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Family Reunification Directive and its Application in Member States

Family Reunification Directive and its Application in Member States. Dr Helena Wray Dublin 14 th February 2013. Summary. What does the Directive do? Implementation Areas of controversy/uncertainty Function of Directive in states’ family reunification policies.

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Family Reunification Directive and its Application in Member States

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  1. Family Reunification Directive and its Application in Member States Dr Helena Wray Dublin 14th February 2013

  2. Summary • What does the Directive do? • Implementation • Areas of controversy/uncertainty • Function of Directive in states’ family reunification policies

  3. What does the Directive do? • Floor of rights for family members of third country nationals (TCN) who have more than one year’s residence permit and ‘reasonable prospects’ of permanent residence (art. 3(1)) • UK, Ireland and Denmark opt-out • Preamble: ‘respects the fundamental rights and observes the principles’ of article 8 ECHR and Charter of Fundamental Rights

  4. Mandatory obligations only for spouse and minor children (art. 4(1)) • Permissive clauses for ascendant relatives, adult unmarried children and unmarried and registered partners (arts 4(2) and 4(3)) • Includes refugees in pre-flight relationships (art. 9) – some conditions do not apply • Prohibition on entry of more than one spouse in a polygamous marriage (art. 4(4))

  5. Certain limitations permitted e.g.: • Minimum age of spouse up to 21 (art. 4(5)) • Integration measures (art 7(2)) • Pre-entry integration conditions for children over 12 - standstill clause (art. 4) • Child’s application to be made before age of 15 - standstill clause (art. 4(6)) • Up to 2 years lawful stay before application may be made (art. 8)

  6. Up to 3 years waiting period from application if measure relates to reception capacity - standstill clause (art. 8) • Accommodation to be ‘normal’ for comparable family (art. 7(1) (a)) • Sickness insurance (art. 7(1) (b)) • Sufficient resources for maintenance without recourse to social assistance - individualised decision required (art. 7(1) (c))

  7. May refuse for reasons of policy, public security or public health (art. 6)) • Obligations as to procedure, examination, access to education and employment, permanent residence and judicial remedy (arts. 5, 7, 14, 15, 18)

  8. Implementation • Negotiation process began in 1999; final version adopted 2003: • Date for transposition: 3rd October 2005

  9. Implementation slow: • At time of implementation, 22 countries bound • Groenendijk et al (2008): by end of 2006, completely transposed in 13 countries • Infringement proceedings begun against 19 member states, ten reasoned opinions; court proceedings against four; one judgment • By 2011, of 24 countries bound, only Lithuania still in process of transposition

  10. Groendendijk et al (2008): Of 13 countries, who had transposed by end of 2006 (plus one mostly transposed): • On balance, more liberalisation in 8 states, more restrictions in 3 states and mixed effect in rest • In some states, led to first codification of family reunification • Increase in harmonisation between states

  11. Areas of Uncertainty/Controversy • General compatibility with art. 8 ECHR: • Parliament v Council Case C-540/03 • Annulment sought of provisions on possibility of integration of children over 12 (art. 4), exclusion of children over 15 (art. 4(6)) and waiting period (art. 8) as incompatible with arts. 8 and 14 ECHR • Directive found to be compatible with ECHR • States must act compatibly with fundamental rights • Limited margin of appreciation • But aspects of the Directive remain controversial

  12. Income requirement: • 120% minimum wage criterion for family formation in Netherlands • Chakroun (Case C-578/08): • Objective of Directive is to promote family reunification • Cannot exclude a sponsor who has stable and regular resources sufficient to maintain himself and his family, even if eligible for some state assistance • Individual evaluation required • Netherlands reverted to 100% minimum wage • Deterrent effect elsewhere? Still 120% for some families in France but compare to UK/Norway

  13. Pre-entry integration tests for spouses: • In Imran case (C-155/11), Commission’s view was that art 7(2) permitting integration measures aimed to promote integration; this was not achieved by refusing entry • Ruling avoided by issue of residence permit • Effect on member states? • Some impact in Germany but test retained • Test in Austria • UK not bound but Court of Appeal decision on compatibility with ECHR pending • Denmark not bound but ‘on-entry’ test has been withdrawn

  14. Age: • Directive permits minimum age of 21 for spouse • Upheld by Austrian Constitutional Court • Compatibility with ECHR art. 8 questionable: • Quila and another v SSHD [2011] UKSC 45 • Issue was proportionality of rule given benefits unknown and unforced marriages affected

  15. Function of the Directive in European Family Migration • Has affected member states in different ways • Has provided model for new accession states e.g. Poland or opportunity to revise national law generally e.g. Austria, Belgium

  16. Should result in floor of rights but not necessarily greater harmonisation above the floor • But need to recognise dynamic and interactive nature of process: ‘Europeanisation’ as more than a transfer of institutional power

  17. States have used Directive to promote their interests in different ways; • During negotiation process, some states aimed to ensure that Directive involved minimal change: • Germany and Netherlands blocked prohibition of reverse discrimination • Germany, Netherlands and Austria ensured integration measures permitted • Standstill clauses allowed states to retain restrictive provisions - children over 15 in Germany

  18. Implementation led to raising of standards in some states e.g. : • Liberalisation of admission of minor children in Finland, Italy and Sweden • Increased access to employment in Austria, Finland and Italy • Introduction of rules for refugees in • Increased protection for those receiving subsidiary protection in Belgium, Estonia and Netherlands

  19. But member states also lowered standards and sometimes used Directive as pretext : • Waiting period extended in France and Netherlands • Probationary period extended in France, Germany and Netherlands • Minimum age requirements in France and Germany • Integration requirements introduced in Cyprus, France and Netherlands • Income requirement raised in Austria, Belgium, France and (temporarily) Netherlands

  20. Conclusion • Implementation of Directive has fulfilled more than one purpose • Some improvements followed implementation • But trend in recent years is towards more restriction

  21. Might it be worse without it e.g. very high minimum income requirements in UK and Norway • But pre-entry integration tests in France, Netherlands, Germany and Austria • 21 minimum age overturned by UK Supreme Court on art. 8 grounds but permitted under Directive

  22. Difficult to isolate effects of Directive from other legal and political pressures

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