Friday, 4 April 2014
Family Reunion for Third-Country Nationals: Comments on the Commission’s new guidance
Family life is a key part of the day-to-day lives of all residents of the EU (whether they are EU citizens or not). For non-EU citizens (third-country nationals), the issue is regulated by the EU Directive on family reunion for third-country nationals, which was adopted back in 2003. The Commission’s new guidance on this Directive raises new prospects for its effective enforcement and correct interpretation. While the guidance addresses a number of issues well, it could still be improved or clarified on a number of points.
In 2008, the Commission issued a report on the application of the Directive, which indicated that Member States had breached the Directive in dozens of ways. However, it did not bring any infringement actions against Member States. In 2011, it issued a Green Paper on possible reform of the Directive, but ultimately decided against proposing any amendments, seemingly due to fear that if any proposal were made, Member States would ultimately insist on dropping the degree of protection for family reunion, rather than raising it. So instead, the Commission has issued this guidance document – only 11 years after the Directive was initially adopted.
It should be noted that the Directive applies to 25 Member States, ie not the UK, Ireland or Denmark, which exercised their opt-outs.
The Commission quite rightly relies upon the prior CJEU judgments relating to the Directive. In EP v Council, the Court upheld some provisions of the Directive which the European Parliament challenged for breach of human rights. However, the Court made clear that the exceptions in the Directive could not be applied automatically, but on a case-by-case basis. In Chakroun, the CJEU stated that the conditions and exceptions in the Directive had to be interpreted narrowly, so as not to frustrate the main purpose of facilitating family reunion. The concepts in the Directive that made no reference to national law had to be interpreted uniformly; the Directive had to be interpreted in accordance with human rights (the right to family life, in the ECHR and the EU Charter of Fundamental Rights); and Member States could not use their discretion to undercut the objectives of the Directive.
Several issues arise as regards the personal scope of the Directive. First of all, it does not apply to EU citizens who seek family reunion with their third-country national family members, as confirmed by the CJEU in Dereci. However, the CJEU also made clear in the 2012 S and O judgment that in the case of ‘mixed nationality’ families, ie where a parent is a third-country national and a child is an EU citizen, the parent can rely upon the Directive. But it is also possible that the sponsor is a dual citizen of both the EU and a third State, and the Commission does not expressly comment on what happens in that case. It should be noted that the CJEU has ruled, in the Kahveci case, that the EU/Turkey rules on Turkish workers’ family members still apply to dual citizens of Turkey and a Member State. So it is arguable that, by analogy, the same rule applies to the family reunion Directive. The issue is only relevant, of course, as regards dual EU/third-country citizens who live in their own Member State, because EU citizens who move to other Member States can rely upon the more generous family reunion rules in the EU’s citizens’ Directive. Those EU citizens who live in their own Member State can rely on EU family reunion rules only if they have moved to other Member States and returned, or exercise some activity, in another Member State, as recently clarified by the CJEU.
Another important question is how to interpret the rule that the sponsor must have a ‘reasonable prospect’ of permanent residence. The Commission lays great stress on national discretion here. While it makes some good points about the limits to that discretion, the better argument is that this is a uniform concept of EU law (in the absence of any reference to national law). Furthermore, the guidance should have mentioned the possibility that other EU laws could be relevant to determining whether such a prospect exists, in particular the EU/Turkey association rules and EU legislation on long-term residents, refugee qualification, researchers and highly-skilled migrants.
The Commission makes a good case that the concept of dependency, which is crucial where a child is not the joint child of the sponsor and his or her spouse, should be determined by analogy with the EU citizens’ Directive. However, it does not mention Reyes, the most recent judgment on this issue, which established the important points that the reasons for the support of a family member do not matter (the existence of remittances is enough to show that dependence exists), and that the possibility of the family member getting a job in the host State are irrelevant.
As for the possibility of requiring the spouse to be a minimum age before admission (no older than 21), the Commission makes the sound point that this rule must be applied on a case-by-case basis, for instance exempting spouses from this requirement if there is no doubt that there is no forced marriage. It also rightly argues that it is sufficient that the spouse meets the age requirement at the time of admission, not the time of the application. The latter issue will be decided by the CJEU in the pending case of Noorzia.
Conditions for admission
The Commission states that Member States have wide leeway to accept in-country admissions from family members in certain cases. In fact, since the entire Directive sets minimum standards (Article 3(5)), Member States should be free to accept in-country applications in all cases.
As for fees to be charged for family reunion applications, the new guidance makes some good points on the limits imposed by the principle of proportionality, in accordance with CJEU case law on the long-term residence Directive.
While the Commission argues implicitly that the ‘public health’ requirement in the Directive can be interpreted by analogy with the citizens’ Directive, it states that the public policy and public security rules in the latter directive are only relevant by way of background. Arguably the latter rules also apply by analogy, since the drafters of the family reunion directive chose to use the same terms as those in the citizens’ Directive.
The Commission makes some good points about the accommodation requirement. In particular, it should be sufficient that the sponsor will be able to satisfy that requirement at the time of admission of family members, not at the time of application. It would be disproportionate for a person who is de facto single to have to rent or buy family accommodation for months or even two years before his or her family members are admitted.
This brings us to the integration requirement. The permissibility of a language requirement has been raised in the pending case of Dogan, although that case also raises the interesting question of whether the standstill clause in the EU/Turkey association precludes the application of a new requirement of this nature. More broadly, the Commission makes a strong argument that any integration requirement must be proportionate and applied on a case-by-case basis, taking account of individual circumstances and the limited access of females to education in some developing countries. There is a very recent case referred to the CJEU (for details, see the annex below; many thanks to Jeremy Bierbach for this information) that will clarify this point.
Next, the Commission rightly states that the waiting period of up to two years must include any ‘legal stay’ of the sponsor even before the sponsor met the conditions for family reunion under the Directive. It also suggests some sound guidance relating to continuity of residence.
The Commission’s discussion regarding the special rules for refugees gives the unfortunate impression that all of these rules can be disapplied if the refugee had ‘special links’ with a third State, or did not apply within three months. In fact, only the special rules relating to waiving the conditions in Article 7 are subject to these possible waivers.
However, the Commission does make good points about the high threshold needed to show that a refugee had ‘special links’ with a third State, and the burden of proof which falls on a Member State which wishes to apply this rule. It also rightly states that Member States which require the family member to make an application for family reunion should take account of the particular issues relating to refugees.
Finally, the Commission makes the sound points that in light of Article 47 of the EU Charter, legal challenges to family reunion decisions must apply to all decisions made pursuant to the Directive, must permit access to a court, and must consider all issues of fact and law, including a review of the merits of decisions.
The Commission’s guidance is largely welcome, subject to the criticisms made above. But it is also rather overdue. One can only hope that it proves useful to national courts and administrations, and that the Commission does not hesitate to bring infringement actions to back up its convictions about the correct interpretation of these key rules facilitating the right to family life of third-country nationals.
Barnard & Peers: Chapter 26
Annex – new pending case on integration measures: translation and notes by Jeremy Bierbach
Preliminary reference from the Council of State of 1 April 2013, cases 201211916/1/V2 and 201300404/1/V2, K. and A. vs. Minister van Buitenlandse Zaken:
1.a Can the term 'integration conditions' - contained in Art. 7(2) of Directive 2003/86/EC of the Council of the European Union of 22 December 2003 concerning the right to family reunification (PB 2003 L 251, with rectification in PB 2012 L 71) - be interpreted in such a way that the competent national authorities of the member states can require of the family member of a third-country national [Dutch: lit. "family unifier"] that the family member shows that he or she possesses knowledge of the official language of the member state at a level corresponding to level A1 of the Common European Framework of Reference for languages, as well as knowledge at a basic level of the society of the member state, before these authorities grant this family member permission for entry and residence?
1.b For the answer to this question, is it of importance that, i.a. in the context of the proportionality test as described in the European Commission's Green Paper of 15 November 2011 concerning the right to family reunification, according to national regulations imposing the condition mentioned in 1.a, the application for permission for entry and residence, barring the circumstance that the family member has demonstrated that he or she is durably incapable of taking the integration exam due to a psychological or physical disability, will only not be rejected if a combination of very special individual circumstances are present that justify the assumption that the family member is durably incapable of satisfying the integration conditions?
2. Does the goal of Directive 2003/86/EC, and in particular Art. 7(2) of it, preclude that the examination to test whether the family member satisfies the aforementioned integration conditions costs €350 for every time that the examination is taken, and that the one-time cost of the study materials to prepare for the examination is €110?
The basic details of the case: K. is a national of Azerbaijan who applied for a preliminary visa at the Dutch embassy in Ankara for the purpose of applying for a residence permit for stay with her husband (nationality not provided). She submitted a medical statement that she suffers from diabetes, hypertension, coronary disease, hypercholesteremia and morbid obesity, which makes her, in her claim, incapable of taking the Dutch consular integration exam. A. is a national of Nigeria who applied for the same type of preliminary visa at the Dutch embassy in Abuja. She submitted medical documents showing that she suffers from a psychological disorder for which she has to take medication. In both cases, the Deputy Minister of Justice (the political head of the Dutch immigration authority IND, which takes decisions on visas on behalf of the Minister of Foreign Affairs, the formal defendant in this case) denied that the disabilities demonstrated were sufficient to warrant exemption from the consular integration exam. Moreover, the Deputy Minister went on: the consular integration exam does not violate the Directive.