The Effectiveness Of The Correct To Menage Unit Of Measurement Reunion Of Refugees: An Analysis Of The K. & B. Ruling Of The Cjeu

Mark Klaassen, Assistant professor at the Institute of Immigration Law at Leiden University

Introduction

For virtually European Union Member United States of America (the UK, Republic of Ireland as well as Kingdom of Denmark lead keep opted out), theatre unit of measurement reunion betwixt non-EU citizens residing on their territory as well as their non-EU citizen theatre unit of measurement members living abroad is governed yesteryear Directive 2003/86. This Directive includes a to a greater extent than favourable regime for refugees seeking theatre unit of measurement reunion, which Member United States of America may trammel to theatre unit of measurement relationships which predate entry to the Member State. These exceptions include the waiver of a number of weather for theatre unit of measurement reunion: the optional derogation for those over 12; the weather relating to accommodation, sickness insurance as well as “stable as well as regular resources”; as well as the waiting period. The rules on prove of theatre unit of measurement relationships are too relaxed, inward the lawsuit that documentary prove is unavailable. Finally, the optional “integration measures” requirement tin solely live applied afterwards theatre unit of measurement reunion, whether the theatre unit of measurement human relationship existed earlier entry or not. 

However, Member United States of America may trammel the application of this to a greater extent than favourable regime equally regards the waiver of the weather relating to accommodation, sickness insurance as well as stable as well as regular resources if the sponsor or theatre unit of measurement members lead keep “special links” amongst a non-EU province where theatre unit of measurement reunion is possible, or if the application for theatre unit of measurement reunification was lodged inside a current of 3 months afterwards refugee status has been granted. This latter competence is lay downwardly inward the lastly sub-paragraph of Article 12(1) of the Directive.

But how must the Member United States of America bargain amongst applications for theatre unit of measurement reunification yesteryear beneficiaries of international protection which are lodged afterwards this 3 months period? This is essentially the query inward Case C-380/17 K. & B., that was submitted to the Court of Justice of the European Union (the Court) for a preliminary ruling yesteryear the Council of State – the Dutch courtroom of highest instance inward immigration matters.

In this weblog I volition outset sketch the implementation of Article 12(1) of the Directive inward the Netherlands. Then I volition hash out the cases that lead keep led to the preliminary reference. After that I volition summarise the ruling of the Court. Finally I volition hash out the implications of the ruling for the theatre unit of measurement reunification of refugees. Note that the judgment too confirmed the Court’s jurisdiction to translate the Directive for the theatre unit of measurement reunion of persons amongst subsidiary protection inward the Netherlands, fifty-fifty though they are excluded from the range of the Directive, because the Netherlands has chosen to apply the Directive to them inward the same way equally refugees. I volition non elaborate on the jurisdiction number further.

Family reunification of refugees inward the Netherlands

In the Netherlands at that topographic point is a one-status system, pregnant that no distinction is made betwixt refugee status as well as subsidiary protection status. This has implications for the implementation of the Directive. Beneficiaries of subsidiary protection are excluded from the Directive. However, equally no distinction betwixt refugees as well as beneficiaries of subsidiary protection is made inward Dutch asylum law, all beneficiaries of international protection are eligible for theatre unit of measurement reunification pursuant to the implementation of the Directive. From the 2nd that international protection is granted, the sponsor has 3 months to brand the application for theatre unit of measurement reunification of theatre unit of measurement members that were left behind inward the province of origin. In instance the application is made inside this 3 calendar month period, no noun requirements for theatre unit of measurement reunification are imposed, equally is required yesteryear Article 12(1) Directive. Also, no administrative fee is charged for making the application.

When the application is made afterwards the 3 months current has passed, the application is rejected. Only inward really particular circumstances is an application lodged exterior of the 3 months current accepted – fifty-fifty though at that topographic point is no legal footing for that inward Dutch law. In making the determination whether such special circumstances apply, the Dutch government neither convey the best interests of the kid (Article 5(5) Directive) nor the specific private circumstances of the instance (Article 17 Directive) into account. H5N1 sponsor amongst international protection status is eligible to submit a “regular” application for theatre unit of measurement reunification exterior the 3 calendar month period. In regular applications, the noun requirements – which are based on Article 7(1) of the Directive – are fully applicable.

The applicants inward K. as well as B.

Applicant K. is the Afghan woman nurture of an unaccompanied pocket-size inward the Netherlands. The pocket-size sponsor has been granted international protection inward the Netherlands on fourteen Feb 2012. As an unaccompanied minor, the legal guardian was assigned to the sponsor. The sponsor applied to live reunited amongst his woman nurture on 27 Nov 2013. From the monastic say of reference, it appears that his legal guardian did non inform the applicant of the possibility to apply for theatre unit of measurement reunion. The application was rejected because it was non made inside the 3 calendar month current afterwards existence granted international protection.

An appeal was lodged amongst the District Court of Zwolle, which ruled inward favour of the applicant. Referring to the best interests of the kid equally lay downwardly inward Article 3(1) of the United Nations Convention on the Rights of the Child as well as the instance police of the European Court of Human Rights on Article 8 ECHR (the correct to private as well as theatre unit of measurement life), the District Court held that the Secretary was fountain to brand an private assessment of the competing interests involved inward the case. The Secretary appealed the determination of the District Court to the Council of State, which is the referring courtroom inward this case. In the monastic say of reference to the Court, the Council of State blames the sponsor – who was 15 years quondam on the 2nd the application was lodged – for non informing himself of the 3 months’ current inward which the application for theatre unit of measurement reunification must live made. The Council of State deems that it was reasonable to attribute the lack of information provided yesteryear the legal guardian to the pocket-size sponsor.

Applicant B. is the babe immature lady of an Eritrean national who was granted international protection inward the Netherlands on 23 September 2014. The sponsor applied to live reunited amongst his married adult woman as well as babe immature lady on 22 Jan 2015. The application was lodged i calendar month afterwards the 3 calendar month current had elapsed. The applicant appealed the rejection of his application to the District Court of Amsterdam. His appeal was rejected on 24 June 2016, upon which he lodged a subsequent appeal to the Council of State. The argue for the belatedly submission of the application was a misunderstanding betwixt the sponsor as well as the Dutch Refugee Council, which has a formalised purpose inward assisting beneficiaries of international protection inward making an application for theatre unit of measurement reunification. He misinterpreted a conversation amongst the Dutch Refugee Council. In the monastic say for reference to the Court, the Council of State attributes the misunderstanding to the applicant.

These 2 cases are no exceptions. In 2014 the Advisory Committee on Migrations Affairs – an independent Committee that advises the Dutch Government as well as Parliament on immigration police as well as policy – here), the Court held that an unaccompanied pocket-size who is considered a pocket-size on the 2nd that he lodged the application for international protection has the correct to theatre unit of measurement reunification amongst theatre unit of measurement members that were left behind inward the province of origin. Essentially that instance too considered the procedural autonomy of the Member United States of America to regulate where the Directive does non render for procedural rules. The Court held that to brand the correct to theatre unit of measurement reunification dependent on the 2nd on which the domestic government grant international protection would telephone phone the effectiveness of the protection provided for yesteryear the Directive into query (A. & S., para 55).

It is too inward draw amongst the interpretation of the Court amongst other provisions of the Directive. In Chakroun, the Court held that the competence of the Member State to involve the sponsor to demonstrate stable, regular as well as sufficient resources may non live used inward a trend which would undermine the effectiveness of the correct to theatre unit of measurement reunification (Chakroun, para. 43). The Court confirmed this seat inward O., S. & L., inward which the Court strongly emphasised the purpose of telephone commutation rights inward determining the competence of the fellow member states inward imposing the requirement of stable, regular as well as sufficient resources (O., S. & L., para. 80). In that case, the Court held that “[i]t is for the competent national authorities, when implementing Directive 2003/86 as well as examining applications for theatre unit of measurement reunification, to brand a balanced as well as reasonable assessment of all the interests inward play, taking detail draw organisation human relationship of the interests of the children concerned. (para. 81)”  

The K. & B. judgment has demonstrated that fifty-fifty when an application was made exterior the 3 calendar month current lay downwardly inward Article 12(1) Directive, the effectiveness of the correct to theatre unit of measurement reunification of a soul amongst international protection may non live undermined yesteryear the application of the weather of Article 7(1) Directive. This conclusion mightiness audio obvious, but even as well as thence has far-reaching implications.

To what extent tin it live expected from the applicants inward this instance to comply amongst the stable as well as regular sufficient resources requirement? In monastic say to respond this question, it is interesting to convey a facial expression at the drafting history of the Directive. In the initial proposal of the European Commission, refugees were e'er exempted from the noun conditions, equally “[r]efugees as well as persons enjoying subsidiary protection, given the overriding reasons why they lead keep had to flee their province of beginning as well as cannot Pb a normal theatre unit of measurement life, cannot live subjected to the same additional weather without their correct Pb a theatre unit of measurement life existence imperilled” COM/1999/638 final. Even though the EU’s qualification Directive gives them a correct to seek employment, beneficiaries of international protection start amongst an enormous backlog on the labour market, as well as thence requiring them to comply amongst the requirement of stable as well as regular sufficient resources could undermine the effectiveness of the correct to theatre unit of measurement reunification. In this context, the reasoning of the Court inward O., S. & L. that “a balanced as well as reasonable assessment of all the interests inward play” must live conducted, is of utmost importance.

It must live noted that this assessment is dissimilar from the balancing of interests nether the ECtHR instance police on Article 8 ECHR, equally the Directive grants a subjective correct to theatre unit of measurement reunification. The query which must live assessed it whether imposing the stable as well as regular sufficient resources requirement would undermine the effectiveness of the Directive. The query is non (as nether the ECtHR instance law) whether a fair relaxation has been struck betwixt the private involvement as well as the interests of the province to command immigration.

Lastly, equally noted above, Article 12(1) allows the Member United States of America to impose the weather of Article 7(1) inward instance an application is lodged afterwards the 3 calendar month current has elapsed. This does non include the requirement to comply amongst integration measures from Article 7(2) Directive. This agency that refugees tin never live subjected to the requirement to overstep a pre-entry integration examination inward the province of origin, too inward cases inward which the application is lodged exterior the 3 calendar month period.

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo credit: AP/Boris Grdanoski

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