly, the 1970s oil c
Among the member states covered, there is one very specific case – Portugal –labour
wheremigration
rules
poli
are exceptionally broad. Indeed, in that country, all legal residence permits allow
the
holder
to legally enter EU m
to apply for family reunification.
migrants entered for t
In other countries, as stated above, the rules are more specific and are as follows:
Meanwhile, the issue
The growing impact o
In Belgium, sponsors may hold a residence permit for either an unlimited orright
limited
stay. life rep
to family
Initially, the right to family reunification was only accessible to people with on
an Human
unlimited
rights, the
residence permit. The law was modified in this regard to extend the scope
of family
precisely,
the
right to
Since then,
reunification to persons in possession of a residence permit of limited duration.24
expulsion
procedure
third country nationals entitled to precarious residence permits, such as asylum
seekers,
admission
of third co
cannot benefit from the right to family reunification. However, this does not prevent them
from making an application. In such situations, the application will not be examined
on major
the step o
A second
basis of family reunification but at the minister's discretion.
of Amsterdam, the Eu
this basis, it adopted
In France, the law specifies that third country nationals who have resided legally
in France
determines
the condit
for at least 18 months with the appropriate residence permit may ask to be reunited
with
their on t
residing lawfully
family. Regulatory rules determine the categories of residence permit that conditions
allow family
for exerci
reunification. These are the following: a temporary residence permit that lasts forstatus
at least
onebeen em
– have
year, or a residence card that states "EU long-term residence permit". The regulation adds,
however, that a period of 18 months may also be acceptable with the followingHowever,
documents:
the novelt
a temporary residence permit lasting less than one year, provisional authorisation
to stay,adoption
a
'technical'
o
receipt attesting the application for or renewal of the residence permit and a receipt
attesting
the Directive are clos
the position of the asylum seeker. The French rules thus take into account a broad
not definition
to be considered
of residence permits that grant the right to family reunification. In this regard,
the main
integration
of migran
element taken into account is not the nature of the residence permit, but rather Justice's
the length
of
interpretation
the legal stay.
has recognised the e
states' margins of ma
In Germany, the rule is quite generous as family reunification is open to persons in possession
of a settlement permit or an ordinary residence permit. But, persons awarded special
temporary
Family
migration rule
residence permits for humanitarian reasons are not entitled to apply for family reunification.
On the one hand, thi
level, and on the othe
In the Netherlands, the sponsor must hold a residence permit that has beenvice
issued
for
versa
. a
non-temporary goal. This excludes persons granted a residence permit for temporary grounds
24. H. Labayle & Y. Pascouau, op. cit. p. 37.
Family reunification
policies and modifica
and European level a
(I). However, such a s
49
3
49
i.e. persons visiting
relatives or staying as au pairs, or those staying for study reasons or for
GENERAL
INTRODUCTION
medical purposes. The Dutch Aliens Decree specifies that all other reasons for residence are
of a non-temporary nature.
Migration policies among EU member states have undergone major changes in recent decades,
In Poland,
who have
obtained
a permit
to settle,
an EU
long-term resident permit
which
have foreigners
had a significant
impact
on family
migration
rules and
policies.
or recognition as a refugee, as well as the beneficiaries of subsidiary protection and other
foreigners
who have
resided
in Poland
for atchange.
least forIt drove
two years
on the
basis
of a residence
Firstly,
the 1970s
oil crisis
triggered
tremendous
member
states
to adopt
restrictive
permit
for
a
fixed
period,
may
apply
for
family
reunification.
This
means
that
a
wide
range
of
labour migration policies. As a consequence, family reunification became one of the
main
ways
persons
may
ask
for
family
reunification
once
they
have
fulfilled
the
appropriate
period
of
to legally enter EU member states. Figures in some EU countries confirm that the majority of
residence
for
family
reunification.
On
the
contrary,
persons
holding
short-term
residence
migrants entered for the purpose of family reunification.
permits of less than two years, such as students, au pairs or the beneficiaries of tolerated
stays, may not
entitled
to apply
for the procedure.
Meanwhile,
thebe
issue
of family
reunification
has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
In Slovenia,
to family
reunification
is basis
recognised
to sponsors
residing Convention
in Slovenia
right
to familythe
liferight
represented
a first
step. On the
of Article
8 of the European
either
on
the
basis
of
a
permanent
residence
permit
or
on
the
basis
of
a
temporary
residence
on Human rights, the Court has framed and limited member states' room for manoeuvre.
More
permit.
In
the
latter
situation,
the
sponsor
should
have
resided
there
for
the
last
year
and
must
precisely, the right to family life has been used as a strong and successful argument
against
hold
a
temporary
residence
permit
valid
for
at
least
one
additional
year.
These
conditions
expulsion procedures in member states. It has also been successful in cases regarding will
the
cease to exist
from
27 October
2011 with the entry into force of the new Aliens Act.
admission
of third
country
nationals.
A second
similar major
rule isstep
applicable
Spain, where
application
reunification
be
A
occurred in
at European
level an
after
1999. Withfor
thefamily
entry into
force of thecan
Treaty
submitted
when
the
sponsor
has
been
living
in
Spain
for
at
least
one
year
and
has
applied
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
for abasis,
permit
to residea for
at leastonanother
year.
this
it adopted
Directive
the right
to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
In Sweden,
and on
according
to amendments
to the Aliens
law introduced
in rules
2009,related
the sponsor
residing
lawfully
the territory
of an EU member
state. Since
then, several
to the
has
to
be
resident
in
Sweden
or
must
have
been
granted
a
residence
permit
to settle
conditions for exercising the right to family reunification – as well as rights deriving from
this
in Sweden.
According
to the
government
requirements
related
to practices.
the residence
status
– have been
embedded
in EU
rules, whichbill,
impact
upon national
rules and
permit mean that a foreigner or stateless sponsor must have a permanent residence permit.
The reason
suchintroduced
requirements
the desire
for a goes
uniform,
However,
the for
novelty
by theisTreaty
of Amsterdam
muchappropriate
further than and
the
non-discriminatory
law.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
With
exception of
states
that determine
types the
of
not
to the
be considered
as some
a tool member
to manage
migration
but rathervery
as aprecisely
means ofwhich
enhancing
Germany
or
the
residence
permit
allow
for
or
exclude
family
reunification
(Belgium,
integration of migrants legally residing in their host society. Secondly, the European Court of
Netherlands,
for instance),
the picture
emerging
is role
that inthe
main
taken intoit
Justice's
interpretation
of the Directive
has played
a strong
giving
it aelement
crucial dimension:
account
is
the
length
of
the
stay
and
its
continuity
rather
than
the
type
of
residence
permit.
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
This is particularly the case in France, Poland, Spain or Slovenia, not to mention
Portugal
of course,
a widehave
rangebeen
of permits
allow
familyfor
reunification.
Herenow.
the
Family
migration
ruleswhere
and policies
constantly
modified
almost 40 years
focus
the this
ongoing
or modification
long-term residence
of policies
third country
nationals
in the
On
the is
oneonhand,
is duestay
to the
of migration
at national
and European
member
states.
level,
and on
the other, to the impact of family reunification on migration flows and most probably
vice versa.
This statement is reinforced by the Dutch system, where holders of permits issued
for specific
temporary
stays are
excluded
from the
family reunification
procedure,
Family
reunification
is a sensitive
issue
that is subject
to changing
landscapes. Ever-evolving
and theand
Swedish
one, where
onlyvery
holders
of permanent
residence
permits
maynational
apply
policies
modifications
have been
important
in the last couple
of years
at both
for European
family reunification.
and
level and explain why a new study on conditions for family reunification is timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
350
50
B. Length of prior legal residence
GENERAL INTRO
Some member states, as is allowed by Directive 2003/86/EC, require the sponsor to have
stayed lawfully on their territory for a fixed period of time before being joined
by family
Migration
policies am
members. But the Directive limits the margins of manoeuvre of the member which
states have
in this
had a sig
regard, as it states that the period must not exceed two years.
Firstly, the 1970s oil c
The results of the study on this issue show that rules applicable by EU memberlabour
states migration
in this
poli
domain are very diverse. They range from member states that have not established
a
minimal
to legally enter EU m
period of lawful residence required before reunification to member states
that have
migrants
entered for t
introduced such a rule of varying durations.
Meanwhile, the issue
The Netherlands, Portugal and Sweden have not introduced any special rules regarding
theimpact o
The growing
period of lawful residence into their legislation. Two situations may therefore arise.
In
the
first
right to family life rep
one, any type of residence permit allows the holder to apply for family reunification
and, as
on Human
rights, the
a consequence, third country nationals holding a residence permit may very rapidly
ask the
for right to
precisely,
family reunification. In Portugal, for example, the application for family reunification
expulsionmay
procedure
be introduced simultaneously with the application for a residence permit.admission
The second
of third co
situation concerns states where there is no specific period enshrined in the law but the
residence permit needed for family reunification itself implies that a minimum period
of time
A second
major step o
exists. This could be the case for instance if a state requests the sponsor to hold of
a permanent
Amsterdam, the Eu
residence permit, which is in any case never issued before the first year of residence
(with
this basis,
it adopted
the exception of the specific situation of refugees). In this situation, the type determines
of residence
the condit
the on t
permit requested de facto introduces a period of lawful residence. In the Netherlands,
residing lawfully
applicant must hold a residence permit that has been issued for a non-temporary
goal.
conditions
for exerci
However, the Dutch government planned in 2010 to introduce the requirement
that
thebeen em
status – have
applicant has already legally resided for one year.
However, the novelt
The second category of member state is those that introduced a defined period
of lawful
'technical'
adoption o
residence before residents are able to apply for family reunification. Slovenia and
Spain
askare clos
the Directive
the applicant to have resided on their territory one year before the application
be
not tocan
be considered
introduced. This condition will however cease to exist in Slovenia from the 27 October
2011.
integration of migran
In France, the period is 18 months, whereas Germany and Poland have opted
forinterpretation
the
Justice's
maximum period of two years. Three different periods thus exist in just five member
states.
This
has recognised the e
shows how diverse the picture is and how difficult harmonisation in the domainstates'
couldmargins
be.
of ma
Belgium stands in the middle of these two previous examples. It has transposedFamily
into law
the
migration
rule
obligation to have previously resided two years. But this rule is only applicable
in
very
On the one hand, thi
specific circumstances. Indeed, the two-year period applies in situations oflevel,
subsequent
and on the othe
reunification. This is the case of a sponsor who has already benefited vice
fromversa
family
.
reunification and who wishes to reunite with his/her new spouse or partner. In this case, the
two-year period is applicable.
Family reunification
policies and modifica
However, it should be outlined that in any of the cases mentioned above,
and Directive
European level a
2003/86/EC forbids the imposition of periods of longer than two years before the(I).
sponsor
cansuch a s
However,
51
3
51
have his/her family
members join him/her.
GENERAL
INTRODUCTION
This means that the procedure must start before
the end of the two-year period and family members must indeed join the sponsor before the
end of the two-year period. In practice, if a foreigner arrived in a member state on 1 January
2010 andpolicies
fulfilledamong
from that
the states
appropriate
conditionsmajor
for family
reunification,
his/her
Migration
EU date
member
have undergone
changes
in recent decades,
family
members
should
at
the
latest
be
entitled
to
join
him/her
on
1
January
2012.
which have had a significant impact on family migration rules and policies.
25
Length of prior
legal residence
Firstly, the 1970s oil crisis triggered tremendous
change.
It drove member states to adopt restrictive
No
specific
rule
1
year
18 monthsbecame one of the
2 years
labour migration policies. As a consequence, family reunification
main ways
The Net herlands, Portugal,
Slovenia*, S pa in
France
Germany, P oland
to legally
enter
EU
member
states.
Figures
in
some
EU
countries
confirm
that
the
majority
of
Sweden, Belgium
migrants
entered
for
the
purpose
of
family
reunification.
*In Slovenia thi s condition will cease to exist from 27 Oc tober 2011
Meanwhile, the issue of family reunification has been gaining in importance at European level.
II. Procedure
The
growing impact of the European Court of Human Rights and its jurisprudence regarding the
right to family life represented a first step. On the basis of Article 8 of the European Convention
In order
to rights,
grant orthe
refuse
and residence
for the
purpose
of family
member
on
Human
Courtentry
has framed
and limited
member
states'
roomreunification,
for manoeuvre.
More
states
have
to
establish
appropriate
procedures.
Such
a
condition
is
underlined
in
recital
n° 13
precisely, the right to family life has been used as a strong and successful argument against
of Directive
2003/86/EC,
which states.
states that
set been
of rules
governing
the procedure
for
expulsion
procedures
in member
It has"aalso
successful
in cases
regarding the
examination
of
applications
for
family
reunification
and
for
entry
and
residence
of
family
admission of third country nationals.
members should be laid down". Alongside national rules, Directive 2003/86/EC defines some
lines
that major
member
haveatto
follow and
least
not With
overrule
in thisinto
domain.
A
second
stepstates
occurred
European
levelatafter
1999.
the entry
force ofSometimes
the Treaty
inter
alia
rules
related
dutyOn
of
optional,
sometimes
mandatory,
these
provisions
concern
of Amsterdam, the European Union (EU) gained competences in the field of migrationthe
issues.
applicants
(A)
and
national
authorities
(B).
The
cost
of
the
procedure
is
not
directly
tackled
by
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
the directivethe
but
has to befor
addressed
in the
the right
general
framework
of EU law
(C).
determines
conditions
exercising
to family
reunification
for and
thirddevelopments
country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
A. Application
conditions
for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
Questions related to the application are numerous and the answers show interesting
differencesthe
between
member states.
However,
noveltythe
introduced
by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
1. Persons
to table
applications
for family
reunification
the
Directiveentitled
are closely
linked
to the integration
of migrants.
In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
The first question
relates
to the
personinintheir
charge
introducing
the the
application
family
integration
of migrants
legally
residing
host of
society.
Secondly,
Europeanfor
Court
of
reunification.
While
Directive
2003/86/EC
obliges
member
states
to
take
action
on
this
point,
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension:
it
it leaves
them the
fullexistence
margins of
of the
manoeuvre
to determine
whoand
hasfirmly
the duty
to initiate
the
has
recognised
right to family
reunification
delineated
member
procedure.
Article
5, paragraph 1 reads as follows: "member states shall determine whether,
states'
margins
of manoeuvre.
in order to exercise the right to family reunification, an application for entry and residence
shall bemigration
submittedrules
to the
competent
authorities
of the member
statefor
concerned,
the
Family
and
policies have
been constantly
modified
almost 40either
yearsby
now.
sponsor
or
by
the
family
member
or
members".
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
25. Article
8 indent 2 of Directive
2003/86/EC
allows
for aisderogation
very specificlandscapes.
circumstances.Ever-evolving
It states" By way
Family
reunification
is a sensitive
issue
that
subjectunder
to changing
of derogation, where the legislation of a member state relating to family reunification in force on the date of adoption
policies
and
modifications
have
been
very
important
in
the
last
couple
of
years
at
both
national
of this Directive takes into account its reception capacity, the member state may provide for a waiting period of no
andmore
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
timely
than three years between submission of the application for family reunification and the issue of a residence
(I). However,
study needs to be delineated (II) and its methodology defined (III).
permit to thesuch
familya members".
352
52
The leeway authorised by Directive 2003/86/EC reflects, or is the result of, the wide
diversity INTRO
GENERAL
that exists in the member states. Indeed, four member states (France, Poland, Slovenia and
Spain) require the sponsor to introduce the application, whereas three (Belgium, Germany
and Sweden) request the application to be introduced by members ofMigration
the family.
policies am
Consequently, applications should be introduced either in the member state orwhich
the country
have had a sig
of origin.
Firstly, the 1970s oil c
The Netherlands and Portugal have a mixed system where both the sponsorlabour
and migration
family
poli
members are entitled to introduce the application. But the reasons for such a to
system
differ
legally
enter EU m
from one country to the other. In Portugal, this derives from a very liberal approach
and
migrants entered
for t
depends on whether the family remains in the country of origin or not. Hence, the
application for family reunification is lodged by the sponsor if the family members
arethe issue
Meanwhile,
abroad. But, if the relatives are already on Portuguese territory, family reunion
may
beimpact o
The growing
requested by them or the sponsor.
right to family life rep
on Human rights, the
In the Netherlands, the rules are more complex. Family members have both theprecisely,
opportunity
the right to
to submit an application for advice concerning an authorisation for a temporary
stay (visa)
expulsion
procedure
on the grounds of family reunification. The family member has to do this in his
countryofofthird co
admission
origin or permanent residence, whereas the sponsor asks for advice in the Netherlands. The
administrative authorities in the Netherlands give their advice on this application,
which
is step o
A second
major
crucial. When the advice is positive, authorisation for a temporary stay can of
beAmsterdam,
granted.26 the Eu
Negative advice will lead to the application for authorising a temporarythis
stay
in the
basis,
it adopted
Netherlands being refused. The sponsor cannot appeal against the advice. In the
future,
determinesthe
the condit
advisory procedure will be replaced by a formal application allowing the sponsor
to appeal
residing
lawfully on t
against a denial.
conditions for exerci
2. Obligation for family members to reside outside the territory
status – have been em
However, the novelt
The obligation for family members to reside outside the territory concerned
while the
'technical'
adoption o
application is being processed is a widely recognised principle. Directivethe
2003/86/EC
Directive are clos
demonstrates that member states broadly agree in this regard. Indeed, they have
to
not agreed
to be considered
introduce a mandatory provision which reads as follows: "The application shall integration
be submitted
of migran
and examined when the family members are residing outside the territory of Justice's
the Member
interpretation
State in which the sponsor resides".
has recognised the e
states' margins of ma
This widely-accepted principle is also reflected in the study. Seven of the nine member states
oblige members of the family to reside in the country of origin or the third
country
of
Family
migration
rule
residence during the examination of the application. These are Belgium, France,
Germany,
On the one hand, thi
the Netherlands, Slovenia, Spain and Sweden.
level, and on the othe
vice versa.
Family reunification
26. It should be underlined, however, that once admitted into the Netherlands, the family member still needs to make an
policies and modifica
application for a residence permit on family reunification grounds. A bill was adopted in 2010 which provides for the
andauthorisation
European level a
automatic granting of a residence permit within two weeks after arrival in the Netherlands with a valid
(I).
However,
such a s
for a temporary stay on the grounds of family reunification.
53
3
53
Two memberINTRODUCTION
states, Poland and Portugal,
GENERAL
have not transposed this obligation into their
national legislation. In Poland, the law stipulates that the residence permit for a specified
period of time is granted to an alien who intends to arrive on the territory of Poland or already
resides onpolicies
that territory.
an have
application
submitted
by a family
member
who
Migration
among Consequently,
EU member states
undergone
major changes
in recent
decades,
27
already
resides
on
the
territory
of
Poland
cannot
be
regarded
as
an
exception.
which have had a significant impact on family migration rules and policies.
The absence
of oil
formal
transposition
of thischange.
obligatory
rulemember
in Poland
Portugal
may
Firstly,
the 1970s
crisis triggered
tremendous
It drove
statesand
to adopt
restrictive
not
be
considered
as
a
breach
of
EU
law.
On
the
one
hand,
it
may
be
considered
as
labour migration policies. As a consequence, family reunification became one of the main ways28a
more
favourable
for foreigners
allowed
by countries
Article 4 confirm
of Directive
2003/86/EC.
to
legally
enter EUprovision
member states.
Figures in
some EU
that the
majority of
Being
able
to
reside
in
the
territory
during
the
application
process
is
far
better
for the family
migrants entered for the purpose of family reunification.
than being forced to wait abroad. On the other hand, Article 5, paragraph 3, second
indent of Directive
2003/86/EC
states "byhasway
of gaining
derogation,
a Member
State may,
in
Meanwhile,
the issue of
family reunification
been
in importance
at European
level.
appropriate
circumstances,
accept
an
application
submitted
when
the
family
members
are
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
already
in its territory".
right
to family
life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
3. Derogation
fromtothe
obligation
reside
outside
the territory
precisely,
the right
family
life hastobeen
used
as a strong
and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
As alreadyofpointed
out, Directive
admission
third country
nationals. 2003/86/EC obliges member states to introduce in their
national legislation the obligation for family members to reside abroad. But the same
directive
permits
adoption
of derogations.
should
that
theofscope
for
A
second major
stepthe
occurred
at European
level after It
1999.
Withbe
the added
entry into
force
the Treaty
introducing
such
derogations
is
very
wide,
as
they
must
be
grounded
on
"appropriate
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
circumstances"
which
are not defined
by the
As a result,This
it isDirective
up to member
states
this
basis, it adopted
a Directive
on the right
to directive.
family reunification.
(2003/86/EC)
to
define
the
scope
and
content
of
"appropriate
circumstances".
determines the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
Only one of
memberthe
states
family members
reside
outside
their territory
conditions
forthe
exercising
rightthat
to oblige
family reunification
– astowell
as rights
deriving
from this–
Slovenia
–
has
not
made
use
of
derogations.
The
others
have
but
in
different
fashions.
status – have been embedded in EU rules, which impact upon national rules and practices.
In Belgium,
grounds
for derogations
broad.
the law
andfurther
in exceptional
However,
thethenovelty
introduced
by theare
Treaty
of According
Amsterdamtogoes
much
than the
circumstances,
applications
for
family
reunification
may
be
introduced
in
Belgium.
This
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly,
the roots
of
possibility
is
open
to
the
following
third
country
nationals:
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
√ Those who
are already
authorised
in Belgium,
such the
as students,
integration
of migrants
legally
residing to
in stay
theirlegally
host society.
Secondly,
Europeanworkers.
Court of
√
Those
who
are
authorised
for
a
temporary
stay
on
the
basis
of
a
short-stay
visa
or because
Justice's interpretation of the Directive has played a strong role in giving it a crucial
dimension:
it
do not the
need
a visa. of the right to family reunification and firmly delineated member
has they
recognised
existence
√ Those
whoofcan
prove that exceptional circumstances are preventing them from going
states'
margins
manoeuvre.
back to their country.
Family migration rules and policies have been constantly modified for almost 40 years now.
Thethe
exceptional
aremodification
defined by case
law as those
which
make "impossible
or
On
one hand,circumstances
this is due to the
of migration
policies
at national
and European
particularly
difficult
the
return
of
the
foreigner
to
his/her
country
of
origin".
The
assessment
level, and on the other, to the impact of family reunification on migration flows and most probably
of exceptional
circumstances takes into account ties with Belgium – such as schooling of
vice
versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies
and modifications have been very important in the last couple of years at both national
27. On this point, see H. Labayle & Y. Pascouau, p. 77.
and
European
level and
explain
why a4 new
study onshall
conditions
family reunification
is States
timely
28. Directive 2003/86/EC
recalls
in its article
"This Directive
not affect for
the possibility
for the Member
to
(I). However,
such
a
study
needs
to
be
delineated
(II)
and
its
methodology
defined
(III).
adopt or maintain more favourable provisions".
354
54
children, attendance of training courses or family links – and the situation in the
country of INTRO
GENERAL
origin – such as the absence of a Belgian diplomatic post in the country of origin, insecurity,
impossibility of travel, dangerous situations, etc. The individual situation of family members,
such as statelessness or health conditions, is also taken into account.
Migration policies am
which have had a sig
Moreover, the 2011 law introduces two new opportunities for the application to be tabled,
exceptionally, with the municipal administration. The first of these situationsFirstly,
is when
the oil c
the 1970s
foreigner has a valid visa to conclude a marriage or a partnership in Belgium, if labour
this marriage
migration poli
or partnership was effectively concluded before the end of this authorisation period
and ifenter
he EU m
to legally
fulfils the conditions before the end of the period. The second concerns parents
of
a
minor
migrants entered for t
child recognised as a refugee or benefiting from subsidiary protection. The father and/or the
mother will be able to apply for family reunification in Belgium if they prove that
they havethe issue
Meanwhile,
sufficient and regular means of supporting themselves.
The growing impact o
right to family life rep
In France, the rules state that the derogation applies where the foreigner is getting
married
on Human
rights, the
to a third country national residing legally in France on the basis of a one-year
temporary
precisely, the right to
residence permit. In such a case, family members are not obliged to reside in the
countryprocedure
of
expulsion
origin or aboard. The jurisprudence recalls that the administration is not bound
to
refuse
admission of third co
family reunification in these cases in particular where such a refusal would upset family life
disproportionately or according to consequences related to a return to the country
of origin.
A second
major step o
of Amsterdam, the Eu
In Germany, exceptions apply if it is intolerable to require an applicant who
already
thisisbasis,
it adopted
legally residing in Germany to apply abroad, provided that there is the legal
right
of condit
determines the
family reunification.
residing lawfully on t
conditions for exerci
In the Netherlands, derogations are possible when demanding authorisation forstatus
a temporary
– have been em
stay (visa) constitutes unreasonable harshness. Here, the condition of residing outside the
territory does not apply. But it is applied very strictly, for instance in cases of illness.
In midHowever,
the novelt
2011, the government decided to abolish the exemption from an authorisation for
temporary
'technical' adoption o
stay which was applied to third country nationals who had lawfully stayed in thethe
Netherlands
Directive are clos
for five years continuously before having reached the age of 19.
not to be considered
integration of migran
In Sweden, the principle is that family members are supposed to apply and Justice's
be granted
a
interpretation
residence permit before coming to Sweden, because a residence permit cannot has
be granted
if
recognised the e
the application is submitted in Sweden. However, three main derogations are states'
enshrined
in of ma
margins
Swedish law. The first concerns foreigners who have introduced an application for the
extension of a temporary residence permit which has been granted to an alienFamily
with family
migration rule
ties. It may, for instance, cover a person who intends to marry or begin a partnership
with
the
On the
one
hand, thi
sponsor when the relationship seems serious. This concerns the situation where level,
the applicant
and on the othe
has already lived in Sweden with a temporary residence permit which he/shevice
wasversa
granted
.
because of the seriousness of the relationship. The other derogation targets persons who have
strong ties with another person residing in Sweden and who cannot reasonablyFamily
be required
reunification
to travel to another country to submit the application there. The Migration Board
policiesshould
and modifica
especially consider the consequences for a child of being separated from her and
or his
parent level a
European
when deciding if the application should have been granted, if the investigation
had beensuch a s
(I). However,
55
3
55
done before the
arrival in Sweden. Finally, an application can also be introduced in Sweden
GENERAL
INTRODUCTION
if there are some other exceptional grounds.
In Spain, the
principle
of EU
so-called
"reunification
in fact" of minors
is applied
when it
can be
Migration
policies
among
member
states have undergone
major changes
in recent
decades,
proven
that
they
have
lived
in
Spain
for
two
or
more
years.
This
is
considered
as
which have had a significant impact on family migration rules and policies.
"regularisation by settlement".
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
With migration
regard to policies.
derogatory
adoptedfamily
in thereunification
member states,
two
can
labour
As a rules
consequence,
became
onemain
of thetrends
main ways
identified:
tobelegally
enter EU member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
√ Family members are already residing in the member state on the basis of a residence
permit.
concerns
instance a foreign
woman
residing
legally and
married
Meanwhile,
theThis
issue
of familyforreunification
has been
gaining
in importance
at getting
European
level.
to a third
country
residing
legally
as well.
they fall under
the scope
The growing
impact
of thenational
European
Court of
Human
RightsWhenever
and its jurisprudence
regarding
the
family
asked
go back
their
own country
while
right to of
family
lifereunification
representedrules,
a firstthey
step.will
Onnot
thebe
basis
of to
Article
8 oftothe
European
Convention
the application
is processed.
on Human
rights, the Court
has framed and limited member states' room for manoeuvre. More
√ Applicants
within
scope
"exceptional
circumstances".
Here,argument
requiring against
family
precisely,
the rightfalling
to family
lifethe
has
beenof used
as a strong
and successful
members
to move
endangerin
thecases
people
concerned.
expulsion
procedures
in abroad
memberwould
states.beItdisproportionate
has also been or
successful
regarding
the
Hence
theycountry
are notnationals.
required to return to the country of origin.
admission
of third
issuemajor
related
"exceptional
circumstances"
further
analysis
and of
discussion.
AThe
second
steptooccurred
at European
level after deserves
1999. With
the entry
into force
the Treaty
it exists
in a large
of countries
butin is
in issues.
different
ofIndeed,
Amsterdam,
the European
Unionnumber
(EU) gained
competences
theimplemented
field of migration
On
ways.
As ait consequence,
third country
nationals
mayreunification.
be treated inThis
different
ways(2003/86/EC)
depending
this
basis,
adopted a Directive
on the right
to family
Directive
on whichthe
country
they
living the
in.right
In to
order
foster common
and
determines
conditions
for are
exercising
familytoreunification
for thirdapproaches
country nationals
harmonisation,
thisthe
point
couldofbe
onSince
the agenda
of further
residing
lawfully on
territory
anopportunely
EU member put
state.
then, several
rulesconsultations
related to the
in the domain.
conditions
for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
However, the novelty
by ers
thetoTreaty
of Amsterdam
much further than the
Obligationintroduced
for family memb
reside outside
the territorygoes
and derogations
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration
of migrants. In
view, the Directive
should
Where is the
Arethis
fa mily
If yes, are
Who has to
app lication
s obliged
to of enhancing
derogations the
not to be considered
asapply?
a tool to manage
migration but member
rather as
a means
introduced?
abr oad?
organized?
integration of migrants legally residing in
their host society.reside
Secondly,
the European
Court of
BE
Family member(s)
Country of Origin
Yes
Yes
Justice's
of rthe Directive has played
it a crucial dimension:
it
FR interpretation
Sponso
France a strong role in giving
Yes
Yes
hasGE
recognised
the existence
to family
reunification and
R
Family
member(s) of the right
Country
of Origin
Yes firmly delineated
Yesmember
NL margins
Family
Country of Origin
Yes
Yes
states'
ofmember(s)/Sponso
manoeuvre. r
/Net herlan ds (not the
official applic ation, only
Family migration rules and policiesa have
modified for almost 40 years now.
requestbeen
for an constantly
advice)
Poland of migration policies
No at national andNo
On PL
the one hand, Sponso
this is rdue to the modification
European
PTand on Sponso
r where
family
Countr
y of
No
level,
the other,
to the
impact of family
reunification
on migration
flows and mostNoprobably
member( s) are abroad
Origin/P ortugal
vice versa. /Both where family
member(s) re side in
P ortugal
Family reunification
is a sensitive issue that is subject to changing landscapes. Ever-evolving
SLO
Sponso r
Yes
No
policies
and modifications
have been verySlovenia
important in the last couple
of years at both
national
SP
Sponso r
S pa in
Yes
Yes
andSW
European level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
Family member(s)
Country of Origin
Yes
Yes timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
356
56
B. Examination and decision
GENERAL INTRO
This part of the process concerns in particular duties weighing on the shoulders of the
member states. It deals with the procedure and rules that states have to comply
with.policies
In
Migration
am
this domain, Directive 2003/86/EC defines delays within which applications
for
which have had a sig
family reunification should be examined and rules related to decisions on applications.
National rules and practices show some differences between member states'
It oil c
Firstly,rules.
the 1970s
also demonstrates that some countries do not always comply with the requirements
of
labour migration poli
the Directive.
to legally enter EU m
1. Framework established by Directive 2003/86/EC
migrants entered for t
Meanwhile, the issue
Article 5, paragraph 4 of the Directive states "the competent authorities of the member
stateimpact o
The growing
shall give the person, who has submitted the application, written notification ofright
the decision
to family life rep
as soon as possible and in any event no later than nine months from the date on
on which
Humanthe
rights, the
application was lodged". It adds: "In exceptional circumstances linked to the complexity
of right to
precisely, the
the examination of the application, the time limit referred to in the first subparagraph
expulsionmay
procedure
be extended." Three elements have to be taken into consideration here.
admission of third co
First, the decision should be taken as soon as possible. This requirement is difficult
to assess.
A second
major step o
If the delay set by law is a good point of comparison between countries, thenofthe
rapidity the Eu
Amsterdam,
with which the application is examined is a matter of administrative practice and
suchit is
thisas
basis,
adopted
difficult to assess.
determines the condit
residing lawfully on t
Second, the decision should in any case be made no later than nine months from
the date
conditions
for exerci
the application is lodged. But, what emerges from the wording of the directive and
is
status –largely
have been em
acknowledged by member states is that the application must be complete. In this regard,
differences and uncertainty may derive from national law and practice on interpreting
However, the
the novelt
rule regarding a "complete" application.
'technical' adoption o
the Directive are clos
Third, the time limit set by the law may be extended. The directive limits thenot
reasons
to bethat
considered
justify such an extension. It can be awarded in "exceptional circumstances" and when
"linked
integration
of migran
to the complexity of the examination". Although at first glance, this limits the
margins
of
Justice's
interpretation
manoeuvre of the member states, the latter do still have some leeway. They
the the e
has have
recognised
possibility to define more or less broadly the notion of "the complexity of the examination".
states' margins of ma
Administrative practice is a crucial element here and plays an important role in
implementing this notion. However, the margin of manoeuvre of the memberFamily
states migration
is not
rule
absolute and is subject to the interpretation of the Court of Justice. This mayOn
then
frame
the one hand, thi
member states' action and delineate the balance between the goal pursued by extension
level, andand
on the othe
the right to family reunification.
vice versa.
2. Deadlines for examination in national legislation and regulations
Family reunification
policies and modifica
The deadline for examining an application for family reunification, once the application
is level a
and European
considered complete, varies between one and nine months.
(I). However, such a s
57
3
57
In Sweden, the
decision has to be taken within nine months. Due to the complexity of the
GENERAL
INTRODUCTION
application, the period of nine months may be extended. However, no specific time of
extension is planned in Swedish law.
Migration policies among EU member states have undergone major changes in recent decades,
A nine-month
is also
applicable
in migration
the Netherlands.
Here it is a combination
which
have had adelay
significant
impact
on family
rules and policies.
of the three-month period generally necessary for obtaining a visa and the six-month
periodthe
normally
to issue
a residence
permit,
leading
to an
average
nine-month
Firstly,
1970s oilrequired
crisis triggered
tremendous
change.
It drove
member
states
to adopt
restrictive
period.
This
period
may
be
extended
for
another
six
months
if
the
minister
that
labour migration policies. As a consequence, family reunification became one of thedeems
main ways
the
advice
of
the
public
prosecutor
or
an
investigation
by
a
third
party
is
necessary
to legally enter EU member states. Figures in some EU countries confirm that the majority for
of
the decision
on for
thethe
application
be taken.
However, new legislation adopted in 2010,
migrants
entered
purpose of to
family
reunification.
that should enter into force in January 2012, states that a residence permit should be
provided within
twoof weeks
after arrivalhas
if been
the family
has been
granted
an
Meanwhile,
the issue
family reunification
gaining member
in importance
at European
level.
authorisation
for
temporary
stay
on
the
basis
of
family
reunification.
Thus,
no
longer
will
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
second
assessment
on the fulfilment
of the
take place.
right
to family
life represented
a first step.
Onrequirements
the basis of Article
8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
A six-month
period
is applicable
in France
Belgium.
In France,
there against
is no
precisely,
the right
to family
life has been
used as and
a strong
and successful
argument
chance
of
extending
this
fixed
period.
In
Belgium,
the
law
adopted
in
2007
introduced
expulsion procedures in member states. It has also been successful in cases regarding the
for the firstoftime
nine-month
period for the examination of applications. The law adopted
admission
thirdacountry
nationals.
in May 2011 reduced this delay to six months. It maintains nevertheless the option
ofsecond
prolonging
thisoccurred
deadline
twice level
by three
months
dueentry
to into
the force
complexity
of
A
major step
at European
after 1999.
With the
of the Treaty
the
case.
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
In Portugal,
application
should the
be right
examined
three months,
which nationals
may be
determines
thethe
conditions
for exercising
to familywithin
reunification
for third country
extended
for
three
additional
months
due
to
the
complexity
of
the
application.
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
In Slovenia,
in accordance
with
General
Administrative
Procedure
Act,practices.
the decision
status
– have been
embedded in
EU the
rules,
which impact
upon national
rules and
has to be issued within two months of the complete application being lodged. There is
no possibility
in this member
state
extend
In practice,
However,
the novelty
introduced
bytothe
Treatythe
of two-month
Amsterdamperiod.
goes much
further however,
than the
this
time
limit
is
often
not
respected.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
In Spain,
the administration
has threebut
months
to agive
an ofanswer
on the
the
not
to be considered
as a tool tonormally
manage migration
rather as
means
enhancing
application.
If
no
decision
is
taken
within
this
period,
it
may
be
considered
as
integration of migrants legally residing in their host society. Secondly, the European Court ofa
negativeinterpretation
answer.
Justice's
of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
In Poland,
theofrules
applicable derive from the Code of Administrative Procedure, which
states'
margins
manoeuvre.
determines general provisions on the length of the administrative procedure. Generally, a
decision
on an application
for family
reunification
shouldmodified
be takenfor
as almost
soon as40possible
and
Family
migration
rules and policies
have
been constantly
years now.
within
one
month
at
the
latest.
An
extension
for
another
month
is
possible
due
to
the
On the one hand, this is due to the modification of migration policies at national and European
complexity
of
the
application.
According
to
data
gathered,
family
reunification
procedures
level, and on the other, to the impact of family reunification on migration flows and most probably
usually
take
vice
versa
. between 45 and 60 days.
Germany
does not have
any specific
reunification
but applies
general
Family
reunification
is a sensitive
issuerule
thatregarding
is subjectfamily
to changing
landscapes.
Ever-evolving
rules
regarding
administrative
practice.
According
to
the
2007
Odysseus
study,
Germany
policies and modifications have been very important in the last couple of years at both national
doesEuropean
not breach
provisions
of the
directive,
a decisionforon
an application
and
levelthe
and
explain why
a new
study onasconditions
family
reunificationfor
is family
timely
reunification
is
taken
within
the
9-month
period
required.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
358
58
GENERAL INTRO
Time establish ed by law or regulation with in which an applicatio n should be examin ed and extended
S tate
Sweden
the Netherlands
Examinatio n
9 months
9 months
(3 visa + 6
permit)
Extension
Undefined
6 months
Belgium
6 months
6 months
(2 X 3 months)
France
Portugal
Spain
Slovenia
Poland
6 months
3 months
3 months
2 months
1 month
No extension
3 months
No extension
No extension
1 months
Total
Undefined
Migration policies am
which have had a sig
12/15 months
Firstly, the 1970s oil c
labour migration poli
12 months
to legally enter EU m
migrants entered for t
6 months
6 monthsMeanwhile, the issue
3 monthsThe growing impact o
2 monthsright to family life rep
2 monthson Human rights, the
precisely, the right to
procedure
The survey demonstrates that huge differences still exist between the member expulsion
states. These
admission
of
concern first of all the time granted to the competent authorities for examining an application,third co
which ranges from one month to nine months. There is no explanation in the reports for such
A second major step o
a difference between countries. However, some objective comments may be drawn.
of Amsterdam, the Eu
basis,
adopted
Concerning examination delays, the national reports indicate that the shortest this
delays
areitin
determines
the
those countries which rely on general administrative rules (Poland, Slovenia and Germany). condit
residing lawfully on t
Deadlines enshrined in aliens' legislation are longer (Belgium, France, the Netherlands,
for exerci
Portugal, Spain and Sweden). Portugal and Spain stand in the middle, conditions
with delays
status
–
have
been em
determined by aliens' laws for examination of the application of three months.
However,
the novelt
Secondly, the column devoted to examination shows that among eight member
states
'technical'
adoption o
(Germany is not included), there are at least five different rules regarding the time period
the
Directive
within which an application should be examined. However, this wide diversity is reduced are clos
not to be
considered
when taking into account the possibility to extend the period due to the complexity
of the
integration
of migran
application. Three groups of member states thus emerge: member states where the cumulative
Justice's
interpretation
period is one year or more (Belgium, the Netherlands and probability Sweden); member
hasPortugal);
recognised the e
states where the full procedure lasts six months (France and in exceptional cases
states'months
margins of ma
and member states where the examination procedure does not last more than three
(Slovenia, Poland and Spain). Slovenia, Poland and Spain have the shortest deadline.
Family migration rule
the one hand, thi
As regards the extension period, it may in principle delay the whole process ofOn
examination
level,
and
on the othe
and therefore postpone the final decision on the application. In this context, member
states
vice
versa
.
may be tempted to rely, or to play, on this possibility to make the procedure longer. But it
must be added that the use of an extended period is framed by a provision of Directive
Family reunification
2003/86/EC; it should be exceptional and linked to the complexity of the application.
With
and modifica
regard to these two limits, it seems that Portugal is the only member state thatpolicies
has formally
and European level a
introduced in its legislation the exceptional nature of such an extension.
(I). However, such a s
59
3
59
It would therefore
be of relevance to further assess member states' rules in this regard and to
GENERAL
INTRODUCTION
try to define more precisely notions related to "exceptional circumstances" and the
"complexity of the application". This approach could be of great help for national
administrations
inamong
chargeEU
of implementing
reunification
rules
and itin
could
also
create
Migration
policies
member states family
have undergone
major
changes
recent
decades,
added
legal
certainty
and
security
for
applicants.
The
consultation
following
the
European
which have had a significant impact on family migration rules and policies.
Commission's Green Paper could be a timely opportunity to develop in-depth discussion and
provide
further
in this regard.
It is worth
noting
that member
an interpretation
from restrictive
the Court
Firstly,
thefor
1970s
oil input
crisis triggered
tremendous
change.
It drove
states to adopt
of
Justice
on
this
matter
would
be
of
great
help.
labour migration policies. As a consequence, family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
To sum entered
up:
migrants
for the purpose of family reunification.
√ National
rules of
vary
widely
between member
states
and in
lead
to very diverse
possibilities.
Meanwhile,
the issue
family
reunification
has been
gaining
importance
at European
level.
Examination
periods
based on
general
administrative
rules
are generally regarding
shorter than
The √
growing
impact of
the European
Court
of Human
Rights and
its jurisprudence
the
by migration
rules.
right to those
familyestablished
life represented
a first step.
On the basis of Article 8 of the European Convention
√ Differences
between
member
rules aremember
less significant
of the
extension
on Human
rights, the
Court has
framedstates
and limited
states' room
forpossible
manoeuvre.
More
periods
are taken
into life
account.
precisely,
the right
to family
has been used as a strong and successful argument against
√ Useprocedures
of the extension
periodstates.
shouldItremain
within
boundaries
by Directive
expulsion
in member
has also
beenthesuccessful
in defined
cases regarding
the
2003/86/EC
admission
of third country nationals.
√ Further specifications and discussions regarding the notions of "exceptional
circumstances"
and "complexity
of level
the application"
beentry
helpful.
A second
major step occurred
at European
after 1999. would
With the
into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Whenever
decide
rules
regarding
the exceptional
extension
of the
this
basis, it member
adopted astates
Directive
on to
theadopt
right to
family
reunification.
This Directive
(2003/86/EC)
period
of
examination,
it
must
be
highlighted
that
such
an
extension
should
also
be
compatible
determines the conditions for exercising the right to family reunification for third country nationals
with thelawfully
period of
of legal
before
theSince
sponsor
is joined
his/her
family.
residing
ontwo
the years
territory
of anresidence
EU member
state.
then,
severalby
rules
related
to the
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
3. Examination rules vs. Two-year deadline before family joins sponsor
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
As explained
above,
8 rules.
of Directive
2003/86/EC
stipulates
that
"Member
States
may
'technical'
adoption
of Article
common
It proposes
a 'new' reading
of the
issue.
Firstly, the
roots
of
require
the
sponsor
to
have
stayed
lawfully
in
their
territory
for
a
period
not
exceeding
two
the Directive are closely linked to the integration of migrants. In this view, the Directive should
years,
having his/her
family
membersmigration
join him/her".
not
to before
be considered
as a tool
to manage
but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
This means
that the sponsor
be has
joined
by his/her
family
latest
two dimension:
years of legal
Justice's
interpretation
of theshould
Directive
played
a strong
role at
in the
giving
it aafter
crucial
it
residence
in
the
member
state.
As
a
consequence,
rules
applicable
in
the
member
states
with
has recognised the existence of the right to family reunification and firmly delineated
member
regardmargins
to prior legal
residence and delays for examination should not lead to an overall procedure
states'
of manoeuvre.
lasting more than two years. A distinction should be made, however, between law and practice.
Family migration rules and policies have been constantly modified for almost 40 years now.
Compatibility
in law
On
the one hand,
this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
Regarding
vice
versa. delays established in law, and according to reports written for the purpose of this
study, eight member states are in line with this requirement (Belgium, France, Germany, the
Netherlands,
Portugal,
Spainthat
andisSweden).
Family
reunification
is a Slovenia,
sensitive issue
subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
The European
French rules
a very good
ofon
theconditions
framework
by the directive
and
levelgive
and explain
why aexample
new study
for established
family reunification
is timely
which
must
be
respected.
In
France,
the
possibility
to
claim
for
family
reunification
(I). However, such a study needs to be delineated (II) and its methodology defined (III). is opened
360
60
after 18 months of legal residence and the examination procedure lasts a maximum
of six INTRO
GENERAL
months. 18 months and six months make two years. From this perspective and according to
the rules, France complies with the requirements of EU rules.
Migration policies am
Poland does not fulfil the two-year requirement. The sponsor must have residedwhich
in Poland
have at
had a sig
least for two years on the basis of a residence permit for a fixed period. So, the period of
residence and the procedure, which lasts a maximum of two months, are longer
than
Firstly,
thetwo
1970s oil c
years. Only the length of prior legal residence is shorter in the cases of refugees
and
labour migration
poli
beneficiaries of subsidiary protection. The stays of foreigners enjoying the statustooflegally
long-term
enter EU m
residents and foreigners who obtained the right to settle are obviously longer. migrants entered for t
In two member states, however, some reservations are apparent. In Spain, there Meanwhile,
are problemsthe issue
related to the family reunification procedure applicable to already reunified ascendants
whoimpact o
The growing
are themselves asking to benefit from family reunification. In such cases, family
reunion
is life rep
right to family
only possible once the ascendants have acquired a long-term residence permitonissued
after
Human rights, the
five years of uninterrupted legal residence. In such cases, the law establishesprecisely,
a periodthe
of right to
longer than two years, which in the eyes of national experts breaches the Directive.
expulsion procedure
admission of third co
In the Netherlands, the rule is for the time being compatible with the directive's requirements.
But a proposed law is currently being discussed that would introduce a one-year period
before
A second
major step o
the sponsor could apply for family reunification. Hence, the one-year period - which
must
be the Eu
of Amsterdam,
added to the period of preparation of the integration test, the period of assessment
of
the
this basis, it adopted
application for an authorisation to stay and the period of the examination of the
application
determines
the condit
for a residence permit in the Netherlands – may lead to a longer procedure than
thelawfully
one
residing
on t
allowed by Directive 2003/86/EC.
conditions for exerci
Compatibility in practice
status – have been em
However, the novelt
Although in the majority of cases national rules are compatible with the two-year
period,adoption
in
'technical'
o
more than half of the member states, including Poland, problems may occur inthe
practice.
Directive are clos
not to be considered
In Belgium, problems may derive from the difficulty for applicants to determine
integrationand
of migran
demonstrate the point of departure of the delays.
Justice's interpretation
has recognised the e
In France, the six-month period for examining the application may easily be exceeded.
In this of ma
states' margins
case, the application is considered overruled. But this does not prevent the competent
authority from formally accepting or rejecting formally the application for family reunification.
Family migration rule
On the one hand, thi
In the Netherlands, the main problems occur with regard to integration level,
tests. and
Family
on the othe
members have to take a language and civic test in the country of origin. If the
test
is .not
vice versa
successfully taken, then family members, and especially illiterate spouses, do not receive a
visa for family reunification. In this regard, the procedure may last more than two
years.
Family
reunification
policies and modifica
In Spain, the authorities have three months to make a decision on the application.
After level a
and European
a positive decision on the sponsor's application, another period of two months begins
within
(I). However, such a s
61
3
61
which family INTRODUCTION
member(s) can apply for the visa in the country of origin. Diplomatic missions
GENERAL
or the consular offices have up to two months to deliver the visa. But in practice, a much
longer period applies. Indeed, the persons concerned are sometimes given an "appointment"
six months
or more
afterEU
themember
application
a visa
has been
lodged.
Then,
the procedure
Migration
policies
among
statesfor
have
undergone
major
changes
in recent
decades,
depends
on
the
internal
organisation
and
way
of
functioning
of
consulates
abroad.
Therefore,
which have had a significant impact on family migration rules and policies.
and taking into account the need to have resided in the Netherlands for at least one year
beforethe
applying
forcrisis
family
reunification,
thechange.
whole Itprocess
could easily
longer
than
Firstly,
1970s oil
triggered
tremendous
drove member
states totake
adopt
restrictive
two
years.
labour migration policies. As a consequence, family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
In four member
states
Germany,
Portugal,
Slovenia and Sweden – delays are in law and
migrants
entered for
the –purpose
of family
reunification.
practice respected.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
The growing
adoptionimpact
of rules
compatible
requirements
of Directive
2003/86/EC isregarding
not enough
The
of the
Europeanwith
Court
of Human Rights
and its jurisprudence
the
where
national
practices
show
that
these
requirements
are
not
respected.
Consequently,
right to family life represented a first step. On the basis of Article 8 of the European Convention
monitoring
how rules
are implemented
in practice
is crucial
and room
should
fully part of
the
on
Human rights,
the Court
has framed and
limited member
states'
forbe
manoeuvre.
More
future
strategy
that
will
be
followed
by
the
Commission
on
the
basis
of
the
Green
Paper.
On
precisely, the right to family life has been used as a strong and successful argument against
the one hand,
appropriate
monitoring
should
limit
practices
aimed at breaching
EU rules. On
expulsion
procedures
in member
states.
It has
also
been successful
in cases regarding
the
the
other
hand,
and
consequently,
this
should
aim
at
better
protecting
the
right
to family
admission of third country nationals.
reunification recognised for third country nationals legally residing in an EU member state.
Finally,
question
of appealatprocedures
mayafter
also1999.
be addressed.
Indeed,
A
secondthe
major
step occurred
European level
With the entry
intodiscussions
force of theshould
Treaty
determine
whether
the
two-year
period
covers
the
first
decision
on
the
application
or the On
full
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
procedure
including
appeals
against
negative
decisions.
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
To sum lawfully
up:
residing
on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
exception
of Poland,
all ofwhich
the member
two-year
limit in law.
status√ – With
have the
been
embedded
in EU rules,
impact states
upon respect
nationalthe
rules
and practices.
√ However, the majority of member states in practice exceed the timeframe set by EU rules.
√ Further
monitoring
is needed
theofcompatibility
national
with the
However,
the novelty
introduced
byregarding
the Treaty
Amsterdam of
goes
muchpractices
further than
the
two-year
period.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
√ Discussion
regarding
thetoinclusion
of appeal
procedures
in the
two-year
period should
the Directive
are closely
linked
the integration
of migrants.
In this
view,
the Directive
should
be
developed.
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
4. No
decision the
issued
in time
has
recognised
existence
of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
Alongside decisions taken after the two-year period stand situations whereby no decision
is taken
regarding
at been
all. Directive
situations
Family
migration
rulesthe
andapplication
policies have
constantly 2003/86/EC
modified for takes
almostsuch
40 years
now.
into
account.
It
states:
"Any
consequences
of
no
decision
being
taken
by
the
end of
On the one hand, this is due to the modification of migration policies at national and European
the period
(…)
beofdetermined
by the on
national
legislation
the probably
relevant
level,
and onprovided
the other, to
theshall
impact
family reunification
migration
flows andofmost
member
state."
vice versa.
This provision
is notisvery
bindingissue
as it that
refers
to national
rules to cope
with the
Family
reunification
a sensitive
is principally
subject to changing
landscapes.
Ever-evolving
situation.
In
these
circumstances,
national
provisions
are
diverse
and
are
divided
into
two
policies and modifications have been very important in the last couple of years at both national
main
categories:
member
states
where
the
application
is
considered
implicitly
accepted
and
and European level and explain why a new study on conditions for family reunification is timely
those
where such
the application
is implicitly
rejected.
(I).
However,
a study needs
to be delineated
(II) and its methodology defined (III).
362
62
In two member states, if the administration does not make a decision within the
requested INTRO
GENERAL
period, the application for family reunification is accepted. This solution, which is applicable
in Belgium and Portugal, is by far the most favourable to the applicant. It forces the
administration to acknowledge that it did not proceed in due time or in anMigration
appropriate
policies am
manner and therefore takes a position against its own "failure".
which have had a sig
At the opposite side of the spectrum stand France, the Netherlands, Slovenia andFirstly,
Spain.the
Here,
1970s oil c
there is no "failure" on the part of the administration. Applicants are entitled to appeal
such
'silent
labour migration poli
decisions'. In the Netherlands, the Administrative Act allows "virtual decisions"totolegally
be taken,
enter EU m
which can be appealed. This does not imply that the authorities have to make a positive
decision
migrants
entered for t
but the court will demand that the authorities decide on the application within a certain time
limit. Since October 2009, the applicant can receive an administrative fine from the
authoritiesthe issue
Meanwhile,
on the grounds that they did not decide within the legal limit. This type of sanctionThe
for growing
failure toimpact o
act also exists in France, where the applicant may enforce the state's responsibility.right to family life rep
on Human rights, the
In three member states, the rules are somewhat different. The situation is quite
simplethe
in right to
precisely,
Germany as sanctions are apparently not applicable. In Sweden, there are
no
legal
expulsion procedure
consequences for the applicant regarding either the application or the decisionadmission
if the nineof third co
month period is exceeded. In Poland, and according to the Code of Administrative Procedure,
administrative authorities shall inform the parties of any failure to deal with a case
within major
the step o
A second
deadline. They have to explain the reasons for the delay and define a new deadline
for
dealing
of Amsterdam, the Eu
with the case. The same obligation shall also apply in the event of a delay caused
factors
this by
basis,
it adopted
that are beyond the control of the administrative authority responsible. In the event
of
a
failure
determines
the condit
to deal with a case within the deadline, the parties have the right to make an residing
interlocutory
lawfully on t
objection to the higher public administration authority. If this authority accepts the
validity for
of exerci
conditions
the complaint, it shall set an additional deadline for dealing with the case, and
clarify
the
status – have been em
reasons for the delay and the identity of the parties responsible for the failure to deal with the
case within the deadline. Where necessary, the authority shall take steps to ensure
that future
However,
the novelt
deadlines for dealing with the case are respected. Since February 2011, a new 'technical'
law refers adoption
to
o
responsibility for damage caused civil servants' gross violation of law.
the Directive are clos
not to be considered
In the end, the absence of an answer to an application leads to different typesintegration
of solutions
of migran
among member states. Here again, and notwithstanding national administrative
cultures,
Justice's
interpretation
two common approaches can be identified:
has recognised the e
states' margins of ma
The first relates to situations where no decision leads to a positive decision for the applicant.
In a situation where the failure lies on the shoulders of the administration, Family
one positive
migration rule
outcome for the applicant is to issue an implicit decision of acceptance. This may
Onconstitute
the one hand, thi
a positive step forward in the definition of common rules in the field of family reunification
level, and on the othe
and ease the procedure so as to promote family reunification.
vice versa.
Secondly, the possibility to engage member states' responsibility shouldFamily
be further
reunification
discussed. This will enhance migrants' protection and put some pressure policies
on national
and modifica
authorities in exercising their duty to examine appropriately and in due time and
applications
European level a
for family reunification.
(I). However, such a s
63
3
63
GENERAL INTRODUCTION
Delay for
examination
BE
Extension
6 m onths �
Recap of rules applicable
Decision not taken in
due time
Application accepted
Delay in Law
(prior + exam)
OK � env. 15 months
complexity
of states have undergone major changes
9 monthsamong EU
Migration policies
member
application
which
a significant impact
on family
migration
OKpolicies.
�
FR have had
6 months
No
Application
rejected rules and
Delay in practice
(prior + ex am)
NO
be >decades,
2 yea rs
in Could
recent
NO
Could be > 2 yea rs
See repo rt
Firstly,
1970s
oilrules
crisis triggered
restrictive
GER the No
specific
No tremendous
Notchange.
applicable It drove member
In time states to adopt
In time
NL
6amconsequence,
onths �
Application
rejected
OK unless
rem edy one of the NO
labour
migration
policies.
As
family
reunification
became
main
ways
6 months
complexity of
ag ains t neg ative
Could be > 2 yea rs
decision confirm
for visa
Duethe
to integration
testsof
to legally enter +EU member application
states. Figures in some EU countries
that
majority
3 months for visa
(prosecuto r's advi ce
abroad
migrants entered
for the purpose
of
family
reunification.
or i nvestigations
needed)
PL
1 month
1 month �
Specific provisions�
NO
NO
Meanwhile, the issue of family
has
been gaining in
at European
compreunification
lexity of
new deadline
Is >importance
2 yea rs
Is > 2 years level.
application
See
report
See
repo rt
The growing impact of the European Court of Human Rights and its jurisprudence regarding
the
PT
3 months
Application accepted
OK
OK
3 m onths �
right to family life represented
a firstofstep. On the basis of Article 8 of the European Convention
complexity
application
on Human rights, the Court has
framed and limited member states' room for manoeuvre. More
SLO
2 months
No
Application rejected
OK
OK
precisely,
the3 months
right to family life
used as
a strong andOKsuccessful argument
against
SP
No has beenApplication
rejected
NO � delays
for
appo intment
at Emb assthe
ies
expulsion procedures in member states. It has also been successful in cases
regarding
or Consulates abro ad very
admission of third country nationals.
long
Yes � incomplete
SW
9 months
No legal
OK
OK
file + complexity of
consequences
A second major step occurredapplication
at European level after 1999. With the entry into force of the Treaty
18 + 6 = 2 years
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this
basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
C. Costs
determines the conditions for exercising the right to family reunification for third country nationals
residing
lawfully
on the
territory of an
EUamember
state. Since
several rules related
to the
The right
to family
reunification
has
cost mostly
linkedthen,
to administrative
fees (visas,
conditions
for
exercising
the
right
to
family
reunification
–
as
well
as
rights
deriving
from
this
residence permits, proof ...) that applicants have to cover.
status – have been embedded in EU rules, which impact upon national rules and practices.
In Belgium, the cost of the procedure depends on the municipality in which the application
However,
the novelty introduced by the Treaty of Amsterdam goes much further than the
is introduced.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the
Directivethe
arespouse
closelyhas
linked
to the
of migrants.
this view, permit.
the Directive
should
In France,
to pay
a integration
tax up to €340
for theInresidence
The price
is
not
to
be
considered
as
a
tool
to
manage
migration
but
rather
as
a
means
of
enhancing
the
reduced for children entering France for family reunification, who have to pay €110. The
integration
of that
migrants
legally
residingfrom
in their
hostreunification
society. Secondly,
theare
European
of
rules specify
children
benefiting
family
but who
already Court
residing
Justice's
interpretation
of
the
Directive
has
played
a
strong
role
in
giving
it
a
crucial
dimension:
it
in France have to pay €340 for the issuance of their first residence permit when they turn 18.
has
recognised
the
existence
of
the
right
to
family
reunification
and
firmly
delineated
member
Renewal of residence permits in France costs €140. There are no other costs than those
states'
margins
of manoeuvre.
requested
for the
residence permit.
Family
migration
and
policies have
been constantly
modified
for of
almost
40 yearspermit
now.
In Germany,
the rules
Act of
Residence
Regulation
indicates that
the cost
a residence
On
the
one
hand,
this
is
due
to
the
modification
of
migration
policies
at
national
and
European
issued for family reunification is €60. There are no other costs other than those requested for
level,
and on the
other, to the impact of family reunification on migration flows and most probably
the residence
permit.
vice versa.
The Netherlands is the most expensive member state surveyed. Before July 2011, costs
Family
reunification
is a sensitive
issue very
that ishigh.
subject
to 1changing
landscapes.
Ever-evolving
(in brackets
hereinafter)
were already
Since
July 2011,
they have
increased.
policies
and
modifications
have
been
very
important
in
the
last
couple
of
years
at
both
The fees for a visa for family reunification are now €1,250 (€830) for the principalnational
family
and
European
and
study
on conditions
familytogether.
reunification
timely
member
and level
€250
forexplain
each why
extraa new
family
member,
if theyfor
travel
Afterisarrival,
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
364
64
they have to pay €300 (€188) for each family member for the residence permit.
Renewal INTRO
GENERAL
of the residence permit costs €375 (€288). A visa for a child who is adopted or taken
into custody costs €950 and the residence permit costs €300. Furthermore, adult
family members must pay to take the integration test, which costs €350 each time
for each
Migration
policies am
family member. The materials needed to prepare for the test cost €110 (€68.90).
In the
which have
had a sig
end, a spouse who wants to join his/her partner in the Netherlands will have to pay around
€2,000 (formerly €1,435).
Firstly, the 1970s oil c
labour migration poli
In Poland, the stamp duty for residence permit is around €85 (340 PLN). This to
price
is fixed
legally
enter EU m
for a defined period of time and has not been changed since 2006.
migrants entered for t
In Portugal, three different prices are applicable. Applicants travelling withoutMeanwhile,
a residencethe issue
visa have to pay €250. Applicants travelling with a residence visa will pay aThe
lower
price,impact o
growing
as they will be asked to pay €140. Finally, nationals of Angola, Brazil, right
CapetoVerde,
family life rep
Guinea-Bissau, Mozambique, Sao Tome and Principe will have to pay €35. All these
permits
on Human
rights, the
can be sent to the applicant's home address for an extra €6.
precisely, the right to
expulsion procedure
In Slovenia, applicants for family reunification will have to pay around €37.
This price
admission
of third co
comprises €31.91 for applications lodged at the administrative unit and €5.42 for the
issuance of the residence permit. Additional costs may be incurred for translation
or step o
A second major
verification of documents. These additional costs may exceed the administrative
costs.
of Amsterdam, the Eu
this basis, it adopted
In Spain, the fee the sponsor has to pay in order to apply for reunification is €10.20.
The visa
determines
the condit
is free of charge and once in Spain, each family member reunified pays €15 forresiding
the issuance
lawfully on t
of the residence permit.
conditions for exerci
status – have been em
In Sweden, the cost for applying for a residence permit for family reunification is €169
(SEK 1,500) for adults and €84.50 (SEK 750) for minors. The prices were However,
modified the
in novelt
April 2011 and have tripled compared to the prices that were applicable in 2006
(€56
for
'technical' adoption o
adults and €28 for minors). In specific situations, some family members are exempted
fromare clos
the Directive
the payment.
not to be considered
State s
NL
FR
PT
SW
PL
GE R
SLO
SP
65
Costs for applications for family reunification
Adult
Children
1550
550
340
250
140
35
169
85
60
37
25,20
110
/
84,50
85
60
37
15
integration of migran
Justice's interpretation
Additional costs
has recognised the e
460 integ ration
states' margins of ma
abroad
(for adults)
Family migration rule
On the one hand, thi
level, and on the othe
vice versa.
Family reunification
policies and modifica
and European level a
(I). However, such a s
3
65
The table above
shows very significant differences between member states regarding the cost
GENERAL
INTRODUCTION
of applying for family reunification. Administrative costs differ from one member state to
another, but there is no real explanation for these discrepancies.
Migration policies among EU member states have undergone major changes in recent decades,
The Netherlands
is a very impact
specificoncase
that
needs to
be and
tackled
in an isolated manner.
which
have had a significant
family
migration
rules
policies.
The price for family reunification here is very high, something which is not very encouraging
for family
reunification.
Reunification
of a change.
two-child
family
wouldstates
costtoaround
€3,100.
Firstly,
the 1970s
oil crisis triggered
tremendous
It drove
member
adopt restrictive
In
any
case,
the
huge
fees
demanded
for
family
reunification
in
the
Netherlands
labour migration policies. As a consequence, family reunification became one of the main ways
constitute
an obstacle
to states.
the exercising
this EU
right.
The European
Commission
to
legally enter
EU member
Figures inofsome
countries
confirm that
the majorityhas
of
29
but
never
launched
an
infringement
procedure.
This
point is highly
highlighted
this
point
migrants entered for the purpose of family reunification.
problematic and remains a source of major concern. In this regard, a member of the
European Parliament
sentreunification
written questions
to the
European
Commissioner
for Home
Meanwhile,
the issue ofhas
family
has been
gaining
in importance
at European
level.
Affairs.
Commissioner
Cecilia
Malmström
replied
as
follows
"the
Commission
is
aware
of the
the
The growing impact of the European Court of Human Rights and its jurisprudence regarding
recent
modification
of
Dutch
national
legislation
raising
the
fees
for
residence
permits
for
right to family life represented a first step. On the basis of Article 8 of the European Convention
family
reunification
from
1
July
2011.
(…)
At
EU
level,
family
reunification
between
third
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
country nationals
Directive
2003/86/EC
on the
to family
reunification.
precisely,
the right istoregulated
family lifebyhas
been used
as a strong
and right
successful
argument
against
This
directive
has
no
specific
provisions
on
fees.
Nevertheless,
Member
States
have
to respect
expulsion procedures in member states. It has also been successful in cases regarding
the
the generalofprinciples
of EC
law (proportionality and 'effet utile') when setting their fees and
admission
third country
nationals.
should not apply excessive fees which can undermine the effect of the directive by
hampering
the right
to familyatreunification.
Therefore
the With
Commission
currently
A
second major
step occurred
European level
after 1999.
the entryisinto
force ofexamining
the Treaty
30
It
is
to
be
hoped
that
the
Commission's
the
Dutch
rules
in
light
of
these
general
principles".
of Amsterdam, the European Union (EU) gained competences in the field of migration
issues. On
appraisal
will
provide
for clear on
rules
thistomatter.
this
basis, it
adopted
a Directive
theinright
family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
While being
far on
more
is member
hard to explain
whythen,
the procedure
in related
Francetocosts
residing
lawfully
the"reasonable",
territory of anitEU
state. Since
several rules
the
more
than
ten
times
that
in
place
in
Spain.
It
costs
€560
for
a
two-child
family
to reunite
in
conditions for exercising the right to family reunification – as well as rights deriving
from this
France,
whereas
the
family
will
have
to
pay
€55.20
in
Spain.
status – have been embedded in EU rules, which impact upon national rules and practices.
To sum up:
However,
the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
√ Familyare
reunification
costs
differ
tremendously
between
member
the Directive
closely linked
to the
integration
of migrants.
In this
view, states.
the Directive should
√
The
differences
are
hard
to
explain
between
countries
where
of living
not to be considered as a tool to manage migration but rather as a meansthe
of cost
enhancing
the
is
comparable.
integration of migrants legally residing in their host society. Secondly, the European Court of
√ Large
familiesofcan
be disadvantaged
the dimension:
number ofit
Justice's
interpretation
the Directive
has played where
a strongcosts
role inincrease
giving it with
a crucial
family
members.
has recognised the existence of the right to family reunification and firmly delineated member
√ margins
Furtherofscrutiny
aimed at explaining how costs are calculated may be required in
states'
manoeuvre.
order to have a a fair procedure based on fair costs which does not prevent people
from exercising
theirpolicies
rights. have been constantly modified for almost 40 years now.
Family migration
rules and
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
SECTION 3 – MATERIAL CONDITIONS
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
As already
mentioned,
Directive
a set
of conditions
that member
and
European
level and explain
why2003/86/EC
a new studyestablishes
on conditions
for family
reunification
is timely
states
may
ask
applicants
for
family
reunification
to
fulfil.
Article
7
of
Directive
2003/86/EC
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
366
66
deals with material conditions. It indicates that member states may require the
sponsor to INTRO
GENERAL
prove that he/she has:
√
√
√
√
appropriate accommodation;
sickness insurance;
stable and regular resources;
complied with integration measures.
Migration policies am
which have had a sig
Firstly, the 1970s oil c
labour migration poli
The material conditions defined by Directive 2003/86/EC are not, for the totime
being,
legally
enter EU m
mandatory. This means that member states are not obliged to demand the fulfilment
of
one
migrants entered
for t
or all of these conditions.
Meanwhile, the issue
However, rules related to material conditions are, along with those dealing with
personalimpact o
The growing
scope, the most important and sensitive ones. First of all, because theyright
shape
the life rep
to family
conditions under which family reunification is possible: they thus give a strong
indication
on Human rights, the
of the openness of member states in the field of family reunification. Secondly,
precisely,rules
the right to
relating to material conditions are under strain in some member states and
subject procedure
to
expulsion
modifications in order to make family reunification more difficult. Although admission
this trendofisthird co
not true for all of the member states, it was strong enough to receive some echo at the
level of heads of state and government in the European Pact on ImmigrationAand
Asylum
second
major step o
adopted in 2008.
of Amsterdam, the Eu
this basis, it adopted
In this context, an analysis of material conditions applicable in the member states
should
determines
the condit
give an in-depth view of the state of play and shed some light on trends that may
or
may
not on t
residing lawfully
be apparent in some countries, as well as on specific rules.
conditions for exerci
I. Accommodation conditions
status – have been em
However, the novelt
According to Article 7, paragraph 1, a) of Directive 2003/86/EC, member states'technical'
may require
adoption o
the person who has submitted the application for family reunification to provide
evidenceare clos
the Directive
that the sponsor has "accommodation regarded as normal for a comparable family
in the
not to be
considered
same region and which meets the general health and safety standards in force inintegration
the Member
of migran
State concerned".
Justice's interpretation
has recognised the e
Of the nine member states surveyed, three – the Netherlands, Slovenia and
Sweden
– of ma
states'
margins
did not ask for such a condition to be fulfilled in 2007. In 2011, this has slightly
changed, as Sweden has joined the group of states requesting this condition
be
Family to
migration
rule
fulfilled and the Dutch Government is currently considering reintroducing
such
On the one hand, thi
a requirement.
level, and on the othe
A. Conditions requested in the member states
vice versa.
Family reunification
Directive 2003/86/EC frames the use of this condition. On the one hand, the accommodation
policies and modifica
should be regarded as normal for a comparable family in the same region.and
This
means level a
European
that national authorities are not entitled to ask more from foreigners than
they
asksuch a s
(I). However,
67
3
67
of nationals. INTRODUCTION
If the authorities consider
GENERAL
accommodation of 50 m2 to be sufficient for a
'national' family, they cannot ask foreigners to have 75 m2 accommodation for the samesized family.
Migration policies among EU member states have undergone major changes in recent decades,
On thehave
other
hand,
the accommodation
should
meet the
general
health and safety standards
which
had
a significant
impact on family
migration
rules
and policies.
in force in the member states concerned. Here, the authorities are entitled to refuse family
reunification
if the
accommodation
is not safe
enough.
Firstly,
the 1970s
oil crisis
triggered tremendous
change.
It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
In legally
each ofenter
theseEU
cases,
the requirements
to protect
third country
being
to
member
states. Figures seek
in some
EU countries
confirmnationals
that the from
majority
of
discriminated
against
compared
to
nationals,
or
exploited
by
slumlords.
These
purposes
are
migrants entered for the purpose of family reunification.
more or less openly pursued in national legislations.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
In Belgium,
the issue
accommodation
conditions
heavily discussed
The
growing impact
of theofEuropean
Court of Human
Rightshas
and been
its jurisprudence
regardingand
the
subject
to
judicial
appeal.
In
February
2010,
the
Council
of
State
defeated
9 of
right to family life represented a first step. On the basis of Article 8 of the EuropeanArticle
Convention
theHuman
2007 Royal
linked
criterion
of "sufficient
housing"
to provisions
on
rights, Decree,
the Courtwhich
has framed
andthe
limited
member
states' room
for manoeuvre.
More
enshrined
in
regional
Housing
Codes.
The
court
stated
that
the
dismissal
of against
family
precisely, the right to family life has been used as a strong and successful argument
reunification
applications
due to
insufficient
housing
conditionsin in
theregarding
sense ofthea
expulsion
procedures
in member
states.
It has also
been successful
cases
regional
Housing
Code
inflicts
more
rigorous
preconditions
than
the
regional
codes
admission of third country nationals.
initially intended. As the intention of the legislator was de facto misconceived by Article 9
ofsecond
the Royal
this at
provision
theentry
adoption
of of
new
rules,
A
majorDecree,
step occurred
Europeanwas
levelabolished.
after 1999. Until
With the
into force
the Treaty
which
occurred
with
the
adoption
of
the
Royal
Decree
of
26
August
2010,
applicants
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
werebasis,
no longer
obliged
to present
sufficient
housing. This
SinceDirective
the entry
into force
this
it adopted
a Directive
on theproof
right of
to family
reunification.
(2003/86/EC)
of
the
Royal
Decree,
"accommodation
is
sufficient
in
the
sense
of
Articles
10
and
10 bis
determines the conditions for exercising the right to family reunification for third country nationals
of
the
law,
for
the
foreigner
and
for
the
members
of
his/her
family
who
ask
to
join
residing lawfully on the territory of an EU member state. Since then, several rules related tohim,
the
if it satisfies
the elementary
of safety, –healthiness
and habitability
in this
the
conditions
forto
exercising
the rightrequirements
to family reunification
as well as rights
deriving from
sense
of
the
[Civil
Code
–
provisions
related
to
rental
contracts]".
Refugees
are
exempt
from
status – have been embedded in EU rules, which impact upon national rules and practices.
this requirement.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
In France,adoption
the lawofstipulates
that family
reunification
may of
betherefused
if thethe
applicant
'technical'
common rules.
It proposes
a 'new' reading
issue. Firstly,
roots of
does
not
prove
that
he/she
has
or
will
have
upon
the
family's
arrival
accommodation
the Directive are closely linked to the integration of migrants. In this view, the Directive should
regarded
normal for
family
in the same
region.
condition
is assessed
not
to be as
considered
as aa comparable
tool to manage
migration
but rather
as aThis
means
of enhancing
the
on
the
basis
of
the
living
area
available
and
with
regard
to
the
size
of
the
family.
integration of migrants legally residing in their host society. Secondly, the European Court
of
The accommodation
also meet
conditions
and
roominess
Justice's
interpretation ofmust
the Directive
hasthe
played
a strong of
rolehygiene,
in givingcomfort
it a crucial
dimension:
it
as recognised
stated by the
appropriate
Thesereunification
conditionsand
concern
the composition
has
existence ofregulations.
the right to family
firmly delineated
member
and dimension
of the housing, openings and ventilation, the layout of the kitchen,
states'
margins of manoeuvre.
bathroom and toilet, as well as gas, electricity and water supplies. Rules applicable in
France migration
are very precise.
good example
of constantly
this is the modified
size of the
This
Family
rules andApolicies
have been
for accommodation.
almost 40 years now.
criterion
is
adjusted
according
to
the
region
in
which
the
application
is
lodged.
Hence,
On the one hand, this is due to the modification of migration policies at national and European
France
is on
divided
intotothree
regionsofor
zones
which takeoninto
account
theand
property
market,
level,
and
the other,
the impact
family
reunification
migration
flows
most probably
which
may
be
very
different
according
to
these
specific
regions.
The
rules
then
take
into
vice versa.
account the size of the family and adjust the requested conditions accordingly. The table
below shows
how the
is made.
Family
reunification
is acalculation
sensitive issue
that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
368
68
Zones
Zone A (Paris and
immediate
neighbourhood, the
Fre nch Riviera and
regions bordering
Switzerlan d)
Couple
3 pers.
4 p er s.
5 pers.
6 pers.
7 pers.
22 m 2
32 m2
42 m 2
52 m 2
62 m2
72 m 2
82 m 2
(+ 5 m2 /
a dded policies am
Migration
per sons)
which have had a sig
Zone B (agg lomeration
of more than 50,000
inhabitants, some cities
bordering Paris region,
coastal and border
regions)
24 m 2
34 m2
44 m 2
54 m 2
64 m2
74 m 2
Zone C (other parts of
28 m 2
38 m2
48 m 2
58 m 2
68 m2
78 m 2
France)
GENERAL
INTRO
8 pers.
2
84 m
Firstly,
the 1970s oil c
(+ 5 m2 /
labour
migration poli
a dded
toper
legally
sons) enter EU m
migrants entered for t
88 m 2
(+
5 m2 /
Meanwhile,
the issue
a dded
The
impact o
pergrowing
sons)
right to family life rep
on Human rights, the
In Germany, applicants for family reunification have to prove they have sufficient
precisely, the right to
accommodation. The definition of sufficient accommodation is established by the Aliens'
expulsion procedure
Law, which states that for adequate housing there is no requirement other than that requested
admission of third co
from a person looking for rental housing subsidised by the state. Accommodation is not
sufficient if it does not meet the legal provisions applicable to Germans in terms of quality
A second major step o
and occupation. Children are taken into account in the assessment of sufficient
of Amsterdam, the Eu
accommodation after the age of two.
this basis, it adopted
determines the condit
In Poland, the Act on Aliens provides that information on legal title applicable to the current
residing lawfully on t
or intended place of housing and documents confirming the cost of housing must be
conditions for exerci
included in the application. Polish rules do not ask for any specific conditions to be fulfilled
status – have been em
regarding the size of the accommodation or its salubriousness. It must however be obvious
to national experts that the accommodation is suitable for living in. This means for instance
However, the novelt
that the alien cannot rent a basement or a barn.
'technical' adoption o
the Directive are clos
In Portugal, applicants for family reunification must prove that they have accommodation.
not to be considered
But the rules in this member state do not indicate what type or size of accommodation
integration of migran
should be rented or own by the applicant.
Justice's interpretation
has recognised the e
The rules were modified in Spain by a law in 2009 and by a Royal Decree in 2011. The
states' margins of ma
decree defines the conditions applicable in this regard. Broadly speaking, proof of
appropriate accommodation takes into consideration, on the one hand, the number of rooms
Family migration rule
available with regard to the number of persons living in the house and, on the other hand,
On the one hand, thi
habitability and the equipment available in the accommodation. Spanish rules do not
level, and on the othe
include any specific provisions regarding the comparability of requirements asked of
vice versa.
foreigners and those requested of nationals.
Family reunification
Finally, Sweden joined the group of countries that impose accommodation conditions after
policies and modifica
a modification of the law in 2010. Since then, the sponsor must have accommodation of an
and European level a
adequate size and standard for the sponsor and the family member applying for
(I). However, such a s
69
3
69
reunification.INTRODUCTION
The Migration Board
GENERAL
has the authority to give directions regarding the
requirements of size and standard of accommodation. According to these directions, the
accommodation should be of a reasonable standard and an appropriate size for the number
of personspolicies
who areamong
supposed
to live instates
it. For
twoundergone
adults without
should
be at
Migration
EU member
have
majorchildren,
changes there
in recent
decades,
least
one
bedroom,
one
living
room
and
a
kitchen
or
a
kitchenette.
If
children
are
to
live
in
which have had a significant impact on family migration rules and policies.
the accommodation there should be more bedrooms. But two minor children can share one
bedroom.
It should
be added
thattremendous
according to
Swedish
rules,member
severalstates
third to
country
nationals
Firstly,
the 1970s
oil crisis
triggered
change.
It drove
adopt restrictive
are
exempted
from
this
condition.
Such
exceptions
apply
where
the
sponsor
is
a
child,
labour migration policies. As a consequence, family reunification became one of the main
waysa
parent
of
a
child,
a
citizen
in
Sweden,
another
EEA-state
or
Switzerland,
a
refugee,
a
quota
to legally enter EU member states. Figures in some EU countries confirm that the majority of
refugee, entered
or a person
eligible
forofsubsidiary
protection. Exceptions also apply if the sponsor
migrants
for the
purpose
family reunification.
has a permanent residence permit and has been living in Sweden with a residence permit to
settle for at least
fourofyears.
Meanwhile,
the issue
family reunification has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
Accommodation
conditions raise
following
issues:
right
to family life represented
a firstthe
step.
On the basis
of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
This is athe
domain
where
rulesasregarding
family
reunification
haveagainst
been
precisely,
right to
familyvarious
life hasnational
been used
a strong and
successful
argument
adopted
or
specified
in
recent
years.
These
modifications
demonstrate
the
increasing
expulsion procedures in member states. It has also been successful in cases regarding the
importance
thecountry
issue for
member states.
admission
of of
third
nationals.
nearlymajor
all ofstep
theoccurred
memberat states
implementing
the accommodation
AInsecond
European
level after 1999.
With the entry intocondition,
force of thecriteria
Treaty
comparing
the
size
of
the
house
and
the
size
of
the
family
are
taken
into
consideration.
Most
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
On
of
the
time,
the
comparability
to
requirements
applicable
to
nationals
is
taken
on
board.
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
The criterion
to health
andEUsafety
standards
seems
to several
be lessrules
implemented
in
residing
lawfullyrelating
on the territory
of an
member
state. Since
then,
related to the
national
rules.
Member
states
and
the
European
Commission
could
be
encouraged
to
conditions for exercising the right to family reunification – as well as rights deriving from this
further
analyse
this
point.
It
could
be
the
basis
of
an
exchange
of
national
experience
and
status – have been embedded in EU rules, which impact upon national rules and practices.
good practice, and help at the same time to enhance the fight against slumlords.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
In this regard,
the option
laid down
Article 7a of
directive
'technical'
adoption
of common
rules. Itinproposes
'new'
reading2003/86/EC
of the issue.allowing
Firstly, themember
roots of
states
to
make
use
of
the
accommodation
condition
is
accompanied
by
obligations.
the Directive are closely linked to the integration of migrants. In this view, the DirectiveIndeed,
should
as soon
member states
decide
to implement
thisbut
condition
in atheir
national
legislation,
not
to beas
considered
as a tool
to manage
migration
rather as
means
of enhancing
the
they should
thelegally
lines residing
delineated
by the
directive.
this view,
that housing
integration
of follow
migrants
in their
host
society. In
Secondly,
theproof
European
Court of
conditions
are respected
comprise
the aliving
general
regardingit
Justice's
interpretation
of theshould
Directive
has played
strongarea
roleand
in giving
it astandards
crucial dimension:
health
and
safety.
These
are
not
alternative
but
cumulative
criteria.
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
Finally, the examination of the accommodation condition should, according to the
Chakroun
case law,
individualised.
Family
migration
rulesbeand
policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
B. Proof
vice
versaof
. accommodation conditions
In mostreunification
of the member
analysed,
the issatisfaction
the accommodation
condition is
Family
is a states
sensitive
issue that
subject to ofchanging
landscapes. Ever-evolving
mainly
proven
by
presenting
a
rental
agreement
or
a
title
of
property.
This
is
the national
case in
policies and modifications have been very important in the last couple of years at both
Belgium,
France,
Poland,
Portugal,
Spain
and
Sweden.
But
the
rules
in
these
member
states
and European level and explain why a new study on conditions for family reunification is timely
differ
in
scope
and
some
are
more
precise
than
others.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
370
70
In Belgium, a previous regulation specified that to prove that a sponsor hasGENERAL
appropriate INTRO
accommodation, he/she must provide proof that a housing lease has been registered or
provide a title of property. These documents constitute a presumption that the condition is
fulfilled. The regulation added that the proof would be accepted provided
that policies
the
Migration
am
accommodation is not declared unhealthy by the competent authorities. The which
requirements
have
had
a
sig
introduced by Belgian regulation are the subject of criticism.31 Indeed, the obligation to
provide proof of registration is limited, as the registration does not give anyFirstly,
information
the 1970s oil c
regarding the size of the accommodation. In this regard it does not help to
determine
labour
migration poli
whether the accommodation is big enough for the family. Since 2011, the to
condition
of EU m
legally enter
sufficient accommodation is directly defined in the new Act. Hence, the adequate
housing
migrants entered for t
must now "meet the conditions for a building that is leased as a residence". An implementing
Royal Decree needs to be adopted to clarify this condition.
Meanwhile, the issue
The growing impact o
In France, the list of appropriate documents to be provided is established by a bylaw.
takes life rep
right toIt family
into account a series of situations that may occur. Tenants must provide the lease
agreement
on Human rights, the
and the last electricity or telephone bill. Owners must provide a deed ofprecisely,
ownership.
the right to
Foreigners housed by their employers must present an attestation produced by the
employer
expulsion
procedure
that the foreigner benefits from an accommodation. The attestation must specify
the length
admission
of third co
and conditions of occupation of the house. Foreigners accommodated free of charge will
provide the lease or the last rent receipt of the tenant or the title, accompanied
a step o
A secondby
major
certificate of residence issued by the host, certified by the mayor's residence.
Finally,
of Amsterdam, the Eu
subtenants must make available the commitment sublease and the justification
this basis,that
it adopted
this sublease is permitted under the lease. According to French regulations,
all the
of condit
determines
these documents should provide information regarding the size and salubriousness
of
residing lawfully on t
the accommodation.
conditions for exerci
status – have been em
In Spain, applications for family reunification are accompanied by proof related to
accommodation. This proof must contains at the very least a notary certificate,
the title the
to novelt
However,
occupy the house, the number of rooms, the purpose assigned to each of the
rooms,
the
'technical' adoption o
number of persons who will live inside as well as conditions and equipment. Since
the laware clos
the Directive
adopted in 2009 and implementing the Royal Decree in 2011, the accommodation
not to be considered
condition is assessed by the Autonomous Community or the Local Council (Ayuntamiento)
integration of migran
of the place where the sponsor resides (once the sponsor has applied for this). The
competent
Justice's
interpretation
body issues a report in this regard within a maximum period of thirty days from
the time the e
has recognised
of application.
states' margins of ma
In Sweden, the sponsor must prove the accommodation situation with documents,
for
Family migration
rule
example by submitting a rental agreement or a certificate from the property owner,
landlord
On the one hand, thi
or the housing agency. If the accommodation is rented by subletting, it must belevel,
approved
bythe othe
and on
the landlord or housing co-operative, or by the rental tribunal.
vice versa.
31. P. de Bruycker & Y. Pascouau, "Le regroupement familial à la croisée des droits européen et
Roi Baudouin, 2011.
Family reunification
policies and modifica
and European
belge",
Fondation level a
(I). However, such a s
71
3
71
Poland and Germany
may be considered together. In these two member states, the rules are
GENERAL
INTRODUCTION
formulated in a very broad manner (Poland) or do not exist (Germany), and the solutions
applicable derive from practice. Hence, in Germany, there are no legal or administrative
rules and policies
as a consequence,
every type
proof
is admissible.
In practice,
however,
the
Migration
among EU member
statesofhave
undergone
major changes
in recent
decades,
presentation
of
a
rental
agreement
or
a
property
title
is
accepted.
In
Poland,
the
law
refers
to
which have had a significant impact on family migration rules and policies.
the accommodation's legal title in a very general way and does not provide any precise
information
about
title.
Hence,
acceptable
proof is
a tenancy
agreement
an agreement
Firstly,
the 1970s
oilthis
crisis
triggered
tremendous
change.
It drove
member
states tooradopt
restrictive
to
lease
or
to
loan
for
use.
However,
a
contract
of
loan
for
use
shall
not
be
regarded
as a ways
legal
labour migration policies. As a consequence, family reunification became one of the main
title
for
a
dwelling
in
which
an
alien
resides
or
intends
to
reside
unless
the
loaner
is
an
alien's
to legally enter EU member states. Figures in some EU countries confirm that the majority of
descendant,
ascendant,
siblings,ofspouse
or spouse's parents.
migrants
entered
for the purpose
family reunification.
C. Obligation
fulfilofrequirement
before has
or after
of family
Meanwhile,
thetoissue
family reunification
beenentry
gaining
in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
Although
the life
sponsor
must provide
proof
the accommodation
theConvention
requested
right
to family
represented
a first step.
Onthat
the basis
of Article 8 of thesatisfies
European
conditions,
a
problem
still
remains.
Should
the
sponsor
bring
the
proof
that
he/she
already
on Human rights, the Court has framed and limited member states' room for manoeuvre.
More
has
the
accommodation
required?
Or
should
the
sponsor
bring
proof
that
he/she
will
have
precisely, the right to family life has been used as a strong and successful argument against
the
appropriate
accommodation
at
the
moment
of
the
family's
arrival
on
the
territory
of
the
expulsion procedures in member states. It has also been successful in cases regarding the
member
state?
Belgium
applies
the
first
solution,
whereas
France,
Spain
and
Sweden
apply
admission of third country nationals.
the second.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
In Amsterdam,
Belgium, the
Court
notcompetences
consider disproportionate
the obligation
for
of
theConstitutional
European Union
(EU)does
gained
in the field of migration
issues. On
the
sponsor
to
fulfil
the
accommodation
condition
when
the
application
is
lodged.
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
According the
to the
Court, this
requirement
allows
the competent
authority
tocountry
be surenationals
that the
determines
conditions
for exercising
the right
to family
reunification
for third
sponsor
will
have
appropriate
accommodation
once
he/she
is
joined
by
family
members.
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
This solution
mustembedded
be subjectintoEU
further
as it may
a heavy
for the
status
– have been
rules, scrutiny
which impact
uponconstitute
national rules
and burden
practices.
sponsor according to the length of the procedure and the number of family members entitled
to join him/her.
This has
rightly been
questioned
the European
in its
report
However,
the novelty
introduced
by the
Treaty ofbyAmsterdam
goesCommission
much further
than
the
32
However,
no
real
answer
has
been
relating
to
the
implementation
of
Directive
2003/86/EC.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots
of
given
to this question
so linked
far, and
could
be appropriate
to ask
to take should
action
the
Directive
are closely
toitthe
integration
of migrants.
In the
thisCommission
view, the Directive
in this
regard
i.e. to give
cleartointerpretation
of the rule
or to table
procedures
not
to be
considered
as aa tool
manage migration
but rather
as a infringement
means of enhancing
the
against
certain
states.
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
In Poland,
the the
promise
of a of
sponsor
thattoappropriate
accommodation
admissiblemember
cannot
has
recognised
existence
the right
family reunification
and firmlyis delineated
be
recognised
as
sufficient.
He/she
must
have
a
legal
title.
The
possibility
to
refer
to
future
states' margins of manoeuvre.
accommodation is possible, but such a possibility seems to be limited in time. Indeed, the
sponsormigration
may for example
he/she
will have
appropriate
accommodation
for
Family
rules andprovide
policiesproof
havethat
been
constantly
modified
for almost
40 years now.
the
next
month.
In
this
regard,
the
Polish
solutions
are
not
very
different
to
Belgian
ones.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
32. "the practice [in some States] of asking the sponsor to meet these requirements prior to the entry of his/her family
policies
andismodifications
have
very
important
in the
last couple
of years
at both national
members
questionable since
the been
duration
of the
reunification
procedure
can impose
a considerable
financial
andburden
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is timely
on the sponsor", Report from the Commission to the European Parliament and the Council on the application
of Directive such
2003/86/EC
on the
Rightto
to be
Family
Reunification,
COM(2008)
610 final, 08.10.2008,
6.
(I). However,
a study
needs
delineated
(II) and
its methodology
defined p.
(III).
372
72
The solutions adopted in France, Spain and Sweden are totally different. In France,
the rules INTRO
GENERAL
take into account future tenants or owners. Future tenants must accompany the application
for family reunification with a promise and attestation that the accommodation will be
available. As for future owners, they should provide the sales agreement or any
document
Migration
policies am
certifying that the applicant will own the accommodation before the family's
arrival.
which
have A
had a sig
similar rule is applicable in Sweden, where the sponsor may prove the accommodation
situation with a forthcoming rental agreement or forthcoming title of property. Firstly, the 1970s oil c
labour migration poli
Issues related to the obligation to fulfil the requirement before or after entry intotothe
territory
legally
enter EU m
are important as they might constitute an obstacle to family reunification. They
deserve
migrants
entered for t
further scrutiny.
Meanwhile, the issue
Exchange of good practice may lead member states to define common rules
Theregarding
growing impact o
the possibility for the sponsor to prove that he/she will have in future right
appropriate
to family life rep
accommodation.
on Human rights, the
precisely, the right to
expulsion procedure
D. Assessing the proof
admission of third co
In almost all of the member states, proof of the accommodation condition is examined
by step o
A second major
local or regional authorities. This is the case in Belgium (municipal authorities),ofFrance
(the
Amsterdam, the Eu
mayor, and if appropriate, representatives of a central body33), Poland (border
thisguards
basis, iton
adopted
behalf of or in cooperation with the governor of the province), Portugal (border
guards
and
determines
the condit
immigration service), Spain (competent body in the Autonomous Community
or local
residing
lawfully on t
council) and Sweden (local offices of the Migration Board).
conditions for exerci
status – have been em
The examination process is accompanied in all of the states concerned, with the exception
of Spain, by the possibility to proceed to an investigation i.e. on-the-spot check.
However, the novelt
'technical' adoption o
In Belgium, municipal authorities are entitled to ascertain whether conditions
by theare clos
theset
Directive
tenancy law and regarding basic requirements of safety, health and habitabilitynot
are to
satisfied.
be considered
A bylaw defines a series of conditions relating to the size and state of the accommodation.
integration of migran
It specifies that "the area and volume of housing should be large enough to allow
cooking,
Justice's
interpretation
staying and sleeping there".
has recognised the e
states' margins of ma
In France, the mayor of the town where the applicant and the family member wish to reside
examines the documents provided as proof that the sponsor fulfils the accommodation
Family migration rule
condition. The mayor may also ask the competent authorities at local levelOn
to the
conduct
one hand, thi
on-the-spot investigations to ensure that the accommodation conditions are duly
respected.
level, and on the othe
On the spot investigations may also be requested by the French Office for vice
Immigration
versa.
and Integration.
33. French Office for Immigration and Integration.
Family reunification
policies and modifica
and European level a
(I). However, such a s
73
3
73
In Poland, border
guard officers are
GENERAL
INTRODUCTION
allowed to check that all documents and elements
provided by applicants regarding housing conditions are correct. If there are doubts, officers
may check the place of stay indicated by the applicant. They have the right to enter the place
of residence,
to require
theEU
production
of elements
and objects
belonging
toin
therecent
foreigner,
and
Migration
policies
among
member states
have undergone
major
changes
decades,
to
request
clarifications.
They
also
have
the
right
to
speak
to
neighbours
and
employers.
A
which have had a significant impact on family migration rules and policies.
report is then sent to the Governor of the Province, who takes the final decision on the matter.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
In Sweden,
the policies.
Migration
is responsible
assessing the
proofone
of of
accommodation
labour
migration
AsBoard
a consequence,
familyfor
reunification
became
the main ways
conditions.
Examination
of
the
accommodation
conditions
takes
place
at
the
localmajority
offices of
of
to legally enter EU member states. Figures in some EU countries confirm that the
the
Migration
Board.
It
has
a
duty
to
investigate
fully
all
cases.
If
necessary,
it
investigates
by
migrants entered for the purpose of family reunification.
examining the facts and performing interviews with the persons concerned.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
In the
casesimpact
reported
above,
local authorities
or representatives
the powerregarding
to conduct
The
growing
of the
European
Court of Human
Rights and itshave
jurisprudence
the
on-the-spot
checks
to assess whether
the conditions
are of
fulfilled
to the Convention
documents
right
to family
life represented
a first step.
On the basis
Articleor8correspond
of the European
previously
provided.
In all has
of the
cases,
national
show
thatroom
the authorities
have More
very
on
Human rights,
the Court
framed
and
limitedreports
member
states'
for manoeuvre.
limited orthe
no right
margin
manoeuvre.
explained
by the and
fact that
rules encompassing
the
precisely,
to of
family
life has This
beenis used
as a strong
successful
argument against
accommodation
condition
are verystates.
precise.
In this
they do notinleave
leeway for
expulsion
procedures
in member
It has
alsoregard,
been successful
casesany
regarding
the
national authorities,
whosenationals.
main duty is to check whether 'on-the-spot' conditions fulfil accurate
admission
of third country
rules regarding inter alia the size of the habitation and its salubriousness.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Onebasis,
member
state, aSpain,
doesonnot
the
samereunification.
path as the This
others.
In this(2003/86/EC)
country, the
this
it adopted
Directive
thefollow
right to
family
Directive
Autonomous
Community
issues
a
report
on
accommodation
conditions
and
notifies
the
determines the conditions for exercising the right to family reunification for third country
nationals
person
concerned
within
a
maximum
period
of
30
days
from
the
time
of
application.
Such
residing lawfully on the territory of an EU member state. Since then, several rules related to thea
report can for
alsoexercising
be issuedthe
by the
corporation
where –the
his/her
residence
when
conditions
rightlocal
to family
reunification
asalien
well has
as rights
deriving
from
this
this
has
been
established
by
the
competent
Autonomous
Community.
In
the
event
that
status – have been embedded in EU rules, which impact upon national rules and practices. the
report is not issued in time, the requisite of adequate housing by any means of proof admitted
in law – normally
a notary
certificate
might
be of
justified.
In Spain,
contrary
to the
the
However,
the novelty
introduced
by –the
Treaty
Amsterdam
goestherefore,
much further
than
other
member
states
surveyed,
the
law
does
not
specifically
allow
the
authorities
to
conduct
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
situ checks.
investigations.
However,
and intopractice,
the authorities
conduct
the
Directive are
closely linked
the integration
of migrants.
In thisinview,
the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
It should finally
be underlined
that in practice
nonesociety.
of the states
surveyed
ask for additional
integration
of migrants
legally residing
in their host
Secondly,
the European
Court of
conditions
to
be
fulfilled.
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
E. Effects
of the
condition
states'
margins
of accommodation
manoeuvre.
Any investigation
of the
the accommodation
conditionformust
be linked
to now.
their
Family
migration rules
andeffect(s)
policiesofhave
been constantly modified
almost
40 years
purpose.
In
other
words,
did
the
introduction
of
this
condition
achieve
the
goal
for
which
On the one hand, this is due to the modification of migration policies at national and Europeanit
was established?
level,
and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
For instance, this condition was abandoned by the Netherlands in 2001 because it was
deemedreunification
ineffective. isAta that
time,issue
the that
sponsor
only tohad
the opportunity
rent family
Family
sensitive
is subject
changing
landscapes.toEver-evolving
accommodation
if
the
family
already
resided
in
the
Netherlands.
He/she
therefore
not
policies and modifications have been very important in the last couple of years at bothcould
national
provide
evidence
of
this
accommodation
at
the
moment
of
tabling
an
application
for
family
and European level and explain why a new study on conditions for family reunification is timely
reunification.
In 2005,
theneeds
Dutchtominister
in charge
of migration
issues wanted
reintroduce
(I).
However, such
a study
be delineated
(II) and
its methodology
defined to
(III).
374
74
the accommodation requirement, but civil servants managed to convinceGENERAL
her of the INTRO
requirement's ineffectiveness. Notwithstanding this negative experience, the government
wishes to reintroduce this condition into Dutch law. The aim is to request the sponsor to provide
independent accommodation in order to prevent the new family from being influenced
or
Migration policies
am
forced to act by the parents of the sponsor.
which have had a sig
According to the reports issued for the purposes of this study, the aims of accommodation
Firstly, the 1970s oil c
conditions are threefold. On the one hand, accommodation conditions are established
order
labourinmigration
poli
to ensure normal and adequate living conditions for family members and as a to
consequence
legally enter EU m
limit owners' abuse of migrants (Germany, France, Poland, Portugal and Belgium).
Onentered
the
migrants
for t
other hand, such conditions are adopted in order to foster integration (Sweden and Belgium).
Finally, and more astonishingly, the Spanish expert indicates that accommodation
conditionsthe issue
Meanwhile,
were adopted in Spain in order to limit the number of migrants and reduce the
number
The growingofimpact o
family reunion permits. According to the Polish national expert, accommodation conditions
are life rep
right to family
also recognised as a "test" for an applicant's credibility.
on Human rights, the
precisely, the right to
However, it does not derive very clearly from the national reports thatexpulsion
in practice
procedure
accommodation conditions did achieve the aims of law or regulation. Indeed,admission
it seems too
of third co
early in Belgium to assess the effect of the measure. In Germany the measure is seen
positively but without giving the reasons for such an assessment.
A second major step o
of Amsterdam, the Eu
The French report bridges the legal conditions with a factual approach. Hence,
while
this basis,
it adopted
outlining progress achieved from a legal point of view, the report underlines that
such
a
rule
determines
the condit
may not in itself overcome problems relating to the lack of available accommodation.
this on t
residingInlawfully
regard, issues relating to unhealthy houses and slumlords remain.
conditions for exerci
status – have been em
The Swedish report takes another point of analysis. It puts forward the ethnocentric view
reflected by such a condition, as it is based on the nuclear family living However,
in the same
the novelt
accommodation. The report underlines that for persons who are used to living together
'technical'with
adoption o
other relatives in addition to the nuclear family, this requirement may be problematic.
It addsare clos
the Directive
that the requirement may also cause family reunification to become an issue of class
notbelonging.
to be considered
integration of migran
Finally, the Spanish report indicates that the effectiveness of the rules, whichJustice's
aim to interpretation
limit
family reunification, will be more effective since local authorities are now askedhas
to complete
recognised the e
reports regarding accommodation conditions.
states' margins of ma
With regard to these issues, it is not entirely certain whether accommodationFamily
conditions
migration rule
adopted in EU member states produce the desired effect. Such uncertainty is worrying
at ahand, thi
On the one
time when a tightening the conditions for family reunification has been advocated
by the
level, and
on the othe
heads of state and government in the European Pact.
vice versa.
In this context and without clear results, accommodation conditions may be Family
regarded
or
reunification
used as an additional condition for applicants. It might therefore be very important
tomodifica
policies and
further evaluate the effects of these rules and try to define whether they have been
adopted level a
and European
in order to help and protect migrants, or in order to make family reunification more
difficult. such a s
(I). However,
75
3
75
The expectedINTRODUCTION
publication of the European Commission's Green Paper (by the end of 2011) is
GENERAL
a timely moment to launch a wide-ranging discussion about the aims of accommodation
conditions, their scope and content and the evaluation of their effects. As for the aim, such a
conditionpolicies
should among
be of great
help instates
enhancing
migrant integration
and in
fighting
Migration
EU member
have undergone
major changes
recent landlord
decades,
abuse.have
Large-scale
exchange
of knowledge
and practices
among
member states should
which
had a significant
impact
on family migration
rules and
policies.
constitute good grounds for defining the content of such a condition on the basis of common
rules the
and1970s
approaches.
Finally, atremendous
systematic change.
and common
evaluation
of to
theadopt
effect
of the
Firstly,
oil crisis triggered
It drove member
states
restrictive
accommodation
condition
help to further
a common
approach
on main
this issue.
labour
migration policies.
Asshould
a consequence,
familydevelop
reunification
became
one of the
ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
migrants
entered
for the purpose of family reunification.
II. Sickness
insurance
Meanwhile,
the issue
of family
reunification
has been
gaining
in importance
at European
level.
Proof of sickness
insurance
is another
condition
member
states
may ask applicants
for family
The
growing impact
the European
Court1,ofb)Human
Rights
and its jurisprudence
regarding
the
reunification
to fulfil.ofArticle
7, paragraph
indicates
that applicant
may be required
to prove
right
to family
lifehas
represented
first step. On
the basisofofallArticle
of the European
that the
sponsor
"sicknessa insurance
in respect
risks 8
normally
covered Convention
for its own
on
Humaninrights,
the Court
has
framed and
memberand
states'
for manoeuvre.
More
nationals
the member
state
concerned
for limited
himself/herself
the room
members
of his/her family".
precisely, the right to family life has been used as a strong and successful argument against
expulsion
procedures
in member
has Netherlands,
also been successful
cases
regarding
This condition
is not required
by states.
France,It the
Portugalinand
Sweden.
On the
admission
of third country
nationals.
contrary, Belgium,
Germany,
Poland, Slovenia and Spain require it.
A
major
step occurred
levelfor
after
1999.reunification
With the entrymust
into force
of the Treaty
Insecond
the latter
member
states, at
theEuropean
application
family
be accompanied
of
(EU) gained
competences
the field
On
byAmsterdam,
proof that the
theEuropean
sponsor Union
has insurance
that
covers theinrisks
for of
themigration
family. issues.
Normally,
this
basis,
on the
to family
reunification.
Directiveby
(2003/86/EC)
where
theit adopted
sponsor aisDirective
exercising
an right
employed
activity,
he/she This
is covered
public or
determines
the conditions
exercising
theisright
to family
reunification for
country nationals
private insurance.
Wherefor
the
applicant
acting
as a self-employed
orthird
independent
worker,
residing
on to
thea territory
of an EUHe/she
member
state.
then, several
related tofrom
the
he/she islawfully
affiliated
private regime.
must
in Since
both cases
providerules
a certificate
conditions
for exercising
family
– as well
as those
rights deriving
this
the insurance
company the
thatright
any to
risks
andreunification
the costs deriving
from
risks arefrom
covered
status
have been embedded in EU rules, which impact upon national rules and practices.
by the– insurance.
However,
the noveltylegal
introduced
byisthe
Treaty of Amsterdam
goesamuch
further
than the
In the Netherlands,
residence
a requirement
for concluding
sickness
insurance.
As
'technical'
adoptionthe
of common
It proposes
a 'new' reading
of the
issue. Firstly,
the roots of
a consequence,
coalitionrules.
government
announced,
in an
agreement
concluded
in
the
Directive2010,
are closely
linked to the
integration
migrants.
this view, as
thea Directive
should
September
its intention
introduce
proofofof
sicknessIninsurance
requirement
for
not
to be
considered as a tool to manage migration but rather as a means of enhancing the
family
reunification.
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's
interpretation
of thesuch
Directive
played a strong
in giving
it a crucial
dimension:
it
The obligation
to provide
proofhas
is generally
based role
on the
idea that
the sponsor
and the
has
recognised
existence
of the
to family
reunification
and firmly
delineated
family
joining the
him/her
should
not right
become
a burden
for the health
system
of the member
states'
margins
of manoeuvre.
state. In
this regard,
the insurance, be it public and/or private, should cover all expenses
deriving from sickness and accidents.
Family migration rules and policies have been constantly modified for almost 40 years now.
On
the one hand, this is due to the modification of migration policies at national and European
III. Resources
level, and on the other, to the impact of family reunification on migration flows and most probably
vice
.
The versa
condition
related to resources is one of the most important. On the one hand, all
the member states surveyed implement this condition. While an extension of the condition
Family
reunification
is a sensitive
that is subject
changing
landscapes.inEver-evolving
is under
way in Belgium,
the issue
introduction
of an to
income
requirement
Sweden in
policies
and
modifications
have
been
very
important
in
the
last
couple
of yearsofatthis
bothcondition
national
April 2010 is a major and significant step. Indeed, the implementation
and
European
level
and
explain
why
a
new
study
on
conditions
for
family
reunification
is
is a revolution in a member state that previously refused to use it as "it would deviatetimely
from
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
376
76
the Swedish immigration policy".34 The arrival of Sweden in this group of member
states INTRO
GENERAL
is also a sign of a growing tendency to implement this condition in the framework of
family reunification.
Migration policies am
On the other hand, this income requirement which is embedded in Article 7, which
paragraph
have1,
had a sig
c) of Directive 2003/86/EC, has been subject to the interpretation of the European
Court of Justice. In the Chakroun case law already mentioned, the Court delineated
in oil c
Firstly, the 1970s
a very strong manner the margins of manoeuvre of the member states
regarding
labour migration poli
the implementation of this condition. National rules must therefore be analysed
in light
to legally
enter EU m
of the jurisprudence. In certain circumstances, national rules no longer comply
migrants with
entered for t
EU rules.
Meanwhile, the issue
The growing impact o
right to family life rep
Directive 2003/86/EC sets a series of elements that have to be taken into account
while
on Human
rights, the
examining the income requirement. Article 7 stipulates that the sponsor needs toprecisely,
have "stable
the right to
and regular resources which are sufficient to maintain himself/herself and theexpulsion
members procedure
of
his/her family, without recourse to the social assistance system of the Member
State
admission of third co
concerned. Member States shall evaluate these resources by reference to their nature and
regularity and may take into account the level of minimum national wages andApensions
as step o
second major
well as the number of family members".
of Amsterdam, the Eu
A. Evaluation of resource conditions
this basis, it adopted
In most of the member states, sufficient resources are evaluated on the basis ofdetermines
the national
the condit
minimal income below which persons are entitled to apply for general social assistance.
This on t
residing lawfully
largely shared principle is implemented differently from one country to another.conditions
Some define
for exerci
rules that establish the amount of resources required. Others do not and preferstatus
to base
thebeen em
– have
evaluation on a general rule.
However, the novelt
'technical' adoption o
the Directive are clos
Only Germany has not established detailed rules regarding the amount of resources
to considered
be
not to be
provided. It relies on rules that take into account the ability of the sponsor tointegration
support the
of migran
needs of the family without needing to resort to social assistance.
Justice's interpretation
has recognised the e
In Germany, calculation of sufficient resources does not take as a basis a defined
minimum
states'
margins of ma
amount of money. The criterion implemented is whether the foreigner is entitled to social
benefits under the Social 'welfare' Code (sec. 12) or the Social 'general unemployment
Family migration rule
benefits' Code (sec. II). In this view, the federal Administrative Court stated in
OnNovember
the one hand, thi
2010 that the spouse applying for a residence permit must demonstrate thatlevel,
the sponsor
and on the othe
is able to cover the living costs of the spouse and children without havingvice
recourse
versa. to
social welfare.
1. No specific amount of resources required
34. H. Labayle & Y. Pascouau, op. cit., p. 99.
Family reunification
policies and modifica
and European level a
(I). However, such a s
77
3
77
2. Defined amount
of resources to be provided
GENERAL
INTRODUCTION
Eight member states have adopted rules fixing the amount of resources required from the
sponsor inpolicies
order among
to allow
familystates
reunification.
These major
states changes
are Belgium,
France,
the
Migration
EUfor
member
have undergone
in recent
decades,
Netherlands,
Poland,
Portugal,
Slovenia,
Spain
and
Sweden.
which have had a significant impact on family migration rules and policies.
Belgium
recently
extended
scope ofchange.
the resources
Previously
to
Firstly,
thehas
1970s
oil crisis
triggeredthe
tremendous
It drove condition.
member states
to adoptlimited
restrictive
family
reunification
of
adult
disabled
children,
the
law
now
asks
the
foreigner
living
in
labour migration policies. As a consequence, family reunification became one of the main ways
Belgium
be joined
by his/her
hercountries
partner and
child/children
to prove
to
legally wishing
enter EUtomember
states.
Figures spouse
in someorEU
confirm
that the majority
of
that
he/she
has
stable,
regular
and
sufficient
means
to
meet
his
own
needs
as
well
as those
migrants entered for the purpose of family reunification.
of his/her family. The stable and sufficient means of support must be equivalent at least to
120% of the
integration
and cannot
begaining
based in
onimportance
social assistance
payments.
Meanwhile,
theincome
issue ofoffamily
reunification
has been
at European
level.
However,
if
the
sponsor
is
entitled
to
unemployment
benefits,
the
spouse
or
the
concerned
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
partner
has to life
prove
that he isalooking
work.
The existence
stable, regular
and
right
to family
represented
first step.actively
On thefor
basis
of Article
8 of the of
European
Convention
sufficient
means
of
support
must
be
proven
in
every
case.
However,
if
the
condition
relative
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
to the means
of support
nothasfulfilled,
the as
minister
his/her
delegate
will have
to
precisely,
the right
to familyislife
been used
a strongorand
successful
argument
against
determine,
according
to
the
appropriate
needs
of
the
foreigner
and
the
members
of
his
expulsion procedures in member states. It has also been successful in cases regarding the
family, theofnecessary
means
of support to allow them to meet their needs without becoming
admission
third country
nationals.
a burden for the public authorities. Belgian rules distinguish three type of income for
integration:
for step
cohabitants,
persons
withthea entry
family.
According
toTreaty
these
A
second major
occurred isolated
at European
level and
after persons
1999. With
into
force of the
categories
and
the
120%
threshold,
the
sponsor
must
prove
he/she
earns:
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
√ cohabitant:
€513 for for
nationals
–› €615
fortofamily
determines
the conditions
exercising
the right
familyreunification;
reunification for third country nationals
√
isolated
persons:
€770
for
nationals
–›
€924
family
residing lawfully on the territory of an EU member for
state.
Sincereunification;
then, several rules related to the
√
persons
with
family:
€1,026
for
nationals
–›
€1,231
conditions for exercising the right to family reunification –for
asfamily
well asreunification.
rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
In France, examination of income takes into account the resources received by the sponsor
and the spouse.
But the
calculation
not include
family benefits
and social
allowances
However,
the novelty
introduced
bydoes
the Treaty
of Amsterdam
goes much
further
than the
that
they
may
be
entitled
to
receive
by
law,
nor
does
it
count
extra
money
provided
third
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the by
roots
of
persons
such
as
family
members.
The
resources
should
reflect
the
size
of
the
family.
An
the Directive are closely linked to the integration of migrants. In this view, the Directive should
implementing
decreeasindicates
the amount
of resources
be at least
equal to the
the
not
to be considered
a tool tothat
manage
migration
but rather must
as a means
of enhancing
monthly
minimum
wage,
and
then
increased
according
to
the
size
of
the
family.
Hence,
the
integration of migrants legally residing in their host society. Secondly, the European Court of
monthlyinterpretation
minimum wage
as ahas
basis
to evaluate
a two/three
person
Justice's
of theserves
Directive
played
a strong the
roleresources
in giving itfor
a crucial
dimension:
it
family.
This
basis
of
calculation
is
increased
by
one
tenth
for
a
family
of
four
or
five
people.
has recognised the existence of the right to family reunification and firmly delineated member
This basis
is increased
by one fifth for a family of six or more. Currently, the monthly
states'
margins
of manoeuvre.
minimum wage is equivalent to €1,070 net.
Family migration rules and policies have been constantly modified for almost 40 years now.
In the
rulestorequire
the sponsor
permanently
and
receive
On
theNetherlands,
one hand, thisthe
is due
the modification
of to
migration
policies
at independently
national and European
an
income
at
the
level
of
social
security
for
a
married
couple.
This
income
is
equivalent
to
level, and on the other, to the impact of family reunification on migration flows and most probably
the
monthly
minimum
wage
of
€1,550,02.
Income
is
regarded
as
permanent
if
the
income
vice versa.
was available for at least one year before the date of application or decision and will be
available
for at leastisone
year after
thatthat
date.
permit will
also be granted
if the
Family
reunification
a sensitive
issue
is However,
subject to achanging
landscapes.
Ever-evolving
sponsor
had
an
employment
contract
for
the
last
three
years
before
the
application
date.
In
policies and modifications have been very important in the last couple of years at both national
the
latter
case,
the
sponsor
must
prove
that
for
those
three
years,
their
income
reached
the
and European level and explain why a new study on conditions for family reunification is timely
minimum
required
and that this
income
is also guaranteed
the coming
(I).
However,
such a level
study each
needsmonth,
to be delineated
(II) and
its methodology
defined in
(III).
378
78
six months (this last requirement will be abolished in 2012). As for families of one
or several INTRO
GENERAL
children, Dutch law does not make any distinction and requires the same amount of money.
For a single parent, who wants to reunite with his/her child(ren), the required income level
is €1,395,01.
Migration policies am
which have had a sig
In Poland, the sponsor must have sufficient financial resources for themselves and their
dependent family members. Sufficient resources are based on the monthly income
required
Firstly,
the 1970s oil c
and calculated per person to take into account all dependent family members. Housing
costs
labour migration
poli
are deducted from these resources. They should not be lower than the incometolevel
which
legally enter EU m
forms a basis for granting social assistance. Since October 2009, the net monthly
income
migrants
entered for t
below which social assistance is granted is approximately €120 (477 PLN) per single person,
and approximately €90 (351 PLN) for each family member. It should beMeanwhile,
noted thatthe issue
maintenance costs may be covered by a family member of the person upon whom
he/she isimpact o
The growing
dependent, if this person resides in Poland and is able to do so.
right to family life rep
on Human rights, the
In Portugal, the level of resources required is precisely defined by the law. precisely,
The levelthe
of right to
resources required from the applicant for each family member is as follows: twelve
minimum
expulsion procedure
monthly guaranteed retributions for the first adult; 50% of twelve minimum
monthly
admission
of third co
guaranteed retributions for the second adult; 30% of twelve minimum monthly guarantied
retributions for minors (under 18 years old). The minimum monthly guaranteed A
retribution
is step o
second major
€422,75. The applicant must provide evidence that he/she has enough resources
for
a
year
of Amsterdam, the Eu
when applying for family reunification.
this basis, it adopted
determines the condit
In Slovenia, the rules require applicants for family reunification to have sufficient
means
of on t
residing
lawfully
subsistence for the duration of their residence in the country. Sufficient means are
considered
conditions for exerci
met where the applicant provides proof of earnings or possession of an amount
of –money
status
have been em
equal to the basic minimum income in Slovenia for each family member. This sum is
currently €226 and represents the threshold under which social assistance However,
is granted the
to novelt
citizens and permanent residents who have no other means of subsistence. Proof'technical'
of sufficient
adoption o
resources is assessed on the basis of money earned from professional activity. Inthe
Slovenia
anare clos
Directive
applicant may present a contract attesting that a legal or natural person is committed
to
not to be considered
providing half of the required amount. This contract must be concluded in theintegration
Republic of
of migran
Slovenia in the form of a directly executable notary contract. Slovenian expert
has some
Justice's
interpretation
reservations concerning the level of income requested. The monthly minimum
income the e
has recognised
required is €226, whereas the value of an essential basket of goods in Sloveniastates'
is currently
margins of ma
set at €500.
Family migration rule
In Spain, the sponsor must prove that he/she has sufficient financial resourcesOn
to the
attend
oneto
hand, thi
the needs of the family, including healthcare assistance in the event that the person
is
notthe othe
level, and on
covered by social security. A Royal Decree defines precisely the level of income
that .the
vice versa
sponsor must provide in order to fulfil the resources condition. For the sponsor and another
family member, the level requested represents 150% of the monthly minimum salary
Family(called
reunification
IPREM in Spain). For 2011, the monthly minimum salary is equivalent to €532.51.
Hence
policies
andtomodifica
reunify the first family member, the sponsor must bring proof of sufficient resources
up
to level a
and European
€798.77. This sum is completed with 50% of the minimum salary for each additional
family
(I). However, such a s
79
3
79
member; thatINTRODUCTION
is to say almost €266. Financial solvency is calculated by adding the earnings
GENERAL
of the sponsor to those of his/her spouse or partner, as well as those of another family
member in the direct line in the first degree who is resident in Spain and lives with them.
Migration policies among EU member states have undergone major changes in recent decades,
In Sweden,
income
requirements
introduced
in 2010.
Since
then, the sponsor must be
which
have had
a significant
impactwere
on family
migration
rules and
policies.
able to support themselves and family members. The sponsor's salary must be sufficient to
fulfil the
requirement.
Sweden, possession
of adequate
can be
proven
Firstly,
theresources
1970s oil crisis
triggeredIn
tremendous
change. It drove
memberresources
states to adopt
restrictive
on
the
basis
of
a
monthly
salary
or
a
personal
fortune
that
allows
the
sponsor
to
support
their
labour migration policies. As a consequence, family reunification became one of the main ways
family.
Remuneration
from
unemployment
insurance
or
any
other
similar
work-related
to legally enter EU member states. Figures in some EU countries confirm that the majority of
income is
considered
to aofsalary.
a rule, there is no set amount because this differs
migrants
entered
for theequal
purpose
familyAs
reunification.
depending on whether the couple live alone or have children, and if they do, the children's'
age. However,
national
experts
cited the has
example
of situations
in which
reservation
Meanwhile,
the issue
of family
reunification
been gaining
in importance
at the
European
level.
amount
is
or
is
not
reached.
The
figures
are
the
following:
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
right to family life represented a first step. On the basis of Article 8 of the European Convention
√ Human
A couple
withthe
a salary
15,000
before taxes
housing costs
of
on
rights,
Court of
hasSEK
framed
and(€1,637)
limited member
states'(33%)
room and
for manoeuvre.
More
SEK
4,500
(€491)
reaches
the
reservation
amount.
precisely, the right to family life has been used as a strong and successful argument against
√ A couple
with oneinchild
and astates.
salaryIt of
20,000
taxes
(33%) and
expulsion
procedures
member
hasSEK
also
been (€2,183)
successfulbefore
in cases
regarding
the
housing
costs
of
SEK
4,500
(€491)
reaches
the
reservation
amount.
admission of third country nationals.
√ A couple with two children and a salary of SEK 20,000 (€2,183) before taxes (33%) and
housing
costs
of occurred
SEK 4,500
(€491) reaches
the 1999.
reservation
amount.
A second
major
step
at European
level after
With the
entry into force of the Treaty
√
A
couple
with
three
children
and
a
salary
of
SEK
20,000
(€2,183)
taxes (33%)
of Amsterdam, the European Union (EU) gained competences in the fieldbefore
of migration
issues. and
On
housing
costs
of
SEK
4,500
(€491)
may
reach
the
reservation
amount,
depending
on the
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
age of the
children (ifforatexercising
least onethe
child
age of sixfor
the
reservation
amount
determines
the conditions
rightistounder
familythe
reunification
third
country nationals
is
reached).
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
ate
resourcesinconditions
re quired
for upon
family
r eunif rules
icat ion
ent s +
status –Approxim
have been
embedded
EU rules, which
impact
national
and(par
practices.
chi ldr e n)
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
Sponsor/
Couple
+ 1 child
+ 2 childr en
+ 3 children
+ 4 childre n
'technical' adoption
ofome
common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
min. inc
SW
/
1637
2180 of migrants.
2180
2180
the Directive
are closely
linked
to the integration
In this view,
the Directive /should
+ 491 (housing cost)
+ 491 (housing cost)
+ 491 (housing cost)
+ 491 (housing cost)
not toNL
be considered
as a tool 1550
to manage migration
but rather
1550 for
1550
1550 as a means
1550 of enhancing
1550 the
couple legally residing in their host society. Secondly, the European Court of
integration of migrants
1395 for
Justice's interpretation
of the Directive has played a strong role in giving it a crucial dimension: it
single parent
FR
1070 reunification
1177 and firmly
1177
has recognised
the1070
existence of1070
the right to family
delineated 1232
member
/
615
1231
1231
1231
1231
states' BE
margins of manoeuvre.
SP
PT
FamilySLO
migration
PL
532
422
226
rules
120
798
422
452
policies
210
1064
548
678constantly
been
300
1330
674
904
modified
390
1596
800
1130
almost
480
1862
926
1356now.
years
570
and
have
for
40
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
This versa
table. deserves further comment. Firstly, as it was shown by the 2007 study, there are
vice
huge gaps between some member states. As the resource conditions required for family
reunification
are based
the minimum
wage,
they correspond
the differences
that exist
Family
reunification
is aon
sensitive
issue that
is subject
to changingto landscapes.
Ever-evolving
between
member
states
in
this
regard.
As
a
consequence,
the
income
requirement
for a
policies and modifications have been very important in the last couple of years at both national
couple
is
eight
times
higher
in
Sweden
and
seven
times
higher
in
the
Netherlands
than
that
and European level and explain why a new study on conditions for family reunification is timely
requested
in
Poland.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
380
80
Secondly, with regard to conditions required of the sponsor and their spouse or partner,
three INTRO
GENERAL
groups of country may be defined. The 'northern' ones, comprising the Netherlands, France
and Sweden, impose income requirements for couples at the top of the scale. The 'southern'
ones, represented by Spain and Portugal, require a level of resources of between
€400 and
Migration
policies am
€550. Finally, Poland is the only representative of the "Eastern side" requesting
an
whichamount
have had a sig
of resources at the bottom of the scale and therefore rather low. Slovenia is difficult to
categorise as the requirements regarding the sponsor are quite low but increasesFirstly,
rapidly
thewith
1970s oil c
the size of the family.
labour migration poli
to legally enter EU m
Thirdly, several of the countries surveyed have established rules on the basis migrants
of whichentered
the for t
level of resources required increases along with the size of the family. Although
understandable in principle, this rule may nevertheless prove very difficultMeanwhile,
to obey forthe issue
families with several children. It may therefore constitute an obstacle for family The
reunification
growing impact o
if the sponsor engages in a low-skilled activity. This is the case in Spain, whereright
the to
sponsor
family life rep
of a four-child family must prove that he/she earns €1,862 a month. According
on Human to
rights, the
this calculation, the sponsor's resources would have to be 3.5 times superior
to the
the right to
precisely,
minimum wage.
expulsion procedure
It is crucial for member states using 'resource scales' to follow two rules.
admission of third co
A second major step o
First, the level of income requested should remain proportionate. This is particularly
the case the Eu
of Amsterdam,
regarding families with several children. In such cases, the level of income requested
should
this basis,
it adopted
at best stay the same irrespective of the size of the family, as is the case in determines
Sweden, the
the condit
Netherlands or Belgium. Another solution is the one applicable in France, whereresiding
the level
of
lawfully
on t
income required decreases in proportion to the increase in family size.
conditions for exerci
status – have been em
Second, and following the jurisprudence of the Court of Justice, member states should
make sure that the amount of income acts as a reference and not as a threshold below
which
However,
the novelt
the application for family reunification is automatically rejected, as we will'technical'
see in the
adoption o
next section.
the Directive are clos
not to be considered
integration of migran
B. Lack of sufficient resources and family reunification
Justice's interpretation
has recognised the e
The question of whether an application for family reunification should be rejected
if the of ma
states' margins
sponsor does not meet the financial requirements was at the heart of the Chakroun case law
adopted in March 2010. The Court of Justice strongly delineated member states'
margins
of
Family
migration
rule
manoeuvre in this regard (1). As a consequence, the compliance of current national
rules
On the one hand, thi
with these jurisprudential requirements needs to be assessed (2).
level, and on the othe
1. Boundaries set by the European Court of Justice (Chakroun case law)
vice versa.
Family reunification
In the Chakroun case, Mr. Chakroun's application for family reunification policies
was rejected
and modifica
because his resources were lower than the amount requested by Dutch legislation.
In level a
and European
practice, the means of support were considered sufficient if the net income were
€1,441.44
(I). However, such a s
81
3
81
per month, and
Mr Chakroun's unemployment benefit amounted to just €1,322.73 net per
GENERAL
INTRODUCTION
month. As a consequence, because the applicant's resources did not meet the legal amount
defined by law, the competent national authority rejected the application.
Migration policies among EU member states have undergone major changes in recent decades,
Asked have
to interpret
the provision
of the
directive
relatedrules
to income
requirements, the Court of
which
had a significant
impact
on family
migration
and policies.
Justice did not give the same reading. On the contrary it gave an interpretation that greatly
limits member
margins
of tremendous
manoeuvre change.
in this regard.
Firstly,
the 1970sstates'
oil crisis
triggered
It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
Thelegally
core reasoning
of the judgement
is enshrined
48 of confirm
the courtthat
case
reads of
as
to
enter EU member
states. Figures
in someinEUpoint
countries
theand
majority
follows:
"Since
the
extent
of
needs
can
vary
greatly
depending
on
the
individuals,
that
migrants entered for the purpose of family reunification.
authorisation [to impose an income requirement] must, moreover, be interpreted as meaning
that the member
statesofmay
indicate
a certain
as gaining
a reference
amount, but
not as meaning
Meanwhile,
the issue
family
reunification
hassum
been
in importance
at European
level.
that
they
may
impose
a
minimum
income
level
below
which
all
family
reunifications
willthe
be
The growing impact of the European Court of Human Rights and its jurisprudence regarding
refused,
irrespective
of
an
actual
examination
of
the
situation
of
each
applicant.
That
right to family life represented a first step. On the basis of Article 8 of the European Convention
interpretation
is supported
Article
17 and
of the
directive,
which
requires
examination
on
Human rights,
the Courtby
has
framed
limited
member
states'
roomindividual
for manoeuvre.
More
of
applications
for
family
reunification".
precisely, the right to family life has been used as a strong and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
There areof
three
consequences
admission
thirdmain
country
nationals. of this interpretation:
√ The
amount
resources
defined by
lawafter
or regulation
is the
onlyentry
a reference.
the
A second
major
step of
occurred
at European
level
1999. With
into forceTherefore
of the Treaty
immediate
consequence
of
not
meeting
the
income
condition
may
not
be
the
automatic
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
rejection
of the
application.
this basis,
it adopted
a Directive
on the right to family reunification. This Directive (2003/86/EC)
√
Administrations
thus obliged
to proceed
individual for
examinations
every
determines the conditionsare
for exercising
the right
to familyto
reunification
third country of
nationals
application
for
family
reunification.
These
individual
examinations
should
allow
residing lawfully on the territory of an EU member state. Since then, several rules related to the
the
competent
body to
whether
the resources
by the
applicants
conditions
for exercising
thedetermine
right to family
reunification
– as provided
well as rights
deriving
from are
this
support their
needs,
because
status – sufficient
have beentoembedded
in EU
rules,
which impact upon national rules and practices.
√ "needs can vary greatly depending on the individuals". Indeed, a 60 year-old couple, like
thatthe
in the
Chakroun
case law,
have of
theAmsterdam
same needsgoes
as a 30
year-old
couple.
However,
novelty
introduced
by do
thenot
Treaty
much
further
than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
In Directive
summary,arenational
authorities
not allowed
to reject
application
for family
the
closely linked
to theare
integration
of migrants.
In thisanview,
the Directive
should
reunification
for
the
sole
reason
that
the
resources
provided
by
the
applicant
do
not
reach the
not to be considered as a tool to manage migration but rather as a means of enhancing
the
amount defined
by law.legally
They need
to proceed
an individual
examination
and to determine
integration
of migrants
residing
in their to
host
society. Secondly,
the European
Court of
whetherinterpretation
the resourcesofatthe
theDirective
disposal has
of the
applicant
arerole
sufficient
to maintain
himself/herself
Justice's
played
a strong
in giving
it a crucial
dimension: it
andrecognised
the members
of his/heroffamily
without
resorting
to the social
assistance
systemmember
of the
has
the existence
the right
to family
reunification
and firmly
delineated
member
state of
concerned.
states'
margins
manoeuvre.
Family migration rules and policies have been constantly modified for almost 40 years now.
2. Assessing
the compliance
national
rules of migration policies at national and European
On
the one hand,
this is due toofthe
modification
level, and on the other, to the impact of family reunification on migration flows and most probably
Withversa
regard
to this interpretation, it is interesting to assess whether the member
vice
.
states surveyed are complying with the obligations defined by the Court of Justice. As the
case law
referred to fixed
amountsissue
of money
compliance
of national
Family
reunification
is a sensitive
that isrequested,
subject toassessing
changingthe
landscapes.
Ever-evolving
rules
concerns
the
group
of
eight
member
states
that
have
established
a
fixed
amount
policies and modifications have been very important in the last couple of years at both national
of
resources
in
order
to
assess
income
requirements.
Two
sub-groups
of
state
must
and European level and explain why a new study on conditions for family reunification is timely
be
distinguished.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
382
82
In the most problematic, comprising Belgium, France, the Netherlands and
Slovenia, INTRO
GENERAL
possession of resources that are below the threshold leads to rejection of the application. This
rule might in some circumstances be tempered due to the best interests of the child (France)
or the right to family life (France and Germany). In Belgium, if the condition isMigration
not fulfilled,
policies am
the minister determines, according to the appropriate needs of the foreigner
whichand
havethe
had a sig
members of their family, the necessary means of support to allow them meet their needs
without becoming a burden for the public authorities. However, these exceptions
Firstly,are
the not
1970s oil c
sufficient to meet the requirements of the Court of Justice. Indeed, the administrative
labour migration poli
authorities must evaluate whether the resources are sufficient or not. As a consequence,
to legallythese
enter EU m
countries must align their rules and practices to the interpretation of the Court migrants
of Justice.
entered for t
The second subgroup is composed of states in which there is no automatic rejection
of thethe issue
Meanwhile,
application if the level of resources required is not reached. This is the case
in
Poland,
The growing impact o
Portugal, Spain and Sweden.
right to family life rep
on Human rights, the
In Portugal, although the level of resources constitutes a threshold below whichprecisely,
applications
the right to
for family reunification are in principle rejected, the administrative authorities
take into
expulsion
procedure
consideration other factors, especially when the family member of the applicant
is a minor.
admission
of third co
More precisely, the law establishes that any decision to reject an application for family
reunification has to take into account the nature and strength of the applicant's
A family
second ties,
major step o
the period of residence in Portugal and the existence of family, cultural and social
ties with the Eu
of Amsterdam,
the country of origin. In other words, the Portuguese authorities do implement
obligations
this
basis, it adopted
deriving from Article 17 of Directive 2003/86/EC.35
determines the condit
residing lawfully on t
In Spain, legislation defines situations where the income requirement may be conditions
reduced. The
for exerci
income requirement may be reduced in the following situations:
status – have been em
√ when the family member who can be reunified is under age;
However, the novelt
√ when there are accredited exceptional circumstances which make the
reduction
'technical'
adoption o
advisable based on the principle of the superior interests of minor children;the Directive are clos
√ regarding the reunification of other family members, when humanitarian reasons
not to related
be considered
to individual cases are noted and there is a favourable report from theintegration
Department
of migran
of Immigration.
Justice's interpretation
has recognised the e
As regards Sweden, the current law is not clear on this issue. However, preparatory
work of ma
states' margins
states that the income must be of a particular duration and that the assessment should be
forward-looking. Therefore the Swedish system would appear to be flexible andFamily
in anymigration
case
rule
easily adaptable to the jurisprudence of the Court of Justice.
On the one hand, thi
level, and on the othe
vice versa.
Family reunification
35. Article 17 of Directive 2003/86/EC: "Member States shall take due account of the nature and solidity of the person's
policies and modifica
family relationships and the duration of his residence in the Member State and of the existence of family, cultural and
and aEuropean
social ties with his/her country of origin where they reject an application, withdraw or refuse to renew
residence level a
(I). However, such a s
permit or decide to order the removal of the sponsor or members of his family."
83
3
83
As regards theINTRODUCTION
only country not to establish a fixed amount of resources (Germany), the main
GENERAL
question is elsewhere. Germany considers the resources condition to have been fulfilled in
that the applicant does not have recourse to social assistance. Hence, the issue is to
determinepolicies
when recourse
tomember
social assistance
to the major
rejection
of aninapplication.
The
Migration
among EU
states haveleads
undergone
changes
recent decades,
answer
is
once
again
given
by
the
Court
of
Justice
in
the
Chakroun
case
law.
which have had a significant impact on family migration rules and policies.
C. Recourse
to social
assistance
and family reunification
Firstly,
the 1970s
oil crisis
triggered tremendous
change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
Here
again,
CourtFigures
of Justice
has EU
delineated
states'
of
to
legally
enterthe
EUEuropean
member states.
in some
countries member
confirm that
the margins
majority of
manoeuvre
(1).
National
rules
comply
with
its
interpretation
(2).
migrants entered for the purpose of family reunification.
1. Boundaries
by of
the
European
Court of
(Chakroun
case law) at European level.
Meanwhile,
theset
issue
family
reunification
hasJustice
been gaining
in importance
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
In itstodefinition
the resources
be provided,
Directive
2003/86/EC
considers
that they
right
family lifeofrepresented
a firsttostep.
On the basis
of Article
8 of the European
Convention
must
be
stable,
regular
and
sufficient
"without
recourse
to
the
social
assistance
system
the
on Human rights, the Court has framed and limited member states' room for manoeuvre. of
More
Member
State".
The
main
difficulty
here
is
in
interpreting
the
notion
of
having
recourse
to
precisely, the right to family life has been used as a strong and successful argument against
social
assistance.
More
precisely,
when
and
which
type
of
social
assistance
leads
to
the
expulsion procedures in member states. It has also been successful in cases regarding the
exclusion of
of third
its beneficiary
from the family reunification procedure?
admission
country nationals.
The
answer
is given
by the Court
of Justice.
First
of 1999.
all, theWith
Court
the
scene.
A
second
major
step occurred
at European
level
after
thesets
entry
into
forceItofunderlines
the Treaty
that
the
wording
"social
assistance
system"
refers
to
"a
concept
which
hasissues.
its own
of Amsterdam, the European Union (EU) gained competences in the field of migration
On
independent
meaning
in
European
Union
law
and
cannot
be
defined
by
reference
to
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
concepts
of
national
law".
In
other
words,
the
concept
is
EU-based
and
should
be
interpreted
determines the conditions for exercising the right to family reunification for third country nationals
within that
ambitonand
theoflines
drawn
by the
Court.
and rules
consequently,
the
residing
lawfully
the along
territory
an EU
member
state.
SinceSecondly,
then, several
related to the
Court
defines
the
scope
of
the
concept.
In
the
meaning
of
the
Directive
it
refers
to
"assistance
conditions for exercising the right to family reunification – as well as rights deriving from this
granted
by the
public
authorities,
at national,
regional
or local
which can be
status
– have
been
embedded
in EUwhether
rules, which
impact upon
national
ruleslevel,
and practices.
claimed by an individual, (…), who does not have stable and regular resources which are
sufficient to
and the
members
family andgoes
who,much
by reason
of that
However,
themaintain
novelty himself
introduced
by the
Treaty ofofhis
Amsterdam
further
than fact,
the
is
likely
to
become
a
burden
on
the
social
assistance
system
of
the
host
Member
State
during
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots
of
his Directive
period of are
residence".
the
closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
According of
to migrants
this interpretation,
the Court
makes
distinction
between
types of
social
integration
legally residing
in their
hostasociety.
Secondly,
the two
European
Court
of
assistance.
Firstly,
social
assistance
granted
to
support
applicants
who
do
not
have
sufficient
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
resources:
in such
cases, he/she
deemed
not to
satisfy theand
resources
condition member
and the
has
recognised
the existence
of theisright
to family
reunification
firmly delineated
application
for
family
reunification
may
be
refused
on
those
grounds.
Secondly,
social
states' margins of manoeuvre.
assistance granted to applicants with sufficient resources but who might nevertheless be
entitledmigration
to specialrules
assistance
in order
to meet
individually
determined,
essential
Family
and policies
have
beenexceptional,
constantly modified
for almost
40 years
now.
living
costs.
In
such
cases,
the
applicant
benefits
from
social
assistance
but
is
not
likely to
On the one hand, this is due to the modification of migration policies at national and European
become
burden
on to
the
system.
Asreunification
a consequence,
the soleflows
fact and
that most
the applicant
level,
andaon
the other,
thesocial
impact
of family
on migration
probably
receives
or
may
receive
special
or
exceptional
assistance
cannot
constitute
grounds
to refuse
vice versa.
family reunification.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
In this regard,
the Court has
in a important
very important
theofmargins
manoeuvre
policies
and modifications
haveframed
been very
in the manner
last couple
years atofboth
national
of
member
states.
It
is
not
because
the
applicant
is
receiving
public
assistance
that
the
and European level and explain why a new study on conditions for family reunification is
timely
application
for
family
reunification
should
be
rejected.
For
instance,
a
yearly
allowance
for
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
384
84
school granted to the sponsor due to their level of resources may not lead to aGENERAL
rejection. In INTRO
practice, and since then, national authorities have to examine the individual situation of the
sponsor and assess precisely which type of social assistance – that he/she receives or is
entitled to receive – may impede the application and which do not.
Migration policies am
2. Compliance of national rules
which have had a sig
Firstly, the 1970s oil c
In the different member states surveyed this rule is apparently well implemented.
Butmigration
there
labour
poli
seems to be a problem with regard to Belgium. Under Belgian rules, stable and
sufficient
to legally enter EU m
resources must be equivalent at least to 120% of the income of integration and
cannotentered
be for t
migrants
based on allocations of social assistance. For unemployment benefits, the spouse or the
concerned partner must prove that they are actively looking for work. InMeanwhile,
this regard,the issue
applications for family reunification are rejected if the sponsor receives social assistance.
The growingInimpact o
this case, it is important, on the one hand, to determine which type of social right
assistance
is life rep
to family
concerned and, on the other hand, to invite the Belgian authorities to make
this
rule
on Human rights, the
accessible to applicants for family reunification.
precisely, the right to
expulsion procedure
In the other states, the rules applicable seem to comply with the interpretationadmission
of the Court
of third co
of Justice. Indeed, if the sponsor has recourse to general social assistance then the
application for family reunification is rejected due to lack of sufficient resources.
As step o
A second major
explained in the Swedish report, "resources should be work-related [and] that isofwhy
general
Amsterdam, the Eu
social assistance can be a ground for rejecting an application".
this basis, it adopted
determines the condit
Two other reports offer further explanation of this issue. In Poland, social assistance
benefits
residing
lawfully on t
are not "a case" in procedures for family reunification. Indeed, the benefit of social
welfare
is exerci
conditions for
only accessible to long-term residents, refugees and beneficiaries of subsidiary
protection,
status – have been em
persons with a tolerated stay as well as victims of human trafficking. All these benefits are very
low and cannot be considered sufficient because they target particular needs, such
as food,
However,
the novelt
education and medical supplies. Moreover, some benefits are only periodic. Generally
they
'technical'
adoption o
are designed to help families in a crisis situation and are not as such consideredthe
as Directive
income. are clos
not to be considered
In France, the rules regarding social assistance are very clear. Since 2006, theintegration
law defines
of migran
social assistance that can be taken into account in calculating the resources necessary
for
Justice's interpretation
family reunification. This is the case for family allowances, education allowanceshas
forrecognised
children the e
with disabilities, family support allowances, yearly allowances for school or the states'
single margins
parent of ma
allowance. On the contrary, certain social assistance cannot be taken into consideration in
minimum
an application for family reunification. Such assistance includes inter alia the
Family
migration rule
income, the solidarity allowance for the elderly, the specific solidarity allowance
the
On theor
one
hand, thi
allowance equivalent to retirement. To sum up, this shows that in France, applicants
forthe othe
level, and on
family reunification may be entitled to a series of public funds that do not jeopardise
vice versatheir
.
application for family reunification.
Family reunification
From this perspective, discussions following the publication of the European Commission's
policies and modifica
Green Paper may address the impact of social assistance on the family and
reunification
European level a
procedure. An exchange of views and practices between competent bodies may(I).
help
to paintsuch a s
However,
85
3
85
a clearer picture
of the rules and practices applicable in the member states. This may help
GENERAL
INTRODUCTION
and encourage the European Commission to define common orientations and guidelines.
D. National
authorities'
of manoeuvre
examining
applications
Migration
policies
among margins
EU member
states have in
undergone
major
changes in recent decades,
which have had a significant impact on family migration rules and policies.
Notwithstanding the jurisprudence of the Court of Justice obliging authorities to proceed
to individual
evaluations
of tremendous
applications,
national
were toasked
whether
Firstly,
the 1970s oil
crisis triggered
change.
It droveexperts
member states
adopt restrictive
national
authorities
benefit
from
margins
of
manoeuvre
in
appraising
the
condition
of
labour migration policies. As a consequence, family reunification became one of the main ways
sufficient
resources.
to legally enter EU member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
In seven countries – Belgium, France, Germany, the Netherlands, Poland, Portugal and
Slovenia – the
the issue
answer
was negative.
Indeed,
mostgaining
of the in
experts
underline
that specific
Meanwhile,
of family
reunification
has been
importance
at European
level.
national
rules
regarding
the
level
of
resources
required
do
not
allow
authorities
to
have wide
The growing impact of the European Court of Human Rights and its jurisprudence regarding
the
margins
of manoeuvre.
right
to family
life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
On the contrary,
states
authorities
enjoy some
leeway in
their
precisely,
the righttwo
to member
family life
has answered
been usedthat
as the
a strong
and successful
argument
against
appraisal
of
the
condition
of
resources.
This
is
the
case
in
Sweden,
where
the
rules
are
expulsion procedures in member states. It has also been successful in cases regarding not
the
very well defined.
In Spain,
the rules are somewhat different.
admission
of third country
nationals.
Insecond
Sweden
forstep
instance,
the 1999.
law or
regulations
andforce
even
from
the
A
major
occurredinformation
at European from
level after
With
the entry into
of the
Treaty
preparatory
work
is
limited
regarding
the
evaluation
of
resources.
Moreover,
there
is
a
lack
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
of direction
on the apart
of the on
Migration
The
only criteria
mentioned
are reaching
this
basis, it adopted
Directive
the right Board.
to family
reunification.
This
Directive (2003/86/EC)
the
reservation
amount,
that
the
resources
should
be
of
a
certain
duration
and
there
determines the conditions for exercising the right to family reunification for third countrythat
nationals
should
be
reasonable
grounds
to
believe
that
the
sponsor
would
be
able
to
support
herself
residing lawfully on the territory of an EU member state. Since then, several rules related to the
or himself for
in exercising
the future.the
As right
a consequence,
the Migration
some margins
of
conditions
to family reunification
– as Board
well asenjoys
rights deriving
from this
interpretation
in
deciding
on
cases
where
it
is
uncertain
whether
the
sponsor
satisfies
the
status – have been embedded in EU rules, which impact upon national rules and practices.
resources requirement.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
In Spain, the
pictureofiscommon
different.rules.
Indeed,
reformsaadopted
in 2009
have
considerably
'technical'
adoption
It proposes
'new' reading
of the
issue.
Firstly, thereduced
roots of
the
discretionary
power
that
national
authorities
enjoyed
before.
If
this
paves
the way for
less
the Directive are closely linked to the integration of migrants. In this view, the Directive
should
leeway,
national
experts
underline
that
it
is
too
early
to
draw
definitive
conclusions
on
that
not to be considered as a tool to manage migration but rather as a means of enhancing the
point. The experts
underline
precisely
thathost
further
examination
target the
use of
of
integration
of migrants
legallymore
residing
in their
society.
Secondly,should
the European
Court
exceptions
allowed
by
the
law.
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
E. Persons
or groups
of persons exempted from the income requirement
states'
margins
of manoeuvre.
In several
of therules
member
states some
or groups
of persons
are exempted
from
Family
migration
and policies
have persons
been constantly
modified
for almost
40 years now.
fulfilling
the
condition
related
to
sufficient
resources.
However,
the
types
of
exemption
vary
On the one hand, this is due to the modification of migration policies at national and European
widely
from
one
state
to
another
and
highlight
the
absence
of
any
common
approach
to
this
level, and on the other, to the impact of family reunification on migration flows and most probably
point.
Some
selected
examples
of
these
exemptions
picked
up
from
national
rules
vice versa.
demonstrate how diverse these solutions are.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
In Belgium,
the income requirement
is important
not imposed
where
family ofreunification
policies
and modifications
have been very
in the
last couple
years at bothconcerns
national
only
the
children
of
the
sponsor
or
his/her
spouse
and
where
family
reunification
is requested
and European level and explain why a new study on conditions for family reunification
is timely
for However,
refugees and
protection.
(I).
suchbeneficiaries
a study needsoftosubsidiary
be delineated
(II) and its methodology defined (III).
386
86
In France, the sufficient resources condition is not required of holders GENERAL
of an adult INTRO
disability allowance.
In the Netherlands, sponsors who have reached the age of 65, or who are permanently
Migrationand
policies am
completely unable to work, are exempt from the income requirement.
which have had a sig
In Poland, this condition is not applicable to persons applying for a permit for
temporary
Firstly,
the 1970s oil c
residence for a fixed period in order to reunite with family members if they have labour
been granted
migration poli
refugee status or subsidiary protection. But, an application for a permit to reside
must enter
be EU m
to legally
submitted within six months of the date of obtaining refugee status or subsidiary migrants
protection.
entered for t
In Sweden, exceptions can be made if the sponsor is a child and the sponsor is aMeanwhile,
parent of thethe issue
child, or if the other parent of the child is applying for a residence permit along with
child.impact o
The the
growing
right to family life rep
Portugal is one of the most interesting examples. If the applicant involuntarily
ends up
on Human
rights, the
unemployed and family reunification has already occurred in Portugal, thenprecisely,
the levelthe
of right to
resources required is diminished.
expulsion procedure
admission of third co
Here again, further discussion should focus on the diversity of exemptions applicable in EU
member states in order to get a full picture and to outline common rules and practices.
A second This
major step o
could also help in defining new steps for further harmonisation of national rules.
of Amsterdam, the Eu
this basis, it adopted
determines the condit
residing lawfully on t
All of the states surveyed ask the sponsor to prove sufficient resources.
conditions for exerci
With the exception of Germany, all of them have defined a fixed amountstatus
of sufficient
– have been em
resources.
There is a movement towards toughening the requirement either by establishing
However,new
the novelt
rules in this regard (Belgium and Sweden) or in specifying or elevating'technical'
the level adoption
of
o
resources needed (Spain and France).
the Directive are clos
According to the Court of Justice, this amount of resources is a reference not
and to
national
be considered
administrations are obliged to proceed to individual examinations of each application
integration in
of migran
order to determine whether the amount of resources provided by the Justice's
applicants
is
interpretation
sufficient to support their needs.
has recognised the e
In practice, defining the amount of resources limits administrative authorities'
states'margins
margins of ma
of appreciation.
There are sometimes huge differences between the amount of resources requested
by
Family migration
rule
member states. Three groups may be outlined: 'northern', 'southern' and 'eastern'
ones.
On the
one hand, thi
The situation must be more precisely framed regarding the level of resources
requested
level,
and on the othe
in comparison to the size of the family. Several rules and schemes are applicable
in the
vice versa
.
member states. Better harmonisation in this regard is needed.
Portugal is the only country to have taken into account the effects of the
crisisreunification
and
Family
adapted rules on family reunification accordingly.
policies and modifica
Whenever the implementation of the rule related to social assistance is largely
shared, level a
and European
member states should keep in mind the ECJ's interpretation in this regard. (I). However, such a s
To summarise the range of income requirements:
√
√
√
√
√
√
√
√
√
87
3
87
IV. Integration
measures
GENERAL
INTRODUCTION
The introduction of integration measures in the field of family reunification is widely debated
among member
2003/86/EC
allows
for such
rules
and now
constitutes
the
Migration
policiesstates.
amongDirective
EU member
states have
undergone
major
changes
in recent
decades,
background
in
this
regard
(A).
An
overview
of
the
states
surveyed
(B)
shows
that
three
are
which have had a significant impact on family migration rules and policies.
implementing such rules (C). This trend deserves some additional comment (D).
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
A. Background
labour
migration policies. As a consequence, family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
Family reunification
itself a way
to promote
the integration of migrants into the host society.
migrants
entered for is
theinpurpose
of family
reunification.
The preamble of Directive 2003/86/EC is clear on this point. It says "(...) [family reunification] helps
to create socio-cultural
the has
integration
of thirdincountry
nationals
in the Member
Meanwhile,
the issue ofstability
family facilitating
reunification
been gaining
importance
at European
level.
State,
which
also
serves
to
promote
economic
and
social
cohesion,
a
fundamental
objective
stated
The growing impact of the European Court of Human Rights and its jurisprudence regarding
the
in thetoTreaty".
view, family
reunification
is anbasis
element
of the8integration
process.Convention
right
family In
lifethis
represented
a first
step. On the
of Article
of the European
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
Article 7, paragraph
2 of
the Directive
this point
and deals
the issue
of integration.
precisely,
the right to
family
life has echoes
been used
as a strong
andwith
successful
argument
againstIt
allows
member
states
to
require
third
country
nationals
to
comply
with
integration
measures
in
expulsion procedures in member states. It has also been successful in cases regarding the
order
to
exercise
the
right
to
family
reunification.
Two
readings
may
derive
from
this
requirement.
admission of third country nationals.
On
the one
hand,
it might
be considered
to askWith
migrants
to comply
withofintegration
A
second
major
step
occurred
at Europeanappropriate
level after 1999.
the entry
into force
the Treaty
measures
after
their
arrival
in
the
member
state.
Such
measures
may
be
constituted
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.with
On
mandatory
or civic
orientation
classes.
Both measures
be adopted
in order
this
basis, itlanguage
adopted learning
a Directive
on the
right to family
reunification.
Thismay
Directive
(2003/86/EC)
to foster thethe
integration
of for
new
arrivals. the right to family reunification for third country nationals
determines
conditions
exercising
residing lawfully on the territory of an EU member state. Since then, several rules related to the
On the other
however,
the to
process
appear to–be
fulfilment
of
conditions
for hand,
exercising
the right
familymay
reunification
asthe
wellopposite
as rightswhere
deriving
from this
integration
measures
constitutes
a
prerequisite
for
exercising
the
right
to
family
reunification.
status – have been embedded in EU rules, which impact upon national rules and practices.
This is the case, for instance, where integration measures should be fulfilled in the country
of origin before
receiving
the appropriate
visa toofmove
within goes
the member
state for
family
However,
the novelty
introduced
by the Treaty
Amsterdam
much further
than
the
reunification
purposes.
Here,
integration
is
not
the
consequence
of
exercising
the
right
to
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
family
reunification
but
a
condition
that
comes
beforehand.
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
Both readings
lead to legally
very different
Integration
measures the
are European
a tool that
either
integration
of migrants
residingsituations.
in their host
society. Secondly,
Court
of
reinforces
the
capacity
of
migrants
to
integrate
into
society
or
adds
a
requirement
to
theit
Justice's interpretation of the Directive has played a strong role in giving it crucial dimension:
procedure
andthe
renders
family
morereunification
difficult.
has
recognised
existence
of reunification
the right to family
and firmly delineated member
states' margins of manoeuvre.
The possibility to introduce integration measures to the framework of the family reunification
36
Family
migration
rules
policies
have debate
been constantly
modified
for almost
40 this
yearsdebate
now.
But has
procedure
has been
theand
source
of much
in the academic
world.
On
the
one
hand,
this
is
due
to
the
modification
of
migration
policies
at
national
and
European
had an echo in member-state law and what options have been implemented?
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
36. See for
instance and inter
, K. Groenedijk,
Guild
S. Carrerato(Edited
by) "Illiberal
Liberal States:
Immigration,
Family
reunification
is aalia
sensitive
issue E.that
is &subject
changing
landscapes.
Ever-evolving
Citizenship and Integration in the EU", Ashgate, 2009; R. Van Oers, E. Ersbøll and D. Kostakopoulou "A Re-Definition
policies
and modifications have been very important in the last couple of years at both national
of Belonging? Language and Integration Tests in Europe", Martinus Nijhoff Publishers, 2010; Y. Pascouau "Mandatory
andIntegration
Europeanprovisions
level and
explain
a new
onS.conditions
for &family
reunification
is Europe",
timely
in EC
and EUwhy
Member
Statesstudy
Law" in
Bonjour, A. Rea
D. Jacobs
"The Others in
(I). However,
such a study
needs to
be delineated (II) and its methodology defined (III).
Editions de l'Université
de Bruxelles,
2011.
388
88
B. Overview of member states implementing integration measures or related mechanisms
GENERAL
INTRO
Of the nine member states studied, France, Germany and the Netherlands have adopted a
complete system of rules related to integration measures. Under these rules, family
members
Migration
policies am
have to comply with integration measures in the country of origin before entry
whichinto
havethe
had a sig
territory of the member state. In France, the integration process is pursued upon arrival. The
content of integration measures may differ between these countries but their
effects
are oil c
Firstly,
the 1970s
similar in the sense that they play on the legal status of family members i.e. on labour
his/hermigration
entry
poli
into the territory and/or his/her capacity to remain on the territory.
to legally enter EU m
migrants entered for t
In Belgium, the requirement is different for three reasons. First, it is only applicable after arrival
in the country. Second, due to constitutional constraints integration measures
are onlythe issue
Meanwhile,
applicable in the Flemish region of the country. Indeed, Belgium is divided
into
threeimpact o
The growing
Communities, and each has sole responsibility for developing integration policies.
As a life rep
right to family
consequence, only one – Flanders – has decided to introduce integration measures
for
third
on Human
rights, the
country nationals. Third, the effects are different. Indeed, non-fulfilment of integration
measures
precisely, the right to
may not impact upon the legal status of migrants, as migration issues are expulsion
an exclusive
procedure
competence of the federation.
admission of third co
A fifth member state, Spain, does not formally use integration measures. However, A
rules
adopted
second
major step o
in 2011 may pave the way to an increased role of integration issues in Spanish migration
law. the Eu
of Amsterdam,
Hence, for the renewal of the residence permit, and when other requirements are not
fulfilled,
this
basis, itthe
adopted
efforts of the foreigner to integrate may be evaluated. The evaluation is based on a determines
report, issued
the condit
at the level of the Autonomous Community, which takes into account "the active participation
in on t
residing lawfully
training in the knowledge and respect for the constitutional values of Spain and the
learning
of
conditions for exerci
the official languages of the place of residence". This effort to integrate can be seizedstatus
upon– by
thebeen em
have
alien as information to be valued in the event that compliance with any of the requirements for
the renewal of authorisation is questioned. While there are no integration measures
as suchthe
in novelt
However,
Spain, NGOs consider that this mechanism may become mandatory after the general
elections
'technical' adoption o
that should take place on 20 November 2011. The new government expected may
neware clos
theadopt
Directive
rules regarding integration measures.
not to be considered
integration of migran
Justice's interpretation
has recognised the e
France, Germany and the Netherlands constitute, along with Denmark and the United
Kingdom,
states'
margins of ma
a group of member states where integration measures have been widely developed. Established
in order to enhance the integration of new migrants, the rules adopted in these Family
states do
not
migration
rule
always follow this objective. On the contrary, they may be considered as further
conditions
On the one hand, thi
introduced in order to make family reunification more difficult. In this view, and as
we and
will on
seethe othe
level,
below, it is questionable whether such rules are compatible with Directive 2003/86/EC.
vice versa.
C. Integration measures adopted in France, Germany and the Netherlands
1. France
Family reunification
policies and modifica
Rules related to integration in France concern either the sponsor or the spouse
and are level a
and European
applied in three different stages.
(I). However, such a s
89
3
89
As a first rule,
family reunification
GENERAL
INTRODUCTION
may be refused if the sponsor does not comply with
essential principles that govern family life in France. These principles are inter alia the
following: monogamy, equality between men and women, respect of the physical integrity
of children,
respect
for freedom
of marriage,
mandatory
school
attendance,
It is up
to the
Migration
policies
among
EU member
states have
undergone
major
changes inetc.
recent
decades,
administration
to
demonstrate
that
the
sponsor
does
not
fulfil
these
requirements
and
to
which have had a significant impact on family migration rules and policies.
reject on this basis their application for family reunification.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
The second
stage
concerns
possibility family
awarded
by Directive
2003/86/EC
ask ways
third
labour
migration
policies.
As athe
consequence,
reunification
became
one of thetomain
country
nationals
to
comply
with
integration
measures
in
the
country
of
origin.
Under
a
to legally enter EU member states. Figures in some EU countries confirm that the majoritylaw
of
adopted entered
in 2007,
family ofmember
aged over 16 and under 65 has to undergo an
migrants
for each
the purpose
family reunification.
evaluation of his/her knowledge of the language and values of French society in the country
of origin. If the
thisissue
evaluation
is reunification
successful, ahas
visa
is issued.
the family
member level.
must
Meanwhile,
of family
been
gaining Ifinnot,
importance
at European
attend
training
sessions
in
the
country
of
origin.
These
sessions,
which
deal
with
knowledge
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
of theto French
language
and Republican
values,
doesofnot
last more
than
two months.
After
right
family life
represented
a first step. On
the basis
Article
8 of the
European
Convention
attendance,
a
new
evaluation
is
carried
out.
If
it
is
successful,
the
visa
is
granted.
If
the
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
knowledge
is
insufficient,
the
visa
is
still
issued
but
the
authorities
have
to
decide
upon
the
precisely, the right to family life has been used as a strong and successful argument against
duration
of
further
training
to
be
followed
in
France
within
the
framework
of
the
welcoming
expulsion procedures in member states. It has also been successful in cases regarding the
contract. In
knowledge
admission
of any
thirdcase,
country
nationals.of French is not a condition for issuing the visa.
Finally,
2006
law has
imposed alevel
general
Every
country
A
secondsince
major
step the
occurred
at European
after integration
1999. With obligation.
the entry into
forcethird
of the
Treaty
national
has
to
sign
up
to
a
welcoming
contract
on
the
basis
of
which
he/she
agrees
to
attend
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
On
to language
and civic
training as
as an
session This
about
daily life
in France.
this
basis, it adopted
a Directive
on well
the right
to information
family reunification.
Directive
(2003/86/EC)
The fulfilment
of this contract
lasts one
may in
certain circumstances
be extended
determines
the conditions
for exercising
theyear
rightand
to family
reunification
for third country
nationals
for
an
additional
year.
Family
members
are
subject
to
this
contract.
But
since
the
introduction
residing lawfully on the territory of an EU member state. Since then, several rules related
to the
of the integration
abroadthe
evaluation
in 2007,
family members
whoashave
successfully
conditions
for exercising
right to family
reunification
– as well
rightspassed
deriving
from this
a language
in the country
of origin
exempted
attending
language
training
status
– haveevaluation
been embedded
in EU rules,
whichare
impact
upon from
national
rules and
practices.
after arriving in France. They are nevertheless obliged to sign the contract and to attend to
the training
and
information
sessions.
Non-fulfilment
of the integration
contract
is taken
However,
the
novelty
introduced
by the
Treaty of Amsterdam
goes much
further
than into
the
account
when
renewing
the
residence
permit.
Unwillingness
to
fulfil
the
integration
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, thecontract
roots of
mayDirective
lead to refusal
to renew
firstintegration
residence of
permit.
ThisInscheme
wasthe
reinforced
June
the
are closely
linkedthe
to the
migrants.
this view,
Directive in
should
2011,
after
which
date
non-fulfilment
is
taken
into
account
each
time
the
residence
permit
not to be considered as a tool to manage migration but rather as a means of enhancing the
is renewed,ofi.e.
every year
until
the issuance
a residence
card, which
may be requested
integration
migrants
legally
residing
in their of
host
society. Secondly,
the European
Court of
after
five
years
of
legal
residence.
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
Since 2006,
has developed a set of rules regarding the integration of newcomers and
states'
marginsFrance
of manoeuvre.
family members in the framework of the family reunification procedure.
Family migration rules and policies have been constantly modified for almost 40 years now.
2. The
On
the Netherlands
one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
In the
Netherlands,
the integration of family members is evaluated at two different stages: in
vice
versa
.
the country of origin and for the acquisition of permanent residence.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
The Netherlands
was the have
first been
country
establishinintegration
measures
in atthe
country
of
policies
and modifications
verytoimportant
the last couple
of years
both
national
origin
in
the
framework
of
the
Family
Reunification
Directive.
Since
2006,
adult
family
and European level and explain why a new study on conditions for family reunification is timely
members,
between
18 and
65 years
need to(II)take
testdefined
as a requirement
for
(I).
However,
such a study
needs
to beold,
delineated
andan
itsintegration
methodology
(III).
390
90
family reunification before admission to the Netherlands. The test consists of a language
test INTRO
GENERAL
and questions regarding Dutch society. The examination is oral and, since 1 April 2011, it
has also included a reading test that requires the applicant to understand written texts. The
level of the test has also been raised from level A1 minus of the Common
European
Migration
policies am
at a have
Dutch
Framework of Reference for languages37 (CEFR) to level A1. The test is takenwhich
had a sig
embassy or consulate general abroad. The candidate answers the questions by phone, after
which a computer based in the United States judges whether the candidate has
passed
the oil c
Firstly,
the 1970s
exam. If the family member fails the test, meaning that he/she does not have labour
an adequate
migration poli
comprehension of Dutch or does not have enough knowledge of Dutch society,
a visa enter
for EU m
to legally
family reunification is not issued to the applicant. As a consequence, family members
must
migrants entered for t
then take the test again and pay again to do so. Persons who are permanently unable to pass
an integration exam on the grounds of physical or mental handicaps are exempted
from thisthe issue
Meanwhile,
requirement. This has to be proved by a medical certificate. Exemptions are also
awarded
The growingtoimpact o
persons holding the nationality of the following states: EU member states, Surinam,
rightAustralia,
to family life rep
Canada, the United States, Switzerland, New Zealand and Iceland.
on Human rights, the
precisely, the right to
After arrival in the Netherlands, family members below the age of 65 may be subjected
to a test
expulsion
procedure
if they wish to apply for permanent residence after five years. This test consists of anadmission
examination
of third co
in reading, writing, listening and speaking skills at level of A2 (CEFR) and an obligation to
provide a portfolio of 20 pieces of proof of written and oral language skills. Migrants
who can
A second
major step o
prove they are incapable of doing the test and those who can prove their knowledgeofofAmsterdam,
the Dutch the Eu
language with diplomas or certificates are exempted from taking the test. The Dutchthis
government
basis, it adopted
announced on 17 June 2011 that migrants will have to pass the integration test within
three years
determines
the condit
of arrival. If they fail to do so, their residence permit can be withdrawn. At the same
timelawfully
the
residing
on t
government has decided to leave the organisation of integration courses to the private
market.for
It exerci
conditions
has replaced its offer of integration courses by the possibility of a loan for migrants,
in order
status
– havetobeen em
enable them to finance the participation of a course.
However, the novelt
'technical' adoption o
the Directive are clos
Germany is the third member state to have introduced integration requirements
family
not for
to be
considered
reunification. These requirements are applicable in the country of origin and after
entry
onto
integration
of migran
the territory.
Justice's interpretation
has recognised the e
Since 2007, spouses have to demonstrate basic knowledge of the German language.
In this of ma
states' margins
regard, they have to produce a language diploma received from the Goethe Institute or any
agreed organisation in the country of origin. On a practical basis, the German authorities
do
Family migration
rule
3. Germany
37.
On the one hand, thi
level, and on the othe
vice versa
.
The Common Framework of Reference for Languages is a tool developed in the framework of the Council
of Europe.
It provides a practical tool for setting clear standards to be attained at successive stages of learning and for evaluating
outcomes in an internationally comparable manner. It is the result of extensive research and ongoing
on
Familywork
reunification
communicative objectives, as exemplified by the popular 'Threshold level' concept. It goes from level A (basic user)
policies and modifica
to level C (proficient user). The Common European Framework of Reference (CEFR) provides a basis for the mutual
and European
recognition of language qualifications, thus facilitating educational and occupational mobility. It is increasingly
used level a
(I). However, such a s
in the reform of national curricula and by international consortia for the comparison of language certificates.
91
3
91
not organise aINTRODUCTION
test as such: they require the applicant to provide the diploma. But the latter is
GENERAL
delivered after the applicant has taken a test at the Goethe Institute or another accredited
organisation. In the end, applicants for family reunification must take a test to prove they have
mastered the
German
language.
If theystates
are not
to take amajor
test because
is nodecades,
Goethe
Migration
policies
among
EU member
haveable
undergone
changes there
in recent
Institute
or
other
accredited
organisation
in
the
country
of
origin,
an
officer
in
the
German
which have had a significant impact on family migration rules and policies.
embassy is supposed to evaluate the language skills. If the test is not taken or the candidate fails
and consequently
diploma
is tremendous
not available,
the visa
for family
reunification
is not
issued.
Firstly,
the 1970s oilthe
crisis
triggered
change.
It drove
member
states to adopt
restrictive
The
applicant
will
have
to
take
the
test
again.
A
series
of
persons
are
exempted
from
this
labour migration policies. As a consequence, family reunification became one of the main ways
integration
requirement
due
to
their
capacity,
educational
background
or
nationality.
In
this
to legally enter EU member states. Figures in some EU countries confirm that the majority of
regard, nationals
of Australia,
Israel,
Japan,reunification.
Canada, the Korean Republic, New Zealand and the
migrants
entered for
the purpose
of family
USA are exempted.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
Upon
arrivalimpact
in Germany,
family members
entitled
– and
if its
their
language skills
are poor,
The
growing
of the European
Court ofare
Human
Rights
and
jurisprudence
regarding
the
obliged
–
to
engage
into
integration
courses
comprising
language
and
civic
orientation
right to family life represented a first step. On the basis of Article 8 of the European Convention
courses.
the end
of thehascourses,
participants
have tostates'
take room
language
and civic More
tests.
on
HumanAtrights,
the Court
framed and
limited member
for manoeuvre.
Non-attendance
of
these
courses
may
lead
to
a
refusal
to
renew
the
residence
permit.
Failure
precisely, the right to family life has been used as a strong and successful argument against
to pass theprocedures
tests may lead
to non-issuance
residence permit.
expulsion
in member
states. It of
hasa permanent
also been successful
in cases regarding the
admission of third country nationals.
D. Trends and comments regarding integration measures
A second major step occurred at European level after 1999. With the entry into force of the Treaty
The
Netherlands
the firstUnion
country
to gained
take thecompetences
opportunity in
to the
introduce
measures
of
Amsterdam,
thewas
European
(EU)
field of integration
migration issues.
On
from
abroad
to
the
family
reunification
procedure.
It
was
rapidly
followed
by
Germany
and
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
France. As the
a consequence,
the phenomenon
may
have
been expected
to country
extend nationals
to other
determines
conditions for exercising
the right to
family
reunification
for third
member
states.
This
movement
did
not
occur
in
the
member
states
under
scrutiny.
Neither
did
residing lawfully on the territory of an EU member state. Since then, several rules related to the
it
in
other
states,
with
the
exception
of
the
United
Kingdom
and
Denmark.
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
In addition to this very limited effect, it must be underlined that among the three states
surveyed, the
adopted
are very
The
and Germany
have than
adopted
However,
the rules
novelty
introduced
by different.
the Treaty
of Netherlands
Amsterdam goes
much further
the
a
very
demanding
procedure
as
the
issuing
of
the
visa,
and
therefore
the
possibility
to join
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots
of
the Directive
sponsor, is
on atotest.
is the opposite
in France,
wherethe
the
applicant
may
the
areconditional
closely linked
the This
integration
of migrants.
In this view,
Directive
should
havetotobeattend
classesasbut
where
the visa migration
is issued but
in any
case.
this regard,
the rightthe
to
not
considered
a tool
to manage
rather
as In
a means
of enhancing
family
reunification
is
not
subject
to
a
test
in
France.
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
Thisrecognised
point is highly
important
sheds
onreunification
the limits setand
by firmly
Directive
2003/86/EC.
It
has
the existence
of as
theitright
to light
family
delineated
member
refersmargins
to integration
measures and does not mention integration conditions as a requirement
states'
of manoeuvre.
for family reunification.38 From a legal point of view this has a huge effect. Indeed, requiring
integration
measures
to askinghave
family
members
to fulfil
obligations,
such40asyears
attending
Family
migration
rules leads
and policies
been
constantly
modified
for almost
now.
classes.
On
the this
contrary,
requesting
an integration
condition
to the
On
the one
hand,
is due to
the modification
of migration
policies leads
at national
andnecessary
European
achievement
ofother,
results,
such
as taking
successfully
a test.
other words,
allowed
by
level,
and on the
to the
impact
of family
reunification
onInmigration
flows one
and is
most
probably
the versa
directive
but the other is not, because it conditions the right to family reunification.
vice
.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
38. However,
As it is for instance
case in
another
dealing with
immigration.
(I).
such athe
study
needs
to Directive
be delineated
(II) and
its methodology defined (III).
392
92
In this regard, the compatibility of the Dutch and German schemes with EU requirements
GENERAL INTRO
is highly questionable.39 In its opinion given in Inram Case law, the European Commission
explicitly stated that passing an integration test as a condition for admission is incompatible
with Directive 2003/86/EC.
Migration policies am
which have had a sig
Other differences that exist between the three member states concern the scope of persons
Firstly,Such
the 1970s
exempted and more precisely exemptions awarded on the basis of nationality.
a oil c
labour migration poli
distinction made in national law may be incompatible with the prohibition of discrimination
to legally
on the basis of nationality. Unless the distinction between persons exempted
from enter
the EU m
migrants
entered
for t
integration requirement is objectively grounded, it might be difficult to understand
why
a
Japanese spouse is exempted from the test while a Russian one is not.
Meanwhile, the issue
Theare
growing
As shown above, rules related to integration schemes implemented from abroad
legallyimpact o
family
very dubious. From a practical point of view, such rules raise several questions.right
Theytoare
on life rep
rights, the
the one hand very difficult to organise. It is up to the member state that wisheson
to Human
introduce
the right to
such rules to provide the necessary structures either to attend classes and/or precisely,
to take tests.
expulsion
Such structures should be provided worldwide and in sufficient quantity in major
nations.procedure
In
admission of
this regard, a few years ago, the United Kingdom abandoned the idea of developing
anthird co
integration-from-abroad scheme because it considered itself unable to provide enough
A second
major step o
language classes worldwide. One can therefore easily imagine that such constraints
may also
of Amsterdam,
be applicable to other states with a less widely-spoken language. Indeed, providing
the the Eu
this basis,
it adopted
necessary structures is very expensive and may constitute a very significant obstacle
for some
determines the
states in undergoing this process. A solution in this view may be to leave the organisation
of condit
residing lawfully on t
integration courses to the private market as it has been decided by the Netherlands.
conditions for exerci
status –duties
have been em
Finally, these three member states have also adopted rules related to the integration
that migrants have to comply with after arrival on their territory. Two different schemes are
However,
the novelt
implemented. The Netherlands imposes a test for the issuance of a permanent
residence
'technical'
adoption o
permit, whereas France and Germany request family members to engage in an
integration
the Directive
process after arrival in the country. This process requires attendance of mandatory
classesare clos
not toprocess
be considered
and concludes with a test to assess the level of knowledge acquired. The integration
integration
of migran
may last more than a year and its effects are evaluated either at the renewal of the
residence
Justice's
interpretation
permit stage and/or when issuing a long-term residence permit. Such effects
should
hasfamily
recognised
nevertheless be compatible with human rights requirements, such as respect for
life the e
states'
margins
and the best interests of the child. Here again, national schemes may differ greatly from one of ma
another and demonstrate that harmonisation of national rules is still a long process.
Family migration rule
On the one hand, thi
However, the question of integration measures in the framework of family reunification
and on the othe
should remain high on the agenda, particularly within the framework of the level,
consultation
vice versa.
39.
93
Family reunification
policies and modifica
The Court of justice was asked to answer this question. But due to the fact that the main proceedings were lacking of
purposes, since the applicant request for provisional residence permit was met, the Court of justiceand
has European
considered level a
(I). However,
such a s
not necessary to give a ruling on the request. See ECJ, 10 June 2011, Bibi Mohammad Imran, C-155/11
PPU.
3
93
process following
the European
GENERAL
INTRODUCTION
Commission's Green Paper. Several points should be
discussed so as to:
√ Provide
clear EU
definition
of 'integration
measures'
compared
to
Migration
policiesa among
member and
statesscope
have undergone
major changes
in recent
decades,
'integration
conditions'.
which have
had a significant
impact on family migration rules and policies.
√ Evaluate the compatibility of existing and forthcoming national schemes with the
definition
thetriggered
scope of
'integration
measures'.
Firstly, the
1970s oiland
crisis
tremendous
change.
It drove member states to adopt restrictive
√ migration
Evaluate policies.
the compatibility
of national
schemes
with thebecame
interpretation
of the
ECJ
in
labour
As a consequence,
family
reunification
one of the
main
ways
the
Chakroun
case
law.
Where
national
rules
are
compatible
with
the
definition
of
to legally enter EU member states. Figures in some EU countries confirm that the majority of
measures',
they
may
nevertheless, in practice, run counter to the
migrants'integration
entered for the
purpose of
family
reunification.
objective of the directive, which is to "promote family reunification".
√ On the
due time
any infringement
procedure
Meanwhile,
thebasis
issue of
of these
familyevaluations,
reunificationintroduce
has beeningaining
in importance
at European
level.
against
states
that
do
not
respect
EU
requirements.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
of the consultation
process
to policy
on8integration
of third
country
right√to Link
familythis
lifepart
represented
a first step. On
the basis
of Article
of the European
Convention
nationals
developed
at
EU
level.
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
expulsion
procedures
in member
V. Public order
and public
health states. It has also been successful in cases regarding the
admission of third country nationals.
Public order threats and public health risks are grounds upon which member states are entitled to
40
A
second
major step occurred
at European
levelpermit
after 1999.
Withtothe
entrya into
force of
the Treaty
reject
an application,
to withdraw
a residence
or refuse
renew
residence
permit.
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this
basis, ithealth
adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
A. Public
determines the conditions for exercising the right to family reunification for third country nationals
residing
lawfully
on health
the territory
of an EU
state.
Since
rules related
to not
the
Regarding
public
concerns,
twomember
member
states
– then,
Spainseveral
and Sweden
– do
conditions
exercising
the rightasto grounds
family reunification
as well
as rightsorderiving
from this
apparentlyfor
accept
this element
for rejecting– an
application
withdrawing
or
status
– have
been embedded
EU rules,
impact
upon states,
national
rules
and practices.
refusing
to renew
a residenceinpermit.
In which
the other
member
this
criterion
is taken into
account but only when examining the application. In other words, illness may only be
However,
therejecting
novelty an
introduced
by the
Treaty
Amsterdam
goes muchfor
further
than the
grounds for
application;
it does
not of
come
into consideration
withdrawal
or
'technical'
adoption
commonpermit.
rules. It proposes a 'new' reading of the issue. Firstly, the roots of
non-renewal
of the of
residence
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not
be considered
a tool to manage
migrationtobutthe
rather
as aestablished
means of enhancing
the
Thistolargely
shared as
consideration
corresponds
limits
by Directive
integration
of Article
migrants
residing
in their
society.
Secondly,
the permit
European
of
2003/86/EC.
6, legally
paragraph
3 states
that host
"renewal
of the
residence
mayCourt
not be
Justice's
the Directive
has played
a strong
role in by
giving
a crucial dimension:
it
withheldinterpretation
and removaloffrom
the territory
may not
be ordered
the itcompetent
authority of
has
recognised
theconcerned
existence ofonthe
familyofreunification
and firmly
delineated
member
the Member
State
theright
soleto
ground
illness or disability
suffered
after the
issue
states'
of permit".
manoeuvre.
of the margins
residence
Family
migration
rules
and policies
have
been of
constantly
modified
forfor
almost
years now.
The rejection
of the
application
or the
issuance
the residence
permit
family40reunification
On
the
one
hand,
this
is
due
to
the
modification
of
migration
policies
at
national
and
may be based on a list of illnesses or diseases established by national rules or on theEuropean
basis of
level,
and on the
other, to theadopted
impact ofby
family
on migration
flows(Belgium,
and most probably
international
instruments
the reunification
World Health
Organisation
France,
vice
versa
. Slovenia).
Poland
and
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I).
sucharticle
a study
to2003/86/EC.
be delineated (II) and its methodology defined (III).
40. However,
See on this point
6 of needs
Directive
394
94
In most cases, the risk for public health is assessed on the basis of an individual GENERAL
examination. INTRO
However, this rule is implemented in a different way in Slovenia. There, an application for a
residence permit for family reunification is rejected if it is discovered that the third country
national comes from a region where there is an outbreak of a contagious disease which
may cause
Migration
policies am
an epidemic listed in the international health rules of the World Health Organisation,
from
whichor
have
had a sig
regions where there are contagious diseases which could threaten people's health and for which
prescribed measures should be introduced on the basis of the law regulating contagious
diseases.
Firstly,
the 1970s oil c
It is questionable whether such a general assessment, based on regional appraisal,
fulfils
the
labour migration
poli
obligation to proceed to an individual examination of the application for family reunification.
to legally enter EU m
B. Public order
migrants entered for t
Meanwhile, the issue
In all of the member states surveyed, threats to public order constitute groundsThe
forgrowing
refusingimpact o
or limiting the right to family reunification. The threat the applicant may cause isright
assessed
on life rep
to family
the basis of previous evidence or evaluated when the application is examined.on
In Human
any case,
rights, the
previous and/or potential 'danger' is taken into consideration.
precisely, the right to
expulsion procedure
Grounds for rejecting the application, withdrawing or refusing to renew the residence
permit
admission
of third co
are numerous in the member states. They include the following:
A second major step o
√ The applicant is registered in the Schengen Information System for non-admission
purposes the Eu
of Amsterdam,
(Belgium, Poland, Slovenia, Sweden).
this basis, it adopted
√ The applicant has been subject to an expulsion order issued by the member state
examining
determines
the condit
The application (Belgium and France) or by another EU member state (Sweden).
residing lawfully on t
√ The applicant has stayed illegally on the territory of the member state (Poland).
conditions for exerci
√ The applicant is suspected of having committed or it is assumed that the applicant
willbeen em
status – have
engage in terrorism, sabotage, espionage, illegal intelligence, drug-related or criminal acts
(Slovenia, Sweden).
However, the novelt
'technical' adoption o
In two member states, rules related to the threat to public order are interpreted
andare clos
the Directive
implemented in a specific way. Portugal is applying the rule in a narrow perspective.
Threats
not to be considered
to public policy, public security or public health may only be taken into accountintegration
to reject the
of migran
application. Such criteria may not be taken into consideration for the renewal or the
withdrawal
Justice's
interpretation
of the residence permit.
has recognised the e
states' margins of ma
In Spain, on the contrary, the application is rejected whenever the family member has a
criminal record. As for renewal of the residence permit, the seriousness of the criminal
Family record
migration rule
must be taken into consideration. In Spain if rejection or non-renewal is based solely
one
On theon
one
hand, thi
criterion, it must be underlined that it is interpreted in a very broad manner. Indeed,
and
level, and oninthe othe
practice, the family member is systematically refused the initial authorisation and
vice renewal.
versa.
Spanish NGOs also criticise the fact that refusals or non-renewals are not only due to
criminal records but due to "police records".
Family reunification
policies and modifica
Finally, Poland has established some very wide criteria to give grounds forand
a European
negative level a
decision. In this member state, reasons to refuse to renew the residence permit may
be
basedsuch a s
(I). However,
95
3
95
on the fact that
the applicant does not comply with fiscal obligations or that the applicant
GENERAL
INTRODUCTION
has entered and resided in the territory for purposes other than those declared. Fiscal reasons
cannot be the sole reason to issue a negative decision. In Slovenia, a negative decision may
also be given
because
there
reasons
to suspect
that a family
not going
to abide
by the
Migration
policies
among
EU are
member
states
have undergone
majorischanges
in recent
decades,
national
legal
system.
which have had a significant impact on family migration rules and policies.
To sum
every
state tremendous
has adoptedchange.
rules toIt refuse
family reunification
public
Firstly,
theup,
1970s
oil member
crisis triggered
drove member
states to adoptfor
restrictive
order migration
reasons. But,
the rules
applicable in family
each state
can be very
detailed
very
labour
policies.
As a consequence,
reunification
became
one ofand
thecover
main ways
tospecific
legally situations.
enter EU member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
In this context, however, some rules are common to all the member states. This is particularly
the case regarding
theofobligation
for nationalhas
authorities
to take
account at
theEuropean
severity of
an
Meanwhile,
the issue
family reunification
been gaining
in into
importance
level.
offence
as well
as the
of legal residence
in the territory
before
issuing a negative
decision.
The
growing
impact
oflength
the European
Court of Human
Rights and
its jurisprudence
regarding
the
right to family life represented a first step. On the basis of Article 8 of the European Convention
This
obligation
national
evaluate
whichstates'
interest
hasfor
to be
protected,More
the
on
Human
rights,leads
the Court
has authorities
framed andtolimited
member
room
manoeuvre.
interest ofthetheright
statetowith
a negative
decision
interestand
of the
individual
in accepting
precisely,
family
life has been
usedorasthe
a strong
successful
argument
against
family reunification.
expulsion
procedures in member states. It has also been successful in cases regarding the
admission of third country nationals.
Such a decision shall in any case be grounded upon an individual examination. Hence,
withmajor
the step
exception
of atthe
Slovenian
mentioned
above,
this force
frameof exists
in
Aand
second
occurred
European
level case
after 1999.
With the
entry into
the Treaty
national
rules
and
is
in
compliance
with
the
obligations
deriving
from
EU
law.
Article
6
of
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Directive
recalls on
"When
taking
the reunification.
relevant decision,
the member
state
this
basis, it 2003/86/EC
adopted a Directive
the right
to family
This Directive
(2003/86/EC)
shall
consider,
besides
Article
17,
the
severity
or
type
of
offence
against
public
policy
or
determines the conditions for exercising the right to family reunification for third country nationals
public
security
committed
by
the
family
member,
or
the
dangers
that
are
emanating
from
residing lawfully on the territory of an EU member state. Since then, several rules related to the
such person".
conditions
for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
This provision of the Directive is very important, and at least as important as article 17,
because itthe
obliges
Member
statesby
to strike
a balance
between the
the state
However,
novelty
introduced
the Treaty
of Amsterdam
goessecurity
much of
further
thanand
the
the
right
to
family
reunification.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
Further
the member
states,
interpretations
European
Courts (EU
not
to bedevelopments
considered as in
a tool
to manage
migration
but rather by
as the
a means
of enhancing
the
Court
of
justice
in
Luxembourg
and
European
Court
of
Human
Rights
in
Strasbourg)
and
integration of migrants legally residing in their host society. Secondly, the European Court
of
discussions
at EU level
on Directive
this issuehas
willplayed
serve atostrong
highlight
whether
and EUit
Justice's
interpretation
of the
role in
giving itmember
a crucialstates
dimension:
actors
are willing
protect of
one
other.
has
recognised
the to
existence
theagainst
right tothe
family
reunification and firmly delineated member
states' margins of manoeuvre.
VI. Consequences
for not
the conditions
Family
migration rules
andmeeting
policies have
been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
For some,
it might
be to
considered
whenever
the sponsor
or family
members
do probably
not fulfil
level,
and on
the other,
the impactthat
of family
reunification
on migration
flows
and most
appropriate
conditions,
the
application
for
family
reunification
is
rejected.
This
view
is too
vice versa.
simplistic and must be put into perspective. Indeed, when assessing and deciding on an
application
for family
member
by landscapes.
at least threeEver-evolving
obligations
Family
reunification
is areunification,
sensitive issue
that is states
subjectare
to bound
changing
deriving
from
the
Directive
and
the
jurisprudence
(A).
As
a
consequence,
member
states
policies and modifications have been very important in the last couple of years at both national
rules
should
comply
with
these
requirements
(B).
However,
the
scope
of
obligations
deserves
and European level and explain why a new study on conditions for family reunification is timely
further
clarification
(C). needs to be delineated (II) and its methodology defined (III).
(I).
However,
such a study
396
96
A. Member state obligations in the examination of applications
GENERAL INTRO
Firstly, according to the Court of justice, member states have an obligation to individualise
the examination of the application and to assess conditions for family reunification
a
Migrationinpolicies
am
manner that promotes the exercise of this right. The very flexible interpretationwhich
given have
by the
had a sig
Court of justice with regard to 'resources' conditions can be extended to all other conditions
required in the framework of the procedure: accommodation, insurance, integration
Firstly, theand
1970s oil c
public order.
labour migration poli
to legally enter EU m
Secondly, when taking a decision to reject an application or to withdraw or migrants
the refuse
to
entered
for t
renew a residence permit, national authorities have to take into account obligations deriving
from article 17 of the Directive. This latter states "member states shall take due
account ofthe issue
Meanwhile,
the nature and solidity of the person's family relationships and the duration of his
Theresidence
growing impact o
in the member state and of the existence of family, cultural and social ties right
withtohis/her
family life rep
country of origin where they reject an application, withdraw or refuse to renewona Human
residence
rights, the
permit or decide to order the removal of the sponsor or members of his precisely,
family". The
the right to
assessment of the length and nature of existing links and relationships resembles
expulsion the
procedure
European Court of Human Rights (ECHR) jurisprudence on article 8. But EU law
introduces
admission
of third co
a huge difference, while the ECHR has developed this jurisprudence mainly with regard to
removal orders, Directive 2003/86/EC has clearly extended it to admission procedures
i.e. step o
A second major
acceptance of family reunification and issuance of residence permits.
of Amsterdam, the Eu
this basis, it adopted
Finally, article 5, paragraph 5, of Directive 2003/86/EC imposes a clear obligation
on the
determines
the condit
member states. It states "when examining an application, the member states shall
have
due on t
residing lawfully
regard to the best interests of minor children".
conditions for exerci
status – have been em
The margins of manoeuvre of the member states are importantly framed by EU law. Member
states have to
However, the novelt
'technical' adoption o
√ carry out an individual examination of each application;
the Directive are clos
√ evaluate conditions for family reunification in a flexible way that takes intonot
account
to be the
considered
specificity of each case and with a view to promote family reunification; integration of migran
√ pay due account to the nature and solidity of the family relationship, the Justice's
length ofinterpretation
the
stay in the territory and the links with the country of origin;
has recognised the e
√ where necessary have due regard to the best interest of the children.
states' margins of ma
Family migration rule
On the one hand, thi
level, and on the othe
National reports completed for the purpose of this study show differences vice
between
versa.the
member states regarding the obligations deriving from EU rules. While some member states
seem to respect, in general, these requirements, others seem to be less demanding.
Family reunification
B. Member state rules
policies and modifica
Slovenia is an isolated example, where the rejection of an application for a first
andresidence
European level a
permit for family reunification is automatic. The rejection of an extension of the
residencesuch a s
(I). However,
97
3
97
permit is however
discretionary rather than automatic. According to the Aliens Act, when
GENERAL
INTRODUCTION
deciding on the application for extension, the competent authority is obliged to consider the
nature and strength of the family relationship, the duration of his or her residence in the
Republic policies
of Slovenia
andEU
themember
existence
of have
family,
cultural major
and social
tiesinwith
thedecades,
country
Migration
among
states
undergone
changes
recent
of
origin.
which have had a significant impact on family migration rules and policies.
Regarding
the other
member
states,
they refer
to all or
several
of thestates
obligations
Firstly,
the 1970s
oil crisis
triggered
tremendous
change.
It drove
member
to adoptmentioned
restrictive
above.
labour migration policies. As a consequence, family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
A first group
of member
states isofcomposed
with France, Germany and Sweden. These States
migrants
entered
for the purpose
family reunification.
respect the main conditions established by EU law: namely, the obligations deriving from
article 17, the
examination
of thehas
application
and in
theimportance
best interest
the children.
Meanwhile,
theindividual
issue of family
reunification
been gaining
at of
European
level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
A second
group
Poland,
andbasis
Belgium.
These
States
fulfil two Convention
of the three
right
to family
lifecomprises
represented
a first Portugal,
step. On the
of Article
8 of
the European
obligations.
Portugal
and
Belgium
respect
obligations
imposed
by
article
17
and
theMore
best
on Human rights, the Court has framed and limited member states' room for manoeuvre.
interest
of
the
children,
whereas
Poland
takes
into
account
the
individual
examination
and
precisely, the right to family life has been used as a strong and successful argument against
the
best
interest
of
the
children.
expulsion procedures in member states. It has also been successful in cases regarding the
admission of third country nationals.
However, the Belgian case deserves some attention. The possibility to take into account the
solidity
links step
and occurred
the length
stay, as level
requested
by article
the into
Directive,
possible
A
secondofmajor
at of
European
after 1999.
With 17
theof
entry
force ofisthe
Treaty
but
not
in
the
framework
of
the
family
reunification
procedure.
Instead,
where
conditions
for
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
family
reunification
are
not
fulfilled,
the
Minister
may,
on
a
discretionary
basis,
consider
the
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
nature and the
solidity
of linksforasexercising
well as the
offamily
stay inreunification
Belgium andforthe
applicant's
cultural,
determines
conditions
thelength
right to
third
country nationals
family
and
social
ties.
In
this
regard,
it
is
doubtful
whether
Belgian
law
complies
with
EU
residing lawfully on the territory of an EU member state. Since then, several rules related to the
requirements
as
this
evaluation
is
not
made
within
the
family
reunification
procedure
but
in
conditions for exercising the right to family reunification – as well as rights deriving from this
a
different
one.
status – have been embedded in EU rules, which impact upon national rules and practices.
A third group
is made introduced
up of Spainbyand
Netherlands.
In thegoes
Netherlands,
article
of
However,
the novelty
thethe
Treaty
of Amsterdam
much further
than17the
the
Directive
seems
to
be
the
only
requirement
that
is
implemented,
but
only
regarding
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
refusals
on grounds
of public
only applies
rules In
related
to thethe
best
interestshould
of the
the
Directive
are closely
linkedorder.
to theSpain
integration
of migrants.
this view,
Directive
children
but,
according
to
the
national
expert,
it
also
applies
the
rule
regarding
individual
not to be considered as a tool to manage migration but rather as a means of enhancing the
examination
the application.
integration
of of
migrants
legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
According
to national
reports,
of these
States
use additional
specific
rules. member
has
recognised
the existence
of some
the right
to family
reunification
and or
firmly
delineated
states' margins of manoeuvre.
This is the case for Germany where these obligations are completed with a proportionality
test in the
case where
extension
the been
residence
permitmodified
is refusedfororalmost
in an expulsion
Family
migration
rules an
and
policies of
have
constantly
40 years case.
now.
On the one hand, this is due to the modification of migration policies at national and European
In Belgium
and
Poland,
situations
related
to abuseonof
marriage
may
to extra
level,
and on the
other,
to the impact
of family
reunification
migration
flows
and lead
most probably
investigations
or
to
a
withdrawal
of
the
residence
permit
during
a
defined
period
of
time
after
vice versa.
the permit was issued.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
Finally, and
the modifications
notion of individual
examination
of the
application
a very
policies
have been
very important
in the
last coupleisofinterpreted
years at bothinnational
specific
way
in
the
Netherlands.
Indeed,
and
in
reaction
to
the
Chakroun
judgment,
the
and European level and explain why a new study on conditions for family reunification is timely
Minister
stated
that
the
government
already
takes
into
account
all
individual
circumstances
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
398
98
as this obligation is reflected in the policy, especially in the exemptions outlined.
In other INTRO
GENERAL
words, the fact that Dutch rules exempt some categories of persons to fulfill the conditions
– for instance, persons aged 65 years or older or disabled persons – proves that an
individual examination is ensured. While, according to the expert, national Migration
judges have
policies am
approved this argument, it is highly questionable that this position is compatible
with
which
haveEU
had a sig
law. While it is true that exemption allows some people to be relieved of obligations, it is
not ensured that applications lodged by people who are subject to conditionsFirstly,
will benefit
the 1970s oil c
from an individual assessment.
labour migration poli
C. The need to clarify the scope of obligations
to legally enter EU m
migrants entered for t
EU rules and jurisprudence frame the margins of manoeuvre of member Meanwhile,
states whenthe issue
assessing an application for family reunification. It is not entirely sure whether those
memberimpact o
The growing
states surveyed respect all of the obligations deriving from EU law. This is theright
casetohaving
family life rep
regard to the list of obligations but also having regard to their specificity.
on Human rights, the
precisely, the right to
For instance, having regard to article 17 of Directive 2003/86/EC, it might be assumed
expulsionthat
procedure
member states implementing this obligation also fulfil the obligation to admission
conduct of
anthird co
individual assessment of the application. However, this assumption should be specified.
Article 17 establishes a general obligation which requires an individual examination
of step o
A second major
applications for family reunification whereas the jurisprudence developed by of
the
Court
of
Amsterdam, the Eu
Justice extends this obligation to the assessment of material conditions requested
family
thisfor
basis,
it adopted
reunification. In other words, the Court has clearly defined the obligations that
must
determines be
the condit
fulfilled by national administrations in their appraisal of the conditions. In thisresiding
regard,lawfully
this on t
specified obligation should now be implemented at national level in law and practice.
conditions for exerci
status – have been em
This point leads to an extremely important question: do member states take into
consideration all the effects of the jurisprudence of the Court of Justice with regard
to family
However,
the novelt
reunification? This may not necessarily be the case when one considers all the
duties
'technical'that
adoption o
must be carried out by competent authorities nowadays. It is, therefore, essential
to make are clos
the Directive
these implications very clear for the correct implementation of the rules in not
the to
member
be considered
states as well as the legal protection of applicants for family reunification.integration
It could for
of migran
instance be very helpful to have guidelines on these effects for the member states
and interpretation
third
Justice's
country nationals. The European Commission could prepare such a documenthas
delineating,
recognised the e
in a comprehensive and unambiguous manner, rights and obligations for the applicants
and of ma
states' margins
the administrations.
Family migration rule
In any case, discussions relating to member states' margins of manoeuvre are decisive
the
On thefor
one
hand, thi
member states and the individuals. While individuals are currently protected by level,
EU rules
and
and on the othe
the ECJ's interpretations, member states may be tempted to intervene in order tovice
regain
some
versa
.
leeway. A clash could arise between the objective outlined by the Court to promote family
reunification and the objective followed by some member states, like France
the
Family or
reunification
Netherlands, to limit family migration. Discussions about conditions for family reunification,
policies and modifica
and the consequences for not meeting them, should be at the heart of further developments
and European level a
in the field of family reunification.
(I). However, such a s
99
3
99
SECTION 4 –INTRODUCTION
IMPACT AND TRENDS IN THE MEMBER STATES
GENERAL
Even before
the adoption
of Directive
2003/86/EC,
family reunification
was in
a core
of
Migration
policies
among EU
member states
have undergone
major changes
recentelement
decades,
most
national
policies
and
therefore
already
subject
to
public
attention
and
legal
action.
The
which have had a significant impact on family migration rules and policies.
adoption of the Directive has had the effect of shifting the issue from national to EU level.
Member
to adopttremendous
common rules
in this
field led
to thestates
adoption
of a restrictive
Directive
Firstly,
thestates'
1970sreluctance
oil crisis triggered
change.
It drove
member
to adopt
with
low
binding
effect
and
full
of
optional
provisions.
During
the
negotiations,
national
labour migration policies. As a consequence, family reunification became one of the main
ways
delegations
were
mainly
anxious
that
the
common
text
would
not
endanger
national
rules.
to legally enter EU member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
Since the first assessments in 200741, it has become clear that the Directive has had several effects
on national rules.
On of
thefamily
one hand,
it has obliged
member
states
to adopt new
rules or modify
Meanwhile,
the issue
reunification
has been
gaining
in importance
at European
level.
existing
rules
in
order
to
comply
with
EU
requirements.
This
has
mostly
concerned
new member
The growing impact of the European Court of Human Rights and its jurisprudence regarding
the
statestofrom
thelife
East,
which did anot
take
part
inthe
the basis
negotiation
but8were
still
obliged to
transpose
right
family
represented
first
step.
On
of Article
of the
European
Convention
all Human
the EU acquis
including
Directive
the other
hand,
hasmanoeuvre.
allowed member
on
rights, the
Court has
framed2003/86/EC.
and limited On
member
states'
roomit for
More
states
to
adapt
rules,
mainly
those
that
are
related
to
conditions
for
family
reunification.
Here,
precisely, the right to family life has been used as a strong and successful argument against
member
states
have
either
adopted
new
requirements
or
strengthened
previous
ones.
expulsion procedures in member states. It has also been successful in cases regarding the
admission of third country nationals.
Family reunification policies appear to have been continuously under strain at national or EU
versainto
. This
section
to
level
in recent
years.
The national
level level
fuelsafter
EU level
A
second
major step
occurred
at European
1999.and
Withvice
the entry
force
of thetries
Treaty
outline
the
impact
that
Directive
2003/86/EC
has
had
over
member
states
at
three
different
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
levels:
at the
level ofa administrative
(I); at reunification.
the level of the
of (2003/86/EC)
applications
this
basis,
it adopted
Directive on thepractices
right to family
Thisnumber
Directive
(II);
and
at
the
level
of
national
jurisprudence
(III).
determines the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
I. Administrative
level the right to family reunification – as well as rights deriving from this
conditions
for exercising
status – have been embedded in EU rules, which impact upon national rules and practices.
The impact of modifications at administrative level refers more precisely to the effects of the
transposition
Directive
2003/86/EC
andTreaty
modification
of rulesgoes
on the
actions
taken
by the
the
However,
the ofnovelty
introduced
by the
of Amsterdam
much
further
than
administration,
on
the
length
of
the
procedure
and
on
the
controls
implemented
in
member
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
states
with regard
to thelinked
conditions
the
Directive
are closely
to therequired.
integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
A. Impact on
administrative
integration
of migrants
legallyaction
residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
According
to the
in of
eight
states,reunification
the transposition
of thedelineated
directive member
has had
has
recognised
thereports,
existence
the member
right to family
and firmly
an impact
on the
action of competent national bodies.
states'
margins
of manoeuvre.
The national
experts
Germany,
Portugal,
Spain
and Sweden
consider
thatnow.
the
Family
migration
rulesinand
policies Poland,
have been
constantly
modified
for almost
40 years
impact
on hand,
the actions
taken
administration
in each
of these
countries
been
On
the one
this is due
to by
the the
modification
of migration
policies
at national
and has
European
positive
positive.
level,
andoronrather
the other,
to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies
and modifications have been very important in the last couple of years at both national
41. See H. Labayle & Y. Pascouau, op. cit., and K. Groenendijk, R. Fernhout, D. van Dam, R. van Oers & T. Strik
and"The
European
level and explain
why
a new study
onFirst
conditions
for family reunification
is timely
Family Reunification
Directive in
EU member
states. The
Year of Implementation",
Centre for Migration
Law,
(I). However,
such
a study
to be delineated
(II) and its methodology defined (III).
Willem-Jan and
René
van derneeds
Wolf Publishers,
2007.
3100
100
In Spain, for instance, the extension of the scope of family reunification GENERAL
to common INTRO
law couples as well as the establishment of a financial requirement are considered to be
positive modifications.
Migration policies am
In Sweden, controls over married persons are now less important than before. With
new
whichthe
have
had a sig
rules, the sponsor only has to fill in an affirmation of the alleged marriage, contrary to the
practice before the Directive was transposed when an investigation of the seriousness
of 1970s
the oil c
Firstly, the
relationship was systematically carried out.
labour migration poli
to legally enter EU m
In Poland, the provisions of the family reunification Directive were introduced in
2005. They
migrants
entered for t
set in order and unified the work of all 16 administrative bodies ("voivodeships") in the family
reunification field. It also forced the authorities to adopt provisions to better coordinate
thethe issue
Meanwhile,
activities of the Border Guard and administration organs.
The growing impact o
right to family life rep
In Portugal, and as a result of the modifications introduced in 2007, the administrative
procedure
on Human
rights, the
is considered to be clearer and faster.
precisely, the right to
expulsion procedure
On the contrary, the impact of the directive is rather negative in Belgium,admission
France and
of third co
Slovenia.
A second major step o
In France, the legislator has taken advantage of the transposition of the directive
to make the Eu
of Amsterdam,
previous rules tougher and to introduce new requirements such the integration in
the
country
this basis,
it adopted
of origin rule.
determines the condit
residing lawfully on t
In Belgium, recent legislative modifications follow the trend taking place in some
member
conditions
for exerci
states and at EU level in the sense that conditions for family reunification are becoming
lessbeen em
status – have
flexible. Hence, and in practice, there will be more controls than in the past. However,
checks regarding family links are currently more important.
However, the novelt
'technical' adoption o
In Slovenia, the process has been two-fold. In a first phase that occurred in the
2005,
in theare clos
Directive
course of the transposition of the Directive, the conditions for family reunification
were
made
not to be
considered
more restrictive than before. For example, the right to family reunification was
limited
to migran
integration of
sponsors with a permanent residence permit and foreigners with a one-year
temporary
Justice's interpretation
residence permit who have already been residing in Slovenia for one year. Onlyhas
in 2011
was the e
recognised
access to this right again recognised for all sponsors with permanent and
temporary
states' margins of ma
residence permits (except seasonal workers) because the state realised that the previous
restrictions were not necessary. Also, the scope of family reunification has beenFamily
widened
to
migration
rule
registered and cohabiting partners and the new legislation has made conditions regarding
the
On the one hand, thi
type of residence permit more lenient.
level, and on the othe
vice versa.
The impact of the Directive in the Netherlands is difficult to evaluate. On the one hand, it has
been minimal in the sense that the modification of Dutch rules, and consequently
Family reunification
administrative rules and practice, did not clearly pursue the implementation of the
Directive.
policies
and modifica
On the other hand, the Directive and its interpretation by the European Court and
of Justice
are level a
European
having an impact on Dutch rules. The abolishment of the distinction between family
formation
(I). However, such a s
101
3
101
and family reunification
and the modification of the income requirement from 120 to 100%
GENERAL
INTRODUCTION
are good examples of this phenomenon. Some Dutch rules remain however incompatible with
the Directive and further rulings and modifications may therefore be expected.
Migration policies among EU member states have undergone major changes in recent decades,
To sum
up:had a significant impact on family migration rules and policies.
which
have
√ the
the1970s
impact
of thetriggered
Directive
has beenchange.
positiveIt drove
more member
particularly
with
regard
to the
Firstly,
oil crisis
tremendous
states
to adopt
restrictive
extensionpolicies.
of the personal
scope of family
and alsoone
with
regard
the
labour migration
As a consequence,
family reunification became
of the
maintoways
procedure
has states.
either been
established
first time
in some
member
states or
to legally
enter EUwhich
member
Figures
in some for
EU the
countries
confirm
that
the majority
of
clearer
andpurpose
faster inofothers;
migrantsmade
entered
for the
family reunification.
√ the impact of the Directive has been negative where it has allowed member states to
strengthen
requirements
regarding conditions
familyin
reunification;
Meanwhile,
the issue
of family reunification
has beenfor
gaining
importance at European level.
√
while
the
transposition
of
the
Directive
has
made
the
procedure
clearer, it has
also made
The growing impact of the European Court of Human Rights and its jurisprudence
regarding
the
the
rules
stricter
for
family
members
in
many
cases.
right to family life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
B. Impact procedures
on the length
the procedure
expulsion
in of
member
states. It has also been successful in cases regarding the
admission of third country nationals.
The length of the procedure is crucial for family members. As we have seen, Directive
2003/86/EC
setsstep
outoccurred
two different
timelines.
should
examined
within
A
second major
at European
levelThe
afterapplication
1999. With the
entrybe
into
force of the
Treaty9
months
and
the
waiting
period
before
the
spouse
and
other
family
members
are
able
to
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.join
On
the basis,
sponsor
should not
exceed on
2 years.
this
it adopted
a Directive
the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
In four member
states
Germany,
and several
Spain –rules
no modifications
residing
lawfully on
the –territory
of anthe
EUNetherlands,
member state.Poland
Since then,
related to the
in
this
regard
has
been
highlighted
by
the
national
experts.
It
should
however
be underlined
conditions for exercising the right to family reunification – as well as rights deriving
from this
that this
situation
will change
the Netherlands
toand
the practices.
Directive, the
status
– have
been embedded
in in
EU2012
rules,inwhich
impact uponwhere,
nationaldue
rules
double assessment of the conditions for family reunification – abroad and after admission –
will be abandoned.
Belgium, by
France,
Portugal,
Slovenia and
however,
the
However,
the novelty Inintroduced
the Treaty
of Amsterdam
goes Sweden,
much further
than the
length
of
the
procedure
has
been
impacted.
In
France,
for
instance,
the
transposition
of
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the rootsthe
of
Directive
hasare
had
the effect
the ofdelay
of examining
thethe
application,
more
the
Directive
closely
linked of
to increasing
the integration
migrants.
In this view,
Directive should
particularly
with regard
establishing
an evaluation
of as
language
skills
in the country
not
to be considered
as to
a the
toolrule
to manage
migration
but rather
a means
of enhancing
the
of
origin.
In
Slovenia
and
Sweden,
the
impact
concerns
the
mere
adoption
a rule
integration of migrants legally residing in their host society. Secondly, the EuropeanofCourt
of
regarding
the length of
of the
theDirective
procedure
or a role
one in
year
waiting
perioddimension:
(Slovenia).
Justice's
interpretation
has (Sweden)
played a strong
giving
it a crucial
it
Finally,
in Portugal,
the impact
is right
significant
as the
delay for and
examining
an application
for
has
recognised
the existence
of the
to family
reunification
firmly delineated
member
familymargins
reunification
is only 10 days or so, which is very impressive. The procedure applicable
states'
of manoeuvre.
in Portugal should therefore be further analysed in order, on the one hand, to define which
elements
allow forrules
suchand
a fast
track examination
and, on the
other hand,
to see 40
to what
Family
migration
policies
have been constantly
modified
for almost
yearsextent
now.
it
could
be
copied
by
other
member
states.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
C. Impact
vice
versa. on controls among applications
The definition
of conditions
for family
reunification
goes
hand in
hand withEver-evolving
procedures
Family
reunification
is a sensitive
issue that
is subject to
changing
landscapes.
aimed
at
checking
whether
applicants
fulfil
required
conditions.
In
short,
have
member
states
policies and modifications have been very important in the last couple of years at both national
increased
internal
checks?
In
two
states
–
France
and
Germany
–
no
modification
occurred,
and European level and explain why a new study on conditions for family reunification is timely
whereas
in seven
checkstoover
applications
haveitsbeen
modified.defined (III).
(I).
However,
such aothers,
study needs
be delineated
(II) and
methodology
3102
102
In Poland and Slovenia, effects over checks are primarily linked with the transposition
of the INTRO
GENERAL
Directive which has obliged these states to establish a formal procedure in this respect. This
modification of national rules has led to two different phenomena. In Poland, national
officers noticed a significant increase in family reunification applications following
accession
Migration
policies am
to the EU. In Slovenia, and as a consequence of the adoption of new procedures,
more
which have
had a sig
family members have been granted the right to family reunification. The establishment of a
certainty
procedure has in fine had a positive effect on family reunification in terms of legal
Firstly,
the 1970s oil c
and numbers.
labour migration poli
to legally enter EU m
Spain may also be linked to these member states as the transposition of Directivemigrants
2003/86/EC
entered for t
has meant the modification of several rules including those related to checks regarding
resources and accommodation. Such a development has also occurred in Sweden
where thethe issue
Meanwhile,
introduction of new conditions for family reunification has meant increased
controlsimpact o
The growing
regarding income and accommodation.
right to family life rep
on Human rights, the
In Belgium and the Netherlands, checks over applications have intensified. Itprecisely,
is, however,
the right to
difficult to determine whether this phenomenon is linked with the transposition
of the
expulsion
procedure
Directive or with national policies aimed at controlling different aspects
of family
admission
of third co
reunification more closely such as marriages of convenience (the Netherlands). According
to the Dutch national expert, this is more likely to be linked with national policy.
A second major step o
of Amsterdam, the Eu
Finally, rules regarding the controls of applications have also changed in Portugal
this basis,and
it adopted
Sweden. In Sweden, controls have been weakened. Hence, before implementing
determinesthe
the condit
Directive on Family Reunification, assessments were made regarding the seriousness
the on t
residingoflawfully
relationship, regardless of whether the applicant and sponsor were married, conditions
registered for
as exerci
partners, in a cohabiting relationship or in a newly established relationship.
Since
the
status – have been em
implementation of the Directive, marriages cannot be investigated if the marriage does not
appear to be a marriage of convenience or a fraud. In Portugal, the Borders andHowever,
Immigration
the novelt
Service are now entitled to set up interviews with the applicant or his family 'technical'
and conduct
adoption o
any other kind of investigation regarding the application.
the Directive are clos
not to be considered
To sum up, modifications of national administrative rules and practices are based
on two
integration
of migran
different grounds:
Justice's interpretation
has recognised the e
√ the obligation to transpose the Directive which has led to a limitationstates'
of member
margins of ma
states' leeway such as the rules related to the length of the procedure;
√ national orientations which remain very strong and determine whether member
Family states
migration rule
are willing to facilitate (Portugal) or restrict (the Netherlands) family reunification.
On the one hand, thi
level, and on the othe
vice versa.
II. Number of applications
Family reunification
In the context of this study devoted to conditions for family migration, one
underlying
policies
and modifica
question has been to determine to what extent new or additional conditions introduced
in level a
and European
the member states have had an impact on family migration flows.
(I). However, such a s
103
3
103
Therefore, national
experts were asked to provide data on the number of residence permits
GENERAL
INTRODUCTION
issued for the purpose of family migration and to comment where changes are significant.
Number of residence permits issued for the purpos e of family reunification
Migration policies among
EU member states have undergone major changes in recent decades,
which have had a significant
impact
migration rules
and policies.
2005
2006on family2007
2008
2009
2010
42
BE
na
8 922
na
na
203201
28 5232
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
23 814 As a 20
364
20
414 reunification
19 691 became
17one
195of the main
na ways
labourFR
migration policies.
consequence,
family
GER
29
433
na
na
na
na
na of
to legally enter EU member states. Figures in some EU countries confirm that the majority
NL*entered for
21 the
900purpose22of652
12 105
15 000
15 000
na
migrants
family reunification.
PL
na
na
7 795
8 877
8 666
8 633
Meanwhile,
has47been gaining
in importance
level.
PT the issue
naof family reunification
na
4 652
2 577at European
2 507
The growing
impact848
of the European
regarding
SL
3 744Court of 2Human
253 Rights3 and
495 its jurisprudence
2 749
2 862 the
rightSP**
to family life represented
a first
Article
Convention
na
na step. On the
na basis of 150
1018 of the
125European
288
131 669
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
SW
na
na
28 975
33 184
34 082
24 626
precisely,
the right to family life has been used as a strong and successful argument against
na: not available
expulsion
procedures
inthismember
states.theItnumber
has also
casesreunification
regarding the
*figures reproduced
regarding
country represent
of visasbeen
issuedsuccessful
for the purposein
of family
** figures available
Spain arenationals.
retrieved from Eurostat statistics. They concern the total data for family reunification i.e.
admission
of thirdforcountry
43
family reunification of third country nationals, EU citizens and stud ents. There are no data related to f amily reunification of
third country nationals only.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
A. General
trends a Directive on the right to family reunification. This Directive (2003/86/EC)
this
basis, it adopted
determines the conditions for exercising the right to family reunification for third country nationals
As a general
comment,
the figures
show
huge
differences
between
the member
residing
lawfully
on the territory
of an provided
EU member
state.
Since
then, several
rules related
to the
states
with
regard
to
the
number
of
residence
permit
issued
for
the
purpose
family
conditions for exercising the right to family reunification – as well as rights deriving of
from
this
reunification.
While
Spain delivered
more
thanimpact
125,000
residence
a year
in the last
status
– have been
embedded
in EU rules,
which
upon
nationalpermits
rules and
practices.
two years, Portugal delivered around 2,500 i.e. around 50 times less. It should however be
underlinedthe
that
Spanish
data refers
typesofofAmsterdam
family reunification
third than
country
However,
novelty
introduced
by to
theall
Treaty
goes muchi.e.
further
the
nationals,
EU
citizens
and
also
students,
which
thus
renders
the
comparison
difficult.
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
As regards
trends, several
points
need to migration
be touched
member
states – the
not
to be considered
as a tool
to manage
butupon.
ratherInas three
a means
of enhancing
the
Netherlands,
Poland
–
the
number
of
residence
permits
or
visas
issued
for
the
purpose
family
integration of migrants legally residing in their host society. Secondly, the European of
Court
of
reunification
grew between
2007 andhas
2008
anda then
stableit a(the
Netherlands
and
Justice's
interpretation
of the Directive
played
strongremained
role in giving
crucial
dimension:
it
Poland).
It should
underlined
however
thatfamily
changes
reported for
thefirmly
Netherlands
andmember
Poland
has
recognised
thebeexistence
of the
right to
reunification
and
delineated
are very
small.ofIt manoeuvre.
is therefore difficult to identify any clear and significant trend. In Spain, the
states'
margins
number of residence permits issued decreased in 2009 and slightly increased in 2010.
Family migration rules and policies have been constantly modified for almost 40 years now.
On the
the one
contrary,
residence
permits
issued forpolicies
family reunification
declined
in
On
hand,the
thisnumber
is due toofthe
modification
of migration
at national and
European
France
after
2007
and
since
2008
in
Portugal
and
Slovenia.
In
Sweden
in
2010,
the
number
level, and on the other, to the impact of family reunification on migration flows and most probably
of residence
vice
versa. permits issued dropped from 34 082 to 24 626 in one year.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies
and modifications have been very important in the last couple of years at both national
42. See I. Lodewyckx, C. Timmerman & J. Wets "Le regroupement familial en Belgique: les chiffres derrière le mythe",
andFondation
European
and 2011.
explain why a new study on conditions for family reunification is timely
Roilevel
Baudouin,
(I).
However,
such
a
study
needsbytothebe
delineated
andpoint
its methodology
43. Figures taken from a report issued
Belgian
national(II)
contact
for the Europeandefined
Migration(III).
Network.
3104
104
B. Reasons for modifications in trends
GENERAL INTRO
Family migration is dependant upon a series of factors that shape it. Economic and political
conditions as well as demography are the main factors.44 These factors can explain
to some
Migration
policies am
extent the changes in the number of applications introduced in the member states.
which have had a sig
Political conditions – i.e. policies developed and rules adopted by the member states
regarding
Firstly,
the 1970s oil c
entry and residence of third country nationals – have played an active role in five member
states
labour migration
poli
(France, the Netherlands, Poland, Portugal and Sweden).
to legally enter EU m
migrants entered for t
In the Netherlands, France and Sweden, modifications of the conditions for family reunification
have played a major role in the decrease of entries for family reunification.
Meanwhile, the issue
The growing impact o
The phenomenon is very much evident regarding the Dutch and Swedish
examples.
right
to family life rep
Following modifications introduced by the 2006 law in the Netherlands, the number
of visas
on Human
rights, the
issued for family reunification dropped from 22,652 to 12,015. An identicalprecisely,
situationthe
is right to
visible in Sweden after the introduction of new requirements regarding accommodation
and
expulsion procedure
resources in the 2010 law led to a decrease from 34,082 to 24,626.
admission of third co
In France, the phenomenon is less perceptible. Successive modifications introduced
in 2006
– step o
A second
major
extension of the waiting period and modification of resources and accommodation
conditions
of Amsterdam, the Eu
– and 2007 – the introduction of integration measures in the country of origin – this
produced
basis, itan
adopted
effect but it is less important and significant in numbers than in other member states.
determines the condit
residing lawfully on t
The main difference underlined between the Netherlands and Sweden, on the
one hand,
conditions
for exerci
and France, on the other, may find some explanations. As regards the Netherlands,
rulesbeen em
status – have
regarding conditions for family reunification and more particularly rules related to
integration in the country of origin have had a very strong effect in making
family
However,
the novelt
reunification far more difficult and deterring family members from applying
for
family
'technical' adoption o
reunification. As a consequence, the number of applications decreased significantly
and are clos
the Directive
immediately after the adoption of the rule. In Sweden, the introduction ofnot
a resources
to be considered
condition and an accommodation condition is a major policy change and may
therefore
integration
of migran
have had a significant impact either on the number of applications introduced
or ininterpretation
the
Justice's
number of applications rejected because the conditions were not met. On thehas
contrary,
in the e
recognised
France, rules regarding conditions for family reunification were introduced in astates'
progressive
margins of ma
manner and have not overthrown existing rules. The extension of the waiting period from
12 months to 18 months was perhaps the toughest measure taken by FrenchFamily
authorities.
migration rule
As regards integration measures in the country of origin, the regime adoptedOn
in the
France
one is
hand, thi
far less restrictive than the Dutch one. In this regard, it may have been considered
level, and less
on the othe
as a deterrent.
vice versa.
44.
105
Family reunification
policies and modifica
and
In this regard see I. Goldin, G. Cameron & M. Balarajan, "Exceptional People. How Migration Shaped
OurEuropean
World and level a
(I). However, such a s
Will Define Our Future", Princeton University Press, Princeton and Oxford, 2011.
3
105
Finally, a lastINTRODUCTION
remark can be put
GENERAL
forward regarding this group of States and concerning
current and forthcoming trends. Currently, the Netherlands are registering a very slight
increase in the number of visas issued for family reunification. It is not sure whether this
phenomenon
willamong
last. However,
thestates
number
visas issued
currently
below
Migration
policies
EU member
haveofundergone
major
changesremains
in recentfar
decades,
figures
provided
before
2007.
As
regards
France,
it
will
be
interesting
to
analyse
future
which have had a significant impact on family migration rules and policies.
figures and see in the long run how 'effective' the rules have been in decreasing family
migration
flows.oil crisis triggered tremendous change. It drove member states to adopt restrictive
Firstly,
the 1970s
labour migration policies. As a consequence, family reunification became one of the main ways
Poland
a different
situation.
In this
member
the confirm
decreasethat
in the
the majority
number of
of
to
legallypresents
enter EU
member states.
Figures
in some
EU state,
countries
residence
permits
issued
is
not
significant
at
all.
However,
another
trend
is
visible
and
is
migrants entered for the purpose of family reunification.
related to the increase of negative decisions (see table below). According to the national
expert, this the
phenomenon
is probably
basedhas
onbeen
newgaining
investigation
competences
awarded
to
Meanwhile,
issue of family
reunification
in importance
at European
level.
the
Border
Guard
authorities
to
assess
the
credibility
of
applicants.
This
has
contributed
to
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
identifying
false
applications.
right to family life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
Decisions
onlife
applications
in Poland
precisely, the right
to family
has been for
usedfamily
as a reunification
strong and successful
argument against
expulsion procedures in member states. It has also been successful in cases regarding the
2007
2008
2009
2010
Total
admissionYear
of third country nationals.
Applications
8484
9346
9259
9393
36482
decisions
7795
8666
8633
A Positive
second major
step occurred
at European8877
level after 1999.
With the entry
into force of33971
the Treaty
of Amsterdam,
Union (EU) gained
of migration issues.
Negativethe European164
126 competences
351 in the field345
986 On
this basis,
it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
decisions
determines the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
Finally, Portugal
may bethe
added
group
of States within
which
has had
conditions
for exercising
righttotothe
family
reunification
– as well
as new
rightslegislation
deriving from
this
an
effect
on
the
decrease
of
residence
permits
issued
for
family
reunification.
However,
status – have been embedded in EU rules, which impact upon national rules and practices. this
member state presents a very particular situation. First of all, there was a 'boom' in the
numbers of
for family by
reunification
due to goes
the regularisation
tensthe
of
However,
theapplication
novelty introduced
the Treaty in
of 2008
Amsterdam
much further ofthan
thousands
of
migrants
in
2007.
After
2008
however,
the
number
of
applications
for
family
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
reunification
significantly
decreased.
the
Directive are
closely linked
to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
In Slovenia,
decrease
in residing
the number
of host
residence
issued
linked with
integration
of the
migrants
legally
in their
society.permits
Secondly,
the is
European
Courtthe
of
economic
crisis.
The
national
expert
explains
that
since
the
issuance
of
residence
permits
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension:for
it
family
reunification
dependsof
onthe
whether
not residence
permits
issued
for sponsors,
the
has
recognised
the existence
right toorfamily
reunification
andare
firmly
delineated
member
declining
of the
was accompanied by the declining of the latter.
states'
margins
of former
manoeuvre.
Data given
for rules
Spainand
arepolicies
difficult
to been
interpret
as they
concern
all types
of family
Family
migration
have
constantly
modified
for almost
40 years
now.
reunification
i.e.
third
country
nationals,
EU
citizens
and
also
students.
This
renders
On the one hand, this is due to the modification of migration policies at national and European
the comparison
difficult.
However,
the decrease
in on
themigration
numberflows
of permits
is
level,
and on the other,
to the impact
of family
reunification
and mostissued
probably
attributed
by
the
national
expert
to
the
crisis
as
well
as
the
return
of
numerous
families
vice versa.
to their own country.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies
have been very
in the last
couple
of years
both national
To sumand
up,modifications
three main conclusions
mayimportant
be put forward
with
regard
to theat trends
in the
and
European
level andpermits
explainissued
why a for
newthe
study
on conditions
family reunification is timely
number
of residence
purpose
of familyfor
reunification:
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
3106
106
√ In all of the member states surveyed, a general trend starting roughly in 2007/2008
shows INTRO
GENERAL
a decrease in the number of residence permits or visas issued for family reunification.
√ In these member states, this decline is mainly linked to the modification of national rules
related to the conditions for family reunification.
Migration policies am
√ The economic crisis has had very little effect on the phenomenon.
which have had a sig
Firstly, the 1970s oil c
labour migration poli
to legally
Since the adoption of Directive 2003/86/EC, member states' margins of manoeuvre
in enter
the EU m
migrants
entered
for t
field of family reunification are limited. On the one hand, they have to transpose and
correctly implement the provisions of the Directive, particularly at administrative level. On
Meanwhile,
the other hand, the Directive creates rights for individuals. Individuals can therefore
rely onthe issue
The
growing
the Directive if they wish to challenge a negative decision either before the administrativeimpact o
rightintoafamily
authorities or before the national judge. Whenever a national judge has to rule
case life rep
on Humanthe
rights, the
involving Directive 2003/86/EC, there are two possibilities. In its duty to guarantee
precisely, the right to
individual's rights, the national judge may:
expulsion procedure
admissionwith
of third co
√ decide to exclude the implementation of a national rule due to its incompatibility
Directive 2003/86/EC; or
A second major
√ ask the European Court of Justice to interpret the provisions of Directive 2003/86/EC
in step o
of Amsterdam, the Eu
order to apply them correctly to the case law.
this basis, it adopted
determines
the condit
As a result, national judges play a crucial role in the implementation of the Directive
and the
residing
protection of the right to family reunification. The question in the framework of this
studylawfully
was on t
for exerci
to examine to what extent national judges made use of the possibilities eitherconditions
to apply the
status
– have
provisions of the Directive against national rules and administrative decisions
or ask
thebeen em
Court of Justice to interpret some provisions of the Directive. In both situations, the impact
However, the novelt
and role of national judges has been quite limited.
'technical' adoption o
thedecisions
Directive are clos
A. Application of Directive 2003/86/EC against national rules or administrative
not to be considered
integration
of migran
This situation may occur where national rules are incompatible with some clear
provisions
interpretation
of the Directive. Among the nine member states surveyed, it appears that in onlyJustice's
two of them,
recognised
national courts have considered domestic rules to be incompatible with the has
provisions
of the e
states'
margins
of ma
Directive 2003/86/EC.
III. Jurisprudence
Family
migration rule
In Germany, several courts considered the requirement for spouses to have
German
On
the
hand, thi
language skills before receiving the visa for family reunification to be incompatibleone
with
level,
and
on
the othe
Directive 2003/86/EC.
vice versa.
In Poland, the family reunification of a minor child was being refused because parents were
reunification
not providing the proof having regular and stable income. Whereas the nationalFamily
court agreed
policies
and modifica
with the administrative body regarding parent's lack of resources, it nevertheless considered
and
European
the possibility to grant the minor child a permit for a fixed period on the basis of three level a
(I). However, such a s
107
3
107
grounds: the continuation
of education, the short period of economic activity carried out by
GENERAL
INTRODUCTION
the minor's parents and the best interest of the child. In this context, the administrative
decision rejecting the application for family reunification was reversed.
Migration policies among EU member states have undergone major changes in recent decades,
These are,
to national
reports,
the only
cases where
judges have excluded the
which
haveaccording
had a significant
impact
on family
migration
rules national
and policies.
implementation of national rules or reversed administrative decisions due to incompatibility with
EU law.
Firstly,
the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
B. legally
Preliminary
before
the Court
to
enter rulings
EU member
states.
FiguresofinJustice
some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
National judges are able to introduce a preliminary ruling in order to have an "authentic"
interpretation
the of
Directive
from the European
of in
Justice.
Here at
again,
results
are
Meanwhile,
theofissue
family reunification
has beenCourt
gaining
importance
European
level.
very
limited.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
right to family life represented a first step. On the basis of Article 8 of the European Convention
ForHuman
the timerights,
being,
European
Courtand
of Justice
been states'
asked room
just once
to provide for
an
on
thethe
Court
has framed
limitedhas
member
for manoeuvre.
More
interpretation
of
the
Directive
in
the
Chakroun
case
law.
Given
the
need
to
clarify
some
precisely, the right to family life has been used as a strong and successful argument against
provisionsprocedures
of the Directive,
it is surprising
raised ininnational
proceedings
expulsion
in member
states. Itthat
hassome
also questions
been successful
cases regarding
the
never
ended
up
in
the
courtroom
of
the
European
Court
of
Justice.
admission of third country nationals.
Interestingly
someatquestions
raised
national
level
concerned
A
second majorenough,
step occurred
European level
afterat1999.
With the
entry
into force ofintegration
the Treaty
measures.
In
Germany,
the
question
on
whether
the
requirement
relating
to theissues.
language
of Amsterdam, the European Union (EU) gained competences in the field of migration
On
knowledge
imposed
to
spouses
is
compatible
with
EU
law
was
raised
in
a
federal
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
administrative
court. But for
theexercising
German court
didtonot
consider
it necessary
to ask
the European
determines
the conditions
the right
family
reunification
for third
country
nationals
Court
of
Justice
for
an
interpretation
in
this
regard.
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
In the–Netherlands,
a lower court
for aimpact
preliminary
ruling onrules
the compatibility
status
have been embedded
in EUrequested
rules, which
upon national
and practices.of the
integration test abroad with the provisions of the Directive. The case was referred to the national
Court and the
concerned
Afghan woman
reunification
rejected
because
However,
novelty an
introduced
by thewhose
Treatyfamily
of Amsterdam
goeswas
much
further
than she
the
was
not
able
to
take
the
test
due
to
her
illness
and
illiteracy.
The
case
was
very
sensitive
as she
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots
of
wasDirective
the mother
eight children
alreadyofjoined
theirInfather
in thethe
Netherlands.
Taking
the
areofclosely
linked towho
the had
integration
migrants.
this view,
Directive should
intoto
account
this situation,
the national
court
decided but
to request
a preliminary
regarding
not
be considered
as a tool
to manage
migration
rather as
a means ofruling
enhancing
the
45
But
before
the
interpretation
of
the
provision
dealing
with
integration
measures
in
the
Directive.
integration of migrants legally residing in their host society. Secondly, the European Court
of
the European
Court ofofJustice
had the
to give
an interpretation,
Dutchdimension:
government
Justice's
interpretation
the Directive
hastime
played
a strong
role in giving itthe
a crucial
it
decided
to derogate
from theofintegration
requirement
and to allow
reunification
to the
has
recognised
the existence
the right to
family reunification
and family
firmly delineated
member
Afghanmargins
woman.
a result of this individual derogation, the ECJ decided not to answer the
states'
of As
manoeuvre.
preliminary ruling anymore. It should nevertheless be outlined that the Commission considered
in an opinion
issued
the procedure
that taking
an integration
abroad 40
as ayears
condition
Family
migration
rulesduring
and policies
have been
constantly
modified test
for almost
now.
for
admission
is
not
in
compliance
with
the
Family
Reunification
Directive.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
These
are. the only situations referred to in national reports where the possibility to request a
vice
versa
preliminary ruling from the European Court of Justice was initiated.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I).
such2011,
a study
needs to be
delineated
and its methodology defined (III).
45. However,
See ECJ, 10 June
Bibi Mohammad
Imran,
C-155/11(II)
PPU.
3108
108
C. General comments on the lack of collaboration between national judges and
the ECJ
GENERAL
INTRO
The very limited role of national and European jurisprudence is a real pity for several reasons.
Migration policies am
Having regard to the case of the Afghan woman, it would have been the occasion
to have
finally
which
had a sig
have a proper interpretation of the provision related to the integration measures that member
states are allowed to establish. The scope of this provision and how it is implemented
continues
Firstly,
the 1970s oil c
to be discussed and debated in the Netherlands. The decision adopted by Dutch labour
authorities
to
migration
poli
grant family reunification to the Afghan mother is a sign in this regard. Indeed, there
are
good
to legally enter EU m
reasons to think that the European Court of Justice would have given an interpretation
that for t
migrants entered
would demonstrate that the Dutch mechanism is incompatible with EU law. By putting an end
to the proceeding, the Dutch authorities preserved their margins of manoeuvreMeanwhile,
for anotherthe issue
while. Since the authority to ask a question to the European Court of Justice remains
in theimpact o
The growing
hands of national judges, it is difficult to predict when this will happen.
right to family life rep
on Human rights, the
Secondly, the power awarded to national judges to decide whether they may
requestthea right to
precisely,
preliminary ruling from the European Court of Justice is an obstacle to the recognition
of rights
expulsion
procedure
for individuals in the field of migration. Having regard to Directive 2003/86/EC,
several
admission
of third co
provisions would need to receive an interpretation in order to assess the compatibility of national
rules.46 This has not yet happened however. An approximate knowledge of EU migration
A secondrules
major step o
and effects could be one explanation. Another may rely on the reluctance of national
judges to the Eu
of Amsterdam,
refer to the European Court of Justice in the field of migration. Either way, this is notthis
a satisfactory
basis, it adopted
situation because third country nationals' rights deserve to be guaranteed.
determines the condit
residing lawfully on t
Finally, it should be underlined that an alternative mechanism to overcome national
judges'
conditions
for exerci
inaction does not function either. Indeed, the European Commission has the powerstatus
to introduce
– have been em
any infringement proceedings when it considers that member states are not correctly
implementing EU law. In a report issued in October 2008 and related to the implementation
of novelt
However, the
Directive 2003/86/EC, the Commission identified a number of points where the compliance
of
'technical' adoption
o
were,
for
member states was not fully ensured.47 Dutch rules relating to integration measures
the Directive are clos
instance, highlighted as a potential problem. For the time being, the European Commission
not to be has
considered
not introduced any infringement procedure regarding this point or other ones. integration of migran
Justice's interpretation
The use of Directive 2003/86/EC appears very limited and to a certain extent disappointing.
has recognised the e
Neither national judges nor any other competent authorities such as the
European
states'
margins of ma
Commission are taking the lead to preserve the right to family reunification. This raises three
final comments.
Family migration rule
On the one hand, thi
level, and on the othe
vice versa.
46. In this regard see H. Labayle & Y. Pascouau, "Directive 2003/86/EC on the Right to Family Reunification",
.;
Family op.cit
reunification
K. Groenendijk, R. Fernhout, D. van Dam, R. van Oers & T. Strik, "The Family Reunification Directive in EU Member
policies
and
modifica
States. The First Year of Implementation", op. cit.
and
European
47. Report from the Commission to the European Parliament and the Council on the application of Directive 2003/86/EC level a
(I). However, such a s
on the Right to Family Reunification, COM(2008) 610 final, 08.10.2008.
109
3
109
Firstly, the reluctance
of national judges to refer to the European Court of Justice is worrying
GENERAL
INTRODUCTION
and raises questions on whether they are knowledgeable enough about the relevant EU law
and/or independent enough to challenge the national level.
Migration policies among EU member states have undergone major changes in recent decades,
Secondly,
of the
European
Commission
regard
to infringement procedures
which
havethe
hadinaction
a significant
impact
on family
migrationwith
rules
and policies.
highlights the very uncomfortable position of this institution. It has the power to introduce an
actionthe
against
or several
member
states but,
at the
samemember
time, it has
totocollaborate
with
Firstly,
1970sone
oil crisis
triggered
tremendous
change.
It drove
states
adopt restrictive
them in
order topolicies.
be ableAs
to aadopt
future Directives.
In other words,
it isone
veryofdifficult
forways
the
labour
migration
consequence,
family reunification
became
the main
Commission
to
have
the
support
of
a
member
state,
against
which
it
has
previously
introduced
to legally enter EU member states. Figures in some EU countries confirm that the majority of
infringement
proceedings.
Crucially,
this reunification.
highlights one of the limits of the EU's institutional
migrants
entered
for the purpose
of family
construction. Alternative solutions such as the possibility for an ad hoc body to launch
infringement
procedures
wherereunification
fundamental
rights
threatened
should beatdiscussed.
Meanwhile,
the
issue of family
has
beenare
gaining
in importance
European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
Finally,
the right
to family reunification
be preserved
improved.
This
may be
right
to family
life represented
a first step. Onmust
the basis
of Article and
8 of the
European
Convention
achieved
through
a
better
dissemination
of
information
regarding
the
scope
and
effect
of
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
Directive
2003/86/EC
at
national
level.
In
addition,
an
exchange
of
experience
and
practice
precisely, the right to family life has been used as a strong and successful argument against
between procedures
judges andinlawyers
in It
thishasregard
constitute
much-needed
action. The
expulsion
membermay
states.
also been
successful
in cases regarding
the
European
Commission
could
take
the
lead
in
this
regard
by
providing
training
sessions
admission of third country nationals.
within the member states and between national judges and/or lawyers. The European Court
Justicemajor
couldstep
be occurred
involved at
inEuropean
this project.
any1999.
case,With
the Europe-wide
that
Aofsecond
levelInafter
the entry into consultation
force of the Treaty
is
scheduled
to
take
place
at
the
end
of
2011
upon
the
publication
of
the
European
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Commission's
Green
Paper should
tackle
point.reunification. This Directive (2003/86/EC)
this
basis, it adopted
a Directive
on the
rightthis
to family
determines the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
Family migration rules and policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
3110
110
CONCLUSIONS AND RECOMMENDATIONS
GENERAL INTRO
The analysis presented in this study demonstrates that the field of family reunificationMigration
is constantly
policies am
moving. This phenomenon is rooted in national politics or/and European transformations.
which have had a sig
However, the report highlights one largely shared trend among the member states
surveyed:
Firstly,
the 1970s oil c
the tendency to adopt new rules regarding conditions for family reunification, labour
and inmigration
some
poli
countries, to make these conditions harder to fulfil. Minimum age, prior
residence,
to legally
enter EU m
accommodation conditions, income requirements and integration measures are
amongentered
the
migrants
for t
various requirements that member states may ask applicants for family reunification to fulfil.
Meanwhile, the issue
The recent development of such rules in several member states where these requirements
The growing impact o
were not previously requested is a sign that the trend is growing among all right
EU member
to family life rep
states. On the other hand, the progressive modification of specific conditions inonsome
states
Human
rights, the
is also a sign of the abovementioned phenomenon.
precisely, the right to
expulsion procedure
The trend highlighted by the report must nevertheless be nuanced. While more
states are
admission
of third co
adopting rules regarding conditions for family reunification, these rules are implemented
differently. Indeed, the rules are either more or less demanding of migrants, or impose
stricter
A second
major step o
or softer procedures and means of proof. Sweden, Portugal and Slovenia may at different
stages the Eu
of Amsterdam,
be considered as being among those states where conditions for family reunification
are less
this basis,
it adopted
strictly framed. On the other side of the spectrum stand France, the Netherlands, Germany
determinesand
the condit
recently Belgium, where conditions have clearly been made more difficult to fulfil.
residing lawfully on t
conditions for exerci
The difference between restrictive and flexible policies needs to be analysed in
light– of
thebeen em
status
have
goals pursued by member states. As the report has shown, in specific situations conditions
for family reunification may seek to make family migration harder or to helpHowever,
migrants the
to novelt
integrate better. Thus conditions for family reunification may act as a tool for
managing
'technical' adoption o
migration or as a tool for enhancing migrants' integration into society.
the Directive are clos
not to be considered
Current debates about migration in general and the results of the report mayintegration
lead to the
of migran
conclusion that the conditions for family reunification recently adopted by EU member
Justice'sstates
interpretation
seek to make the rules harder in order to limit family reunification. This has
statement
is the e
recognised
as of ma
reinforced by national discourse, such as 'immigration subie' in France, and actions,
states'such
margins
recent modifications of Belgian law. It is also fuelled by European developments such as the
European Pact on Immigration and Asylum.
Family migration rule
On the one hand, thi
However, the conclusions of this report allow for further thinking about the extent
which
level,toand
on the othe
rules regarding conditions for family reunification may in law and practice vice
improve
versa.the
integration of third country nationals. With regard to conditions highlighted in this study,
three categories may be outlined as they target three different goals.
Family reunification
policies and modifica
The first category concerns rules linked to the stability of the sponsor: a primary
andcondition
European level a
that member states are going for. For family reunification and further(I).integration
However, such a s
111
3
111
to be successful,
the sponsor should demonstrate that he/she has been living for a certain
GENERAL
INTRODUCTION
period of time in the member state concerned, has stable and regular resources, and
appropriate accommodation.
Migration policies among EU member states have undergone major changes in recent decades,
The second
category
deals with
theonissue
of migration
commitment.
the question relates to the
which
have had
a significant
impact
family
rules Here,
and policies.
existence of integration measures that family members are asked or invited to fulfil in order
to acquire
language
or civic
knowledge.
Bothchange.
of theseIt elements
are acknowledged
crucial
Firstly,
the 1970s
oil crisis
triggered
tremendous
drove member
states to adopt as
restrictive
for
integration.
Indeed,
mastering
basic
language
skills
and
acquiring
information
about
the
labour migration policies. As a consequence, family reunification became one of the main ways
functioning
of
the
state
and
its
administration
may
help
newcomers
to
make
their
mark
more
to legally enter EU member states. Figures in some EU countries confirm that the majority of
easily in entered
society.for the purpose of family reunification.
migrants
Finally, the the
third
category
of reunification
rules covershas
thebeen
issuegaining
of protecting
people.
comprises
Meanwhile,
issue
of family
in importance
at This
European
level.
two
different
elements.
On
the
one
hand,
family
members
should
be
prepared
for
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
reunification,
which
might
in
certain
cases
be
very
difficult.
This
could
be
achieved
through
right to family life represented a first step. On the basis of Article 8 of the European Convention
information
provided
to family
members
after
arrival
into
member More
state.
on
Human rights,
the Court
has framed
andbefore
limitedand/or
member
states'
room
forthe
manoeuvre.
On
the
other
hand,
rules
related
to
marriages
of
convenience
may
prevent
spouses
precisely, the right to family life has been used as a strong and successful argument against
from beingprocedures
mislead orinabused.
the latter
situation,
integration
may
be even
expulsion
memberInstates.
It has
also been
successful
in sometimes
cases regarding
the
more
difficult.
admission of third country nationals.
Insecond
the end,
rules
regarding
family
have
positive
A
major
step
occurredconditions
at Europeanfor
level
after reunification
1999. With themay
entry
intoaforce
of theimpact
Treaty
on
the
future
integration
of
family
members
into
their
host
society.
But
these
rules
should
of Amsterdam, the European Union (EU) gained competences in the field of migration issues.
On
be applied
thisaunderlying
principle
if This
the rules
are only
adopted
this
basis, it with
adopted
Directive on
the rightintomind.
familyConversely,
reunification.
Directive
(2003/86/EC)
for the sakethe
ofconditions
managingfor
migration
their
on integration
is likely
to be
worse.
determines
exercisingflows,
the right
to impact
family reunification
for third
country
nationals
Indeed,
either
family
members
are
not
awarded
the
right
to
family
reunification
or
residing lawfully on the territory of an EU member state. Since then, several rules related totheir
the
status – i.e.
right tothestay
is family
made reunification
conditional –upon
theasfulfilment
of a from
seriesthis
of
conditions
for the
exercising
right– to
as well
rights deriving
conditions.
Checks
on
marriages
of
convenience
are
an
interesting
issue
in
this
regard.
status – have been embedded in EU rules, which impact upon national rules and practices.
Rules applicable in the majority of member states are similar when it comes to investigating
marriages the
concluded
nationalsby
or third
country
canmuch
be interpreted
in two
However,
novelty by
introduced
the Treaty
of nationals.
AmsterdamThis
goes
further than
the
different
ways.
This
may
demonstrate,
on
the
one
hand,
that
marriages
of
nationals
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots or
of
foreigners
with
coming
third countries
reach the
same
level
suspicion.
On
the
Directive
arespouses
closely linked
to from
the integration
of migrants.
In this
view,
theofDirective
should
a more
note,asthe
similarity
of rules
may highlight
the as
same
level of
of enhancing
willingnessthe
to
not
to bepositive
considered
a tool
to manage
migration
but rather
a means
ensure
and
prepare
for
the
sound
integration
of
families
into
the
host
society.
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
Thisrecognised
leads us to
very root
of right
the problem:
what are family
reunification
andmember
family
has
thethe
existence
of the
to family reunification
and firmly
delineated
reunification
rules
designed
to
achieve?
Are
they
a
set
of
rules
aimed
at
promoting
the
social
states' margins of manoeuvre.
inclusion of migrants into the receiving society? In other words, allowing migrants to be
joined migration
by their family
is seen
a factor
of integration.
family40
reunification
Family
rules members
and policies
haveasbeen
constantly
modifiedOr,
for isalmost
years now.
a
set
of
rules
aimed
at
defining
who
is
entitled
to
join
the
sponsor?
In
this
view,
family
On the one hand, this is due to the modification of migration policies at national and
European
reunification
rules
should
be
considered
as
one
tool
among
others
to
manage
migration.
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
The European Commission viewed family unification at the beginning of 2000 as a tool for
integration,
but member
considered
rulestoinchanging
this regard
should constitute
a tool
Family
reunification
is a states
sensitive
issue thatthat
is EU
subject
landscapes.
Ever-evolving
in
their
hands
in
order
to
manage,
openly
or
restrictively,
family
migration.
Current
trends
policies and modifications have been very important in the last couple of years at both national
show
a tendency
the member
states
to use
their remaining
leeway
in order is
totimely
make
and
European
levelamong
and explain
why a new
study
on conditions
for family
reunification
family
migration
more
difficult.
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
3112
112
Two questions remain largely unanswered. Is this strengthening of national rules
regarding INTRO
GENERAL
conditions for family reunification compatible with EU law? Is this strengthening of national
rules regarding conditions for family unification desirable for family reunification purposes?
Migration policies am
As regards the first question, Directive 2003/86/EC does not prevent memberwhich
stateshave
from
had a sig
exercising their competence where it has left them often very significant leeway to adopt or
strengthen rules and conditions. However, this possibility is now framed by Firstly,
the Court
of oil c
the 1970s
Justice, which has drawn lines that may guide member states' actions.
labour migration poli
to legally enter EU m
On the one hand, member states are bound to respect the prescriptions they have
agreed
to for t
migrants
entered
include in Directive 2003/86/EC. These range from the recognition of a right to family
reunification, where all the conditions requested by national law are fulfilled, to the
respect ofthe issue
Meanwhile,
the best interest of the child and the interests of migrants when it comes toThe
taking
intoimpact o
growing
consideration links with and the length of stay in the member state. In this view, countries
have
right to family life rep
a clear obligation to proceed to individual examinations of all applications.
on Human rights, the
precisely, the right to
On the other hand, member states are now obliged to implement the provisions ofexpulsion
the Directive
procedure
in light of its objective to "promote family reunification". This gives birth toadmission
a new and
of third co
unprecedented landscape where member states are prevented, in an a contrario argument, from
adopting rules that do not promote family reunification. To put it differently, rules aimed
at making
A second
major step o
family reunification more difficult must be legitimate and proportionate to the objective
pursed. the Eu
of Amsterdam,
this basis, it adopted
Finally, if the issue is yet to be tackled by the Court of Justice, national rules should
respect the
determines
the condit
principle of non-discrimination particularly where conditions for family reunification
arelawfully
not on t
residing
imposed on foreigners coming from specific countries. This will surely constitute
the next
conditions
for exerci
element of interpretation that will frame member states' margins of manoeuvre. status – have been em
The second question, on whether this strengthening of national rules regarding conditions
However, for
the novelt
family reunification is desirable, must be put into perspective. More precisely,
it must adoption
be
'technical'
o
taken into account having regard to the migrants that EU member states will be the
in need
of
inare clos
Directive
the next couple of years. The demographic challenge facing EU member statesnot
calls
for considered
an
to be
appropriate evaluation of future needs in terms of migrants. It is obvious that migration
into
integration of migran
the EU will be part of the solution.
Justice's interpretation
has recognised the e
Hence, it is questionable whether the EU and its member states will be able
to margins
attract of ma
states'
migrants if the latter are not able – or encounter huge difficulties – to be joined by their
family members due to strict conditions. This concerns all types of migrants thatFamily
the EU
will
migration
rule
be in need of, i.e. low- as well as highly-skilled migrants. The picture of a 'defensive
Union'
On the one hand, thi
that EU countries are currently painting does not encourage foreign workers tolevel,
comeand
to on
thethe othe
EU. They will probably choose to settle in more 'migrant-friendly' countries. vice versa.
Finally, the issue of access to family reunification must not be tackled in isolation.
It is
Family reunification
accompanied by the question of rights. What rights are awarded to family members
once
policies and modifica
they reside in the host member state? This issue is equally important as the conditions
for level a
and European
family reunification, because it is a sign of the openness of EU society towards (I).
migrants
and
However, such a s
113
3
113
acts as a magnet
or a foil. Considering the importance of family reunification in terms of
GENERAL
INTRODUCTION
numbers, the answer to this point is more than relevant.
This studypolicies
highlights
that, EU
overmember
the paststates
few years,
a lot of policy
change
andindevelopment
has
Migration
among
have undergone
major
changes
recent decades,
been
taking
place
in
member
states
regarding
conditions
for
family
reunification.
These
which have had a significant impact on family migration rules and policies.
developments have been sometimes accompanied by heated national debates. It is in this context
that thethe
European
willtremendous
publish a Green
Paper
on the
right to
family
reunification
at
Firstly,
1970s oilCommission
crisis triggered
change.
It drove
member
states
to adopt
restrictive
the
end
of
2011.
This
document
will
initiate
a
large
scale
consultation
process
and
debate
on
labour migration policies. As a consequence, family reunification became one of the main ways
family
reunification,
which could
to eventual
to Directive
2003/86/EC.
In view of
of
to
legally
enter EU member
states.lead
Figures
in somechanges
EU countries
confirm
that the majority
this
consultation
process,
the
European
Policy
Centre
makes
the
following
recommendations:
migrants entered for the purpose of family reunification.
1. Future discussions
developments
takegaining
due account
of the at
jurisprudence
of
Meanwhile,
the issue ofand
family
reunificationshould
has been
in importance
European level.
the
European
Court
of
Justice
and
the
rights
enshrined
in
the
Charter
of
fundamental
rights
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
of the
right
toEuropean
family lifeUnion
represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
The right to
recognised
by as
Directive
and the
jurisprudence
precisely,
thefamily
right reunification
to family life ishas
been used
a strong2003/86/EC
and successful
argument
against
of
the
European
Court
of
Justice.
In
addition,
the
ECJ
has
clearly
stated
that
the
objectivethe
of
expulsion procedures in member states. It has also been successful in cases regarding
the
Directive
is
"to
promote
family
reunification".
Furthermore,
the
right
to
family
life
is
admission of third country nationals.
recognised by the Charter of fundamental rights of the EU, to which member states are
legally
bound
the entry
forcelevel
of the
Lisbon
Therefore,
Directive,
the
A
second
majorsince
step occurred
at into
European
after
1999.Treaty.
With the
entry intothe
force
of the Treaty
Charter
and
the
ECJ's
jurisprudence
constitute
the
frame
and
the
limits
by
which
member
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
states
must
abide when
implementing
policy
this reunification.
area.
this
basis,
it adopted
a Directive
on the right
to in
family
This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
2. Further
harmonisation
on conditions
for family
is needed
in order
to
residing
lawfully
on the territory
of an EU member
state. reunification
Since then, several
rules related
to the
enhance
convergence
among
member
states
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
Despite the existence of a Directive on the right to family reunification, national rules
regarding the
conditions
family reunification
diverge considerably
consultation
However,
novelty for
introduced
by the Treaty still
of Amsterdam
goes much The
further
than the
process
launched
by
the
European
Commission's
Green
Paper
will
allow
relevant
stakeholders
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
to discuss
further
harmonisation
of national
and
as transforming
the
Directive
are closely
linked to the
integration
of implementing
migrants. In thisrules,
view,such
the Directive
should
current
optional
provisions
into
mandatory
ones
and
providing
for
more
detailed
rules. the
not to be considered as a tool to manage migration but rather as a means of enhancing
integration of migrants legally residing in their host society. Secondly, the European Court of
3. Any interpretation
policy development
in thehas
field
of afamily
safeguard
the
Justice's
of the Directive
played
strong reunification
role in giving itshould
a crucial
dimension:
it
underlying
rationale
that
family
reunification
aims
at
promoting
integration
rather
than
has recognised the existence of the right to family reunification and firmly delineated member
managing
migration
flows
states'
margins
of manoeuvre.
Directive
2003/86/EC
recognises
reunification
is a necessary
of making
Family
migration
rules and
policiesthat
have"Family
been constantly
modified
for almostway
40 years
now.
family
life
possible.
It
helps
to
create
sociocultural
stability
facilitating
the
integration
of third
On the one hand, this is due to the modification of migration policies at national and European
country
in the
member
which
also serves
promote
economic
and
social
level,
andnationals
on the other,
to the
impactstate,
of family
reunification
on to
migration
flows
and most
probably
cohesion,
a
fundamental
Community
objective
stated
in
the
Treaty."
(Recital
4).
The
current
vice versa.
political context in many member states is centred on managing, and in many cases limiting,
the arrival
of new immigrants.
It should
however
be remembered
that family Ever-evolving
reunification
Family
reunification
is a sensitive
issue that
is subject
to changing landscapes.
helps
migrants
to
better
integrate
into
the
receiving
society,
as
is
stated
in
the
Directive.
Any
policies and modifications have been very important in the last couple of years at both national
attempt
to
divert
from
this
objective
and
use
family
reunification
rules
as
a
tool
to
manage
and European level and explain why a new study on conditions for family reunification is timely
migration,
limiting
family
reunification,
should
be avoided.
(I).
However,bysuch
a study
needs
to be delineated
(II) and
its methodology defined (III).
3114
114
EXECUTIVE SUMMARY
GENERAL INTRO
Over the past forty years, the issue of family reunification has gained in importanceMigration
at European
policies am
level. This began with the growing impact of the European Court of Human Rights
which and
haveits
had a sig
jurisprudence regarding the right to family life but the EU dimension was really solidified with
the adoption of Directive 2003/86/EC on the right to family reunification.
Firstly, the 1970s oil c
labour migration poli
While member states have long since transposed the directive, ever-evolving to
policies
legally and
enter EU m
modifications at both national and European level are redefining the whole migrants
landscape
of for t
entered
family reunification. At EU level, the entry into force of the Lisbon Treaty is one element and
the interpretation of the Directive by the European Court of Justice another. At national
level,the issue
Meanwhile,
the willingness to make family reunification rules more restrictive constitutes a The
trend
sharedimpact o
growing
by some member states. In this evolving landscape, it should be outlined right
that national
to family life rep
Pact on
policies fuel European policy and vice versa. The adoption of the European
on Human
rights, the
Immigration and Asylum by the heads of state and government in 2008 is an example
of this
precisely,
the right to
complex interrelationship.
expulsion procedure
admission of third co
In this context, a new study on conditions for family reunification is needed, and indeed timely,
in order to map current trends and shortcomings ahead of the European Commission's
A second major step o
consultation process on family reunification, scheduled to be launched with a Green
Paper at the Eu
of Amsterdam,
the end of 2011. This study focuses on nine member states, chosen to reflect,this
as basis,
muchitas
adopted
possible, different balances and trends: Belgium, France, Germany, the Netherlands,
Poland,
determines
the condit
Portugal, Slovenia, Spain and Sweden.
residing lawfully on t
conditions for exerci
Though they sometimes differ in their approaches to family reunification policy,status
nearly
all ofbeen em
– have
the countries surveyed have in recent times adopted new rules regarding conditions for
family reunification, be it for minimum age, prior residence, accommodationHowever,
conditions,
the novelt
income requirements or integration measures. France, the Netherlands, Germany
'technical'and
adoption o
recently Belgium are highlighted as member states where conditions have clearly
madeare clos
thebeen
Directive
more difficult to fulfil.
not to be considered
integration of migran
This study highlights that, over the past few years, a lot of policy change and Justice's
development
interpretation
has been taking place in member states regarding conditions for family reunification.
These the e
has recognised
developments have been sometimes accompanied by heated national debates. Considerable
states' margins of ma
attention is also given to the limits set by Directive 2003/86/EC and the ECJ's jurisprudence,
which frame the scope within which member states' actions are to take place. Family migration rule
On the one hand, thi
Taking account of these changes and looking ahead to the consultation process launched
by on
thethe othe
level, and
publication of the European Commission's Green Paper, which could lead to eventual
changes
vice versa
.
to Directive 2003/86/EC, the European Policy Centre makes the following recommendations:
Family reunification
1. Future discussions and developments should take due account of the jurisprudence
themodifica
policiesof
and
European Court of Justice and the rights enshrined in the Charter of fundamentaland
rights
of the level a
European
European Union.
(I). However, such a s
115
3
115
2. Further harmonisation
on conditions for family reunification is needed in order to enhance
GENERAL
INTRODUCTION
convergence among member states.
3. Any policy
in thestates
fieldhave
of family
reunification
should
safeguard
the
Migration
policiesdevelopment
among EU member
undergone
major changes
in recent
decades,
underlying
rationale
that
family
reunification
aims
at
promoting
integration
rather
than
which have had a significant impact on family migration rules and policies.
managing migration flows.
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
to legally enter EU member states. Figures in some EU countries confirm that the majority of
migrants entered for the purpose of family reunification.
Meanwhile, the issue of family reunification has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
right to family life represented a first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
expulsion procedures in member states. It has also been successful in cases regarding the
admission of third country nationals.
A second major step occurred at European level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
Family migration rules and policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
3116
116
TABLE OF CONTENTS
GENERAL INTRO
General introduction
3
Migration policies
am
which have had a sig
4
Firstly, the 1970s oil c
4
labour migration
poli
to legally enter EU m
4
migrants entered
for t
I. Changing landscapes
A. In EU member states
1. The transposition of the Directive
2. Restrictive national policies
Meanwhile,5the issue
The growing impact o
3. The bottom-up approach or the impact of national policies at EU level right to family
5 life rep
on Human rights, the
B. At EU level
6 right to
precisely, the
expulsion procedure
1. Changes introduced by the adoption of the Lisbon Treaty
6 third co
admission of
2. Impact of ECJ's jurisprudence
II. Defining the scope of the study
A. Personal scope
B. Member states covered
III. Methodology
CHAPTER 1 – GENERAL OVERVIEW
I. Moving context: family reunification under strain
A. At EU level
B. At national level
7
A second major
step o
of Amsterdam, the Eu
this basis, it9adopted
determines the condit
9
residing lawfully
on t
conditions for exerci
10 been em
status – have
However, 10
the novelt
'technical' adoption o
the Directive are clos
not to be 12
considered
integration of migran
12
Justice's interpretation
has recognised the e
12 of ma
states' margins
C. Current trends in member states surveyed
13
Family migration
rule
On the one hand, thi
level, and 14
on the othe
vice versa.
14
Family reunification
14 modifica
policies and
and European level a
16 such a s
(I). However,
117
3
II. Overview of modifications regarding conditions for family reunification
A. Conditions defined by Directive 2003/86/EC
B. State of play in 2007
117
CHAPTER 2 –INTRODUCTION
COMPARATIVE ANALYSIS REGARDING CONDITIONS
GENERAL
19
FOR FAMILY REUNIFICATION
SECTIONpolicies
1 – FAMILY
MEMBERS
19
Migration
among
EU member states have undergone major changes in recent decades,
which have had a significant impact on family migration rules and policies.
I. The spouse
19
Firstly, the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
A. Right
to reunification
fora the
spouse family reunification became one of the main ways
19
labour
migration
policies. As
consequence,
to legally enter EU member states. Figures in some EU countries confirm that the majority of
B. Condition
offor
minimum
ageof family reunification.
20
migrants
entered
the purpose
1. Minimum
age above
thereunification
age of majority
20
Meanwhile,
the issue
of family
has been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
equal to amajority
21
right2.toMinimum
family lifeage
represented
first step. On the basis of Article 8 of the European Convention
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
3. No specific
regarding
minimum
ageas a strong and successful argument against
22
precisely,
the rightrules
to family
life has
been used
expulsion procedures in member states. It has also been successful in cases regarding the
4. Comments
22
admission
of third country nationals.
C.second
Rules major
regarding
the validity
of the marriage
23
A
step occurred
at European
level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
Marriages
celebrated
in EU
states
24
this 1.
basis,
it adopted
a Directive
on member
the right to
family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
Documents
beforeofmarriage
residing
lawfully required
on the territory
an EU member state. Since then, several rules related to 24
the
conditions for exercising the right to family reunification – as well as rights deriving from this
Grounds
to prevent
the celebration
of marriages
status
– have been
embedded
in EU rules, which
impact upon national rules and practices. 25
Procedures
to prevent
the celebration
of marriages
However,
the novelty
introduced
by the Treaty
of Amsterdam goes much further than 26
the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
Marriages
celebrated
abroad
28
the 2.
Directive
are closely
linked
to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
Documents
to provide
forresiding
recognition
of ahost
marriage
integration
of migrants
legally
in their
society.concluded
Secondly, in
thea European Court28of
third
country
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
Procedures
to assess the validity and sincerity of the marriage
29
states'
margins ofdesigned
manoeuvre.
II. Unmarried
31
Family
migrationpartners
rules and policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
A. Member
states
nottoawarding
right to
family reunification
toflows and most probably
32
level,
and on the
other,
the impactthe
of family
reunification
on migration
unmarried
partners
vice versa.
B. Member
states where
unmarried
are entitled
to family
32
Family
reunification
is a sensitive
issuepartners
that is subject
to changing
landscapes. Ever-evolving
reunification
32
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
C. However,
Checkingsuch
the avalidity
of thetopartnership
34
(I).
study needs
be delineated (II) and its methodology defined (III).
3118
118
III. Children
36 INTRO
GENERAL
A. Minor children
36
B. Adult children
Migration policies am
37had a sig
which have
C. Proof of links between parents and children
1. General requirements
2. DNA testing
D. Reunification of minor children of a further spouse
1. No restrictions for reunification of minor children of a
further spouse
2. Reunification of minor children of a further spouse framed
by national rules
IV. Relatives in the direct ascending line
SECTION 2 – RESIDENCE AND PROCEDURAL ASPECTS
I. Prior residence requirements
A. Type of residence permit
B. Length of prior legal residence
II. Procedure
A. Application
1. Persons entitled to table applications for family reunification
2. Obligation for family members to reside outside the territory
3. Derogation from the obligation to reside outside the territory
B. Examination and decision
1. Framework established by Directive 2003/86/EC
2. Deadlines for examination in national legislation and regulations
119
Firstly, the 39
1970s oil c
labour migration poli
to legally 39
enter EU m
migrants entered for t
41
Meanwhile, the issue
43 impact o
The growing
right to family life rep
on Human43rights, the
precisely, the right to
expulsion procedure
admission44
of third co
A second major step o
45 the Eu
of Amsterdam,
this basis, it adopted
determines48the condit
residing lawfully on t
conditions48
for exerci
status – have been em
48
However, the novelt
'technical'51
adoption o
the Directive are clos
not to be 52
considered
integration of migran
52
Justice's interpretation
has recognised the e
52 of ma
states' margins
53
Family migration
rule
On the one hand, thi
level, and 54
on the othe
vice versa.
57
Family reunification
57 modifica
policies and
and European level a
57 such a s
(I). However,
3
119
3. Examination
rules vs. Two-year deadline before family joins sponsor
GENERAL
INTRODUCTION
Compatibility in law
60
60
Migration policies among EU member states have undergone major changes in recent decades,
Compatibility
in practice
61
which
have had a significant
impact on family migration rules and policies.
4. No
in timetremendous change. It drove member states to adopt restrictive
62
Firstly,
the decision
1970s oil issued
crisis triggered
labour migration policies. As a consequence, family reunification became one of the main ways
C. legally
Costs enter EU member states. Figures in some EU countries confirm that the majority64of
to
migrants entered for the purpose of family reunification.
SECTION 3 – MATERIAL CONDITIONS
66
Meanwhile, the issue of family reunification has been gaining in importance at European level.
I. Accommodation
The
growing impact ofconditions
the European Court of Human Rights and its jurisprudence regarding 67
the
right to family life represented a first step. On the basis of Article 8 of the European Convention
A. Human
Conditions
requested
the
member
67
on
rights,
the Courtin
has
framed
and states
limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
B. Proof of
accommodation
conditions
expulsion
procedures
in member
states. It has also been successful in cases regarding 70
the
admission of third country nationals.
C. Obligation to fulfil requirement before or after entry of family
72
A second major step occurred at European level after 1999. With the entry into force of the Treaty
D.Amsterdam,
Assessing the
of
the proof
European Union (EU) gained competences in the field of migration issues. 73
On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
E. Effects of
accommodation
condition
74
determines
thethe
conditions
for exercising
the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
II. Sickness
76
conditions
forinsurance
exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
III. Resources
76
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
A. Evaluation
of resource
conditions
'technical'
adoption
of common
rules. It proposes a 'new' reading of the issue. Firstly, the roots77of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
amount
of resources
required
not 1.
toNo
be specific
considered
as a tool
to manage
migration but rather as a means of enhancing 77
the
integration of migrants legally residing in their host society. Secondly, the European Court of
2. Defined
amount
to be
provided
78it
Justice's
interpretation
of of
theresources
Directive has
played
a strong role in giving it a crucial dimension:
has recognised the existence of the right to family reunification and firmly delineated member
B. Lack
of sufficient
resources and family reunification
81
states'
margins
of manoeuvre.
1. Boundaries
set by
thepolicies
European
Justice (Chakroun
case
law) 40 years now.
81
Family
migration rules
and
haveCourt
been of
constantly
modified for
almost
On the one hand, this is due to the modification of migration policies at national and European
2. and
Assessing
the compliance
ofofnational
rules
82
level,
on the other,
to the impact
family reunification
on migration flows and most probably
vice versa.
C. Recourse to social assistance and family reunification
84
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
1. Boundaries
set by the
European
of Justice
law)at both national
84
policies
and modifications
have
been veryCourt
important
in the(Chakroun
last couple case
of years
and European level and explain why a new study on conditions for family reunification is timely
2. Compliance
national
85
(I). However,
such aof
study
needsrules
to be delineated (II) and its methodology defined (III).
3120
120
D. National authorities' margins of manoeuvre in examining applications
86 INTRO
GENERAL
E. Persons or groups of persons exempted from the income requirement
86
IV. Integration measures
A. Background
B. Overview of member states implementing integration measures or
related mechanisms
Migration policies am
88had a sig
which have
Firstly, the 88
1970s oil c
labour migration poli
to legally 89
enter EU m
migrants entered for t
C. Integration measures adopted in France, Germany and the Netherlands Meanwhile,
89the issue
The growing impact o
1. France
89 life rep
right to family
on Human rights, the
2. The Netherlands
precisely, 90
the right to
expulsion procedure
3. Germany
admission91
of third co
D. Trends and comments regarding integration measures
V. Public order and public health
A. Public health
B. Public order
VI. Consequences for not meeting the conditions
A. Member state obligations in the examination of applications
B. Member state rules
C. The need to clarify the scope of obligations
SECTION 4 – IMPACT AND TRENDS IN THE MEMBER STATES
I. Administrative level
A. Impact on administrative action
B. Impact on the length of the procedure
92
A second major
step o
of Amsterdam, the Eu
this basis, 94
it adopted
determines the condit
94
residing lawfully
on t
conditions for exerci
95 been em
status – have
However, 96
the novelt
'technical' adoption o
97 are clos
the Directive
not to be considered
integration97of migran
Justice's interpretation
99 the e
has recognised
states' margins of ma
100
Family migration rule
100hand, thi
On the one
level, and on the othe
vice versa100
.
C. Impact on controls among applications
102
Family reunification
policies and modifica
102 level a
and European
(I). However, such a s
121
3
121
II. Number of
applications
GENERAL
INTRODUCTION
103
A. General trends
104
Migration policies among EU member states have undergone major changes in recent decades,
B. Reasons
for amodifications
in trends
105
which
have had
significant impact
on family migration rules and policies.
III. Jurisprudence
107
Firstly,
the 1970s oil crisis triggered tremendous change. It drove member states to adopt restrictive
labour migration policies. As a consequence, family reunification became one of the main ways
A. legally
Application
of Directive
2003/86/EC
rules or
107of
to
enter EU
member states.
Figuresagainst
in somenational
EU countries
confirm that the majority
administrative
decisions
migrants entered for the purpose of family reunification.
B. Preliminary
rulings
the Court ofhas
Justice
108
Meanwhile,
the issue
of before
family reunification
been gaining in importance at European level.
The growing impact of the European Court of Human Rights and its jurisprudence regarding the
C. General
on thea lack
of collaboration
109
right
to familycomments
life represented
first step.
On the basis between
of Article 8national
of the European Convention
judges
and
the
ECJ
on Human rights, the Court has framed and limited member states' room for manoeuvre. More
precisely, the right to family life has been used as a strong and successful argument against
Conclusions
and recommendations
expulsion
procedures
in member states. It has also been successful in cases regarding111
the
admission of third country nationals.
Executive summary
115
A second major step occurred at European level after 1999. With the entry into force of the Treaty
of Amsterdam, the European Union (EU) gained competences in the field of migration issues. On
this basis, it adopted a Directive on the right to family reunification. This Directive (2003/86/EC)
determines the conditions for exercising the right to family reunification for third country nationals
residing lawfully on the territory of an EU member state. Since then, several rules related to the
conditions for exercising the right to family reunification – as well as rights deriving from this
status – have been embedded in EU rules, which impact upon national rules and practices.
However, the novelty introduced by the Treaty of Amsterdam goes much further than the
'technical' adoption of common rules. It proposes a 'new' reading of the issue. Firstly, the roots of
the Directive are closely linked to the integration of migrants. In this view, the Directive should
not to be considered as a tool to manage migration but rather as a means of enhancing the
integration of migrants legally residing in their host society. Secondly, the European Court of
Justice's interpretation of the Directive has played a strong role in giving it a crucial dimension: it
has recognised the existence of the right to family reunification and firmly delineated member
states' margins of manoeuvre.
Family migration rules and policies have been constantly modified for almost 40 years now.
On the one hand, this is due to the modification of migration policies at national and European
level, and on the other, to the impact of family reunification on migration flows and most probably
vice versa.
Family reunification is a sensitive issue that is subject to changing landscapes. Ever-evolving
policies and modifications have been very important in the last couple of years at both national
and European level and explain why a new study on conditions for family reunification is timely
(I). However, such a study needs to be delineated (II) and its methodology defined (III).
3122
122
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