Family Reunion For Third-Country Nationals: Comments On The Commission’S Novel Guidance

Steve Peers

Family life is a fundamental purpose of the day-to-day lives of all residents of the European Union (whether they are European Union citizens or not). For non-EU citizens (third-country nationals), the number is regulated past times the EU Directive on identify unit of measurement reunion for third-country nationals, which was adopted dorsum inward 2003. The Commission’s new guidance on this Directive raises novel prospects for its effective enforcement together with right interpretation. While the guidance addresses a number of issues well, it could yet endure improved or clarified on a number of points.

 Background

In 2008, the Commission issued a report on the application of the Directive, which indicated that Member US had breached the Directive inward dozens of ways. However, it did non convey whatever infringement actions against Member States. In 2011, it issued a Green Paper on possible reform of the Directive, but ultimately decided against proposing whatever amendments, seemingly due to fearfulness that if whatever proposal were made, Member US would ultimately insist on dropping the grade of protection for identify unit of measurement reunion, rather than raising it. So instead, the Commission has issued this guidance document – exclusively eleven years afterward the Directive was initially adopted.

It should endure noted that the Directive applies to 25 Member States, ie non the UK, Republic of Ireland or Denmark, which exercised their opt-outs.

General points

The Commission quite rightly relies upon the prior CJEU judgments relating to the Directive. In EP v Council, the Court upheld closed to provisions of the Directive which the European Parliament challenged for breach of human rights. However, the Court made clear that the exceptions inward the Directive could non endure applied automatically, but on a case-by-case basis. In Chakroun, the CJEU stated that the weather condition together with exceptions inward the Directive had to endure interpreted narrowly, together with then every bit non to frustrate the psyche purpose of facilitating identify unit of measurement reunion. The concepts inward the Directive that made no reference to national police had to endure interpreted uniformly; the Directive had to endure interpreted inward accordance alongside human rights (the right to identify unit of measurement life, inward the ECHR together with the European Union Charter of Fundamental Rights); together with Member US could non usage their discretion to undercut the objectives of the Directive.

Personal scope

Several issues arise every bit regards the personal compass of the Directive. First of all, it does non apply to European Union citizens who seek identify unit of measurement reunion alongside their third-country national identify unit of measurement members, every bit confirmed past times the CJEU inward Dereci. However, the CJEU likewise made clear inward the 2012 S together with O judgment that inward the instance of ‘mixed nationality’ families, ie where a parent is a third-country national together with a fry is an European Union citizen, the parent tin sack rely upon the Directive. But it is likewise possible that the sponsor is a dual citizen of both the European Union together with a tertiary State, together with the Commission does non expressly comment on what happens inward that case. It should endure noted that the CJEU has ruled, inward the Kahveci case, that the EU/Turkey rules on Turkish workers’ identify unit of measurement members yet apply to dual citizens of Turkey together with a Member State. So it is arguable that, past times analogy, the same dominion applies to the identify unit of measurement reunion Directive. The number is exclusively relevant, of course, every bit regards dual EU/third-country citizens who alive inward their ain Member State, because European Union citizens who motility to other Member US tin sack rely upon the to a greater extent than generous identify unit of measurement reunion rules inward the EU’s recently clarified past times the CJEU.

Another of import query is how to translate the dominion that the sponsor must conduct maintain a ‘reasonable prospect’ of permanent residence. The Commission lays slap-up stress on national discretion here. While it makes closed to adept points close the limits to that discretion, the meliorate declaration is that this is a uniform concept of European Union police (in the absence of whatever reference to national law). Furthermore, the guidance should conduct maintain mentioned the possibility that other European Union laws could endure relevant to determining whether such a prospect exists, inward exceptional the EU/Turkey association rules together with European Union legislation on long-term residents, refugee qualification, researchers together with highly-skilled migrants.

Family members

 The Commission makes a adept instance that the concept of dependency, which is crucial where a fry is non the articulation fry of the sponsor together with his or her spouse, should endure determined past times analogy alongside the European Union citizens’ Directive. However, it does non bring upwards Reyes, the most recent judgment on this issue, which established the of import points that the reasons for the back upwards of a identify unit of measurement fellow member do non affair (the being of remittances is plenty to present that dependence exists), together with that the possibility of the identify unit of measurement fellow member getting a project inward the host State are irrelevant.

As for the possibility of requiring the husband to endure a minimum historic current earlier admission (no older than 21), the Commission makes the audio dot that this dominion must endure applied on a case-by-case basis, for instance exempting spouses from this requirement if at that topographic point is no uncertainty that at that topographic point is no forced marriage. It likewise rightly argues that it is sufficient that the husband meets the historic current requirement at the fourth dimension of admission, non the fourth dimension of the application. The latter number volition endure decided past times the CJEU inward the pending instance of Noorzia.

 Conditions for admission

The Commission states that Member US conduct maintain broad leeway to select in-country admissions from identify unit of measurement members inward certainly cases. In fact, since the entire Directive sets minimum standards (Article 3(5)), Member US should endure gratis to select in-country applications inward all cases.

As for fees to endure charged for identify unit of measurement reunion applications, the novel guidance makes closed to adept points on the limits imposed past times the regulation of proportionality, inward accordance alongside CJEU instance police on the long-term residence Directive.

While the Commission argues implicitly that the ‘public health’ requirement inward the Directive tin sack endure interpreted past times analogy alongside the citizens’ Directive, it states that the populace policy together with populace safety rules inward the latter directive are exclusively relevant past times means of background. Arguably the latter rules likewise apply past times analogy, since the drafters of the identify unit of measurement reunion directive chose to usage the same terms every bit those inward the citizens’ Directive.

The Commission makes closed to adept points close the accommodation requirement. In particular, it should endure sufficient that the sponsor volition endure able to satisfy that requirement at the fourth dimension of admission of identify unit of measurement members, non at the fourth dimension of application. It would endure disproportionate for a somebody who is de facto unmarried to conduct maintain to rent or purchase identify unit of measurement accommodation for months or fifty-fifty 2 years earlier his or her identify unit of measurement members are admitted.

This brings us to the integration requirement. The permissibility of a linguistic communication requirement has been raised inward the pending instance of Dogan, although that instance likewise raises the interesting query of whether the standstill clause inward the EU/Turkey association precludes the application of a novel requirement of this nature. More broadly, the Commission makes a rigid declaration that whatever integration requirement must endure proportionate together with applied on a case-by-case basis, taking concern human relationship of private circumstances together with the limited access of females to pedagogy inward closed to developing countries. There is a real recent instance referred to the CJEU (for details, consider the annex below; many thank you lot to Jeremy Bierbach for this information) that volition clarify this point.

Next, the Commission rightly states that the waiting current of upwards to 2 years must include whatever ‘legal stay’ of the sponsor fifty-fifty earlier the sponsor met the weather condition for identify unit of measurement reunion nether the Directive. It likewise suggests closed to audio guidance relating to continuity of residence.

Refugees

The Commission’s give-and-take regarding the special rules for refugees gives the unfortunate impression that all of these rules tin sack endure disapplied if the refugee had ‘special links’ alongside a tertiary State, or did non apply inside iii months. In fact, exclusively the special rules relating to waiving the weather condition inward Article vii are champaign of study to these possible waivers.

However, the Commission does brand adept points close the high threshold needed to present that a refugee had ‘special links’ alongside a tertiary State, together with the burden of proof which falls on a Member State which wishes to apply this rule. It likewise rightly states that Member US which require the identify unit of measurement fellow member to brand an application for identify unit of measurement reunion should select concern human relationship of the exceptional issues relating to refugees.

Legal challenges

Finally, the Commission makes the audio points that inward lite of Article 47 of the European Union Charter, legal challenges to identify unit of measurement reunion decisions must apply to all decisions made pursuant to the Directive, must let access to a court, together with must consider all issues of fact together with law, including a review of the merits of decisions.

Conclusions

The Commission’s guidance is largely welcome, champaign of study to the criticisms made above. But it is likewise rather overdue. One tin sack exclusively promise that it proves useful to national courts together with administrations, together with that the Commission does non hesitate to convey infringement actions to dorsum upwards its convictions close the right interpretation of these fundamental rules facilitating the right to identify unit of measurement life of third-country nationals.


 Barnard & Peers: Chapter 26

 Annex – novel pending instance on integration measures: translation together with notes past times Jeremy Bierbach

  Preliminary reference from the Council of State of 1 Apr 2013, cases 201211916/1/V2 together with 201300404/1/V2, K. together with A. vs. Minister van Buitenlandse Zaken:

 1.a Can the term 'integration conditions' - contained inward Art. 7(2) of Directive 2003/86/EC of the Council of the European Union of 22 Dec 2003 concerning the right to identify unit of measurement reunification (PB 2003 L 251, alongside rectification inward PB 2012 L 71) - endure interpreted inward such a means that the competent national government of the fellow member states tin sack require of the identify unit of measurement fellow member of a third-country national [Dutch: lit. "family unifier"] that the identify unit of measurement fellow member shows that he or she possesses noesis of the official linguistic communication of the fellow member province at a flat corresponding to flat A1 of the Common European Framework of Reference for languages, every bit good every bit noesis at a basic flat of the guild of the fellow member state, earlier these government grant this identify unit of measurement fellow member permission for entry together with residence?

 1.b For the answer to this question, is it of importance that, i.a. inward the context of the proportionality essay every bit described inward the European Commission's Green Paper of xv Nov 2011 concerning the right to identify unit of measurement reunification, according to national regulations imposing the status mentioned inward 1.a, the application for permission for entry together with residence, barring the circumstance that the identify unit of measurement fellow member has demonstrated that he or she is durably incapable of taking the integration exam due to a psychological or physical disability, volition exclusively non endure rejected if a combination of real special private circumstances are acquaint that justify the supposition that the identify unit of measurement fellow member is durably incapable of satisfying the integration conditions?

 2. Does the destination of Directive 2003/86/EC, together with inward exceptional Art. 7(2) of it, forestall that the exam to essay whether the identify unit of measurement fellow member satisfies the aforementioned integration weather condition costs €350 for every fourth dimension that the exam is taken, together with that the one-time terms of the study materials to ready for the exam is €110?

 The basic details of the case: K. is a national of Republic of Azerbaijan who applied for a preliminary visa at the Dutch diplomatic mission inward Ankara for the purpose of applying for a residence let for remain alongside her hubby (nationality non provided). She submitted a medical declaration that she suffers from diabetes, hypertension, coronary disease, hypercholesteremia together with morbid obesity, which makes her, inward 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 diplomatic mission inward Abuja. She submitted medical documents showing that she suffers from a psychological disorder for which she has to select medication. In both cases, the Deputy Minister of Justice (the political caput of the Dutch immigration potency IND, which takes decisions on visas on behalf of the Minister of Foreign Affairs, the formal accused inward 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 non violate the Directive.

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