Comments
from the European Council on Refugees and Exiles
on
the Amended Proposal for a
Council
Directive on the right to family reunification
(Brussels,
02.05.2002, COM (2002) 225 final)
The
European Council on Refugees and Exiles (ECRE) is a network of some 73 refugee
assisting non-governmental organisations in 30 European countries. ECRE welcomes
this opportunity to present its main concerns regarding the amended Proposal
for a Council Directive on the right to family reunification, published in May
2002. For further information on ECRE’s position on the right to family
reunification, we refer to our comprehensive Position on Refugee Family
Reunification (July 2000), which provides detailed recommendations
regarding all aspects of the right to family unity during the asylum procedure
and the right to family reunification and unity once refugee status is granted.
ECRE is
concerned about the implications of the newly amended proposal on third country
nationals generally and believes that several provisions in the Proposal may
raise concerns with regard to their potential infringement of the right to
respect for family life as enshrined in a series of international instruments.[1] Furthermore, we note with concern that the
proposed Directive, contrary to the original version of the Proposal, expressly
excludes persons enjoying complementary protection from its scope. Given the
similarity of the situation and needs of refugees and persons granted
complementary forms of protection, ECRE would strongly recommend including this
category of persons in the amended Proposal and sees no reason to treat them
differently as regards their right to family reunification. It also believes
that their exclusion from the scope of the Proposal is contrary to the overall
spirit and purpose of the Directive as reflected in its Preamble.[2] In the following section, however, ECRE
focuses its comments only on the rights to family reunification of refugees.
ECRE welcomes
the clear commitment in the Preamble to family reunification as “a
necessary way of making family life possible” (Para. 8), and to
“the obligation to protect the family and respect family life” as
“enshrined in many instruments of international law” (Para. 3). It
also fully supports the recognition of the need to pay “special attention
to the situation of refugees” which should trigger more favourable
conditions for the family reunification of persons in this category (Para. 10).
Additionally, we strongly support the specific provision that Member States are
free to apply existing or newly adopted higher standards (Article 3.5.).
However, ECRE is
extremely concerned by the generally much lowered standards of the amended text
as compared to the two previous Proposals[3] and regrets
the apparent regression from the principles committed to at the Tampere Summit
to develop common policies on asylum and migration that aim at “granting
[third country nationals] rights and obligations comparable to those of EU
citizens” (conclusion 18). We appreciate that the discussion among Member
States on family reunification has been controversial. However, we believe that
the standards contained in the current Proposal risk resulting in Member States
violating their international obligations under relevant human rights treaties,
most importantly as regards the right to respect for family life as enshrined
in Article 8 of the ECHR. Further, we note that the strategy of flexibility
proposed by the Commission allows for high levels of discretion among Member
States to reduce already low standards even further. Flexibility may seem to be
an obvious option for the Commission and Member States in the search for an
agreement on controversial provisions within tight timetables. However, it
remains questionable whether including allowances for national derogations from
widely agreed minimum standards, so that national particularities can be
reflected, is the right approach to the implementation of the Amsterdam Treaty.
In the
following, we would like to limit ourselves to three key concerns:
1.
the
requirement for “reasonable prospects for permanent residence” for
the rights contained in the Proposal to be applicable (Article 3);
2.
the scope of
the refugee family definition (Articles 4 and 10); and
3.
the
appropriate acknowledgement of the particular situation in which refugees find
themselves (Articles 6, 9, 10 and 12).
The comments on the amended proposal are presented in greater detail below. They follow the order of the paper.
Chapter I,
General Provisions
Article 3
(1): ECRE is concerned by
the new provision that now restricts the application of the directive to
persons holding a residence permit ‘for a period of validity of one year
or more’, who have reasonable prospects of becoming permanent residents.
This provision allows for considerable discretion by individual Member States
regarding the interpretation of what constitutes “reasonable
prospects” and risks undermining the purpose of the directive as a whole.
As confirmed in Paragraph 8 of the Preamble, family reunification creates stability
for refugees and allows them to better integrate into the economic and social
life of their new societies, a fundamental objective of the Community (Art. 2
and 3 (1)(k) of the Treaty). The Explanatory Memorandum states that the
intention of Article 3 (1) is to not open the right to family reunification to
persons staying only ‘temporarily without the possibility of
renewal’. ECRE believes that this rationale is sufficiently reflected in
the provision even without the added specification of ‘reasonable
prospects’. It therefore recommends deleting from Article 3 (1) the
clause of ‘reasonable prospects of obtaining the right of permanent
residence’. At a minimum, refugees should be explicitly exempted from its
application.
Chapter IV,
Requirements for the exercise of the right to family reunification
Article 6
(1): Article 6 (1) allows
Member States to reject an application for entry and residence of family
members on public health grounds among others. ECRE does not believe that
health reasons should be invoked to deny refugees the right to family
reunification and would therefore recommend incorporating a derogation from
Article 6 (1) into Chapter
V on the family reunification of refugees.
Chapter V,
Family reunification of refugees
Article 9 (2): ECRE welcomes the Proposal’s
acknowledgement, as reflected in a set of specific provisions, of the
particular situation of refugees who are separated from their families as a
result of persecution and flight. But we consider that in addition to family relationships
that predate the recognition of refugee status, the right to family
reunification should also be extended to the fiancé(e) of a refugee
where the relationship predates the flight of the principal applicant from
his/her country.
Article 10 (2):
Despite the positive
pledges in the Preamble, the Proposal adopts a most restrictive concept of the
family unit, comprising only of spouses and minor children. By making the
definition of family contained in Article 4 applicable to refugees, the Proposal
leaves the important question of unmarried partners and their children, of
ascending relatives and adult children to the discretion of Member States. This
very restrictive family definition may raise issues in terms of its compliance
with Article 8 of the ECHR and other relevant provisions of international law.
Additionally, it risks critically diminishing the effective integration of
refugees into host societies, a point stressed by UNHCR.[4] In line with Paragraph 10 of the Preamble,
ECRE recommends Article 10 (2) to read: “Member States shall authorise family reunification for
other family members …”
ECRE welcomes
in Article 10 the exemption of refugees from the provision under Article 4 (1)
that allows Member States to introduce the age limit of 12 years for children
to reunite with their parents. However, we remain concerned by the fact that
the other provisions of Article 4 still apply to refugees without taking their
particular situation into account. The optional admission of children when
custody is shared and under the condition that the other party has agreed
(Article 4 (1)(c)), for example, fails to acknowledge that refugees may often
find themselves separated during flight and it may therefore be extremely
difficult to obtain agreement from the other parent whose whereabouts may be
completely unknown. We believe that an amendment should be made exempting
refugee children from this provision.
As regards the
requirement for minor children not to be married in order to be eligible for
the right to family reunification (Article 4 (1)), ECRE would recommend the
introduction of a qualification concerning the level of emotional and other
dependency on the parents
before the applications from minor married children are rejected.
Similarly,
Article 4 (2)(b) allows Member States to authorise the entry or residence of
adult unmarried children and their spouses where “they are objectively
unable to provide for their own needs on account of their state of
health”. ECRE would argue that in order to safeguard the right to respect
for family life, due consideration should be given to significant cultural
differences as regards the interpretation of ‘family’. The
dependence of an adult unmarried child on its parents should not be assessed
only in terms of its state of health and ability to materially sustain itself,
but should be seen in its financial, as well as psychological and cultural
aspects.
We are also
deeply concerned by the discretion given to Member States to require applicants
and their spouses to be of a minimum age (at least the age of legal majority)
before they are able to join each other in a Member State. Given particularly
the recent developments at national level in at least one Member State
regarding the introduction of an age limit for spouses who are third country
nationals to join each other in the Member State, ECRE is worried about this
provision that may raise issues regarding undue interference in the private and
family life of refugees as protected under Article 8 of the ECHR. ECRE thus
recommends that a derogation from Article 4 (5) be included in Article 10.
Article 12: Article 12 (2) seeks to exclude refugees
from the provision allowing Member States to impose a waiting period before
family members can join. This is clearly stated in the explanatory memorandum.
In order to clarify this purpose in the actual text of the Directive, ECRE recommends
rephrasing the clause into “the Member States shall not require the refugee …”
September 2002
For
further information please contact the European Council on Refugees and Exiles
(ECRE) at:
ECRE Secretariat EU
Office
Clifton Centre –
Unit 22 205
rue Belliard
110 Clifton Street Box
14
London EC2A 4HT 1040
Brussels
United Kingdom Belgium
Tel: (44) 20 7729 5152 (32)
2 514 5939
Fax: (44) 20 7729 5141 (32)
2 514 5922
E-mail: ecre@ecre.org euecre@ecre.be
http://www.ecre.org