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THE EUROPEAN UNION |
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MIGR 32 |
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_______________
ANNEX
Draft
COUNCIL DIRECTIVE
on the right to family reunification [4]
Chapter I
General provisions
Article 1
The purpose of this Directive is to establish the conditions for exercise of the right to family reunification enjoyed by third-country nationals residing lawfully in the territory of the Member States and citizens of the Union who have not exercised their right to free movement.
Article 2
For the purposes of this Directive:
(a) "third-country national" means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty establishing the European Community, including stateless persons;
(b) "refugee" means any third-country national or stateless person enjoying refugee status within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967;
(c) "sponsor" means a third-country national residing lawfully in a Member State, or a citizen of the Union, who wants to be joined by members of his family;
(d) "family member" means the third-country national, who wants to join the sponsor[5];
(e) "family reunification" means the entry into and residence in a Member State by family members of a citizen of the Union or of a third-country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry;
(f) "residence permit" means a permit or authorisation issued by the authorities of a Member State in accordance with its legislation allowing a third-country national to reside in its territory, with the exception of provisional authorisations pending examination of an application for asylum, or decisions whose sole purpose is to suspend the enforcement of an expulsion order without thereby opening up a right of residence;[6]
(g) "unmarried partner" means a third-country national living in a duly proven durable relationship with the sponsor, including a third-country national linked to the sponsor by a registered partnership, if the aliens legislation of the Member State concerned treats the situation of unmarried partners as comparable to that of married couples[7].
Article 3
1. This Directive applies where the sponsor is:
(a) a third-country national residing lawfully in a Member State and holding a residence permit issued by that Member State for a period of at least one year, and having a reasonable prospect of obtaining a long-term right of residence.
(b) a citizen of the Union residing in the Member State of which he/she is a national and who has not exercised his/her right to free movement of persons, [8]
if the sponsor's family members are third-country nationals, irrespective of their legal status.
2. This Directive shall not apply where the sponsor is:
(a) a third-country national applying for recognition of refugee status whose application has not yet given rise to a final decision; or
(b) a third-country national authorised to reside in a Member State on the basis of temporary protection or applying for authorisation to reside on that basis and awaiting a decision on his status;
(c) a third-country national authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or applying for authorisation to reside on that basis and awaiting a decision on his status.
3. This Directive shall not apply to family members of citizens of the Union who have exercised their right to free movement of persons.
4. This Directive is without prejudice to more favourable provisions of:
(a) bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other [9]; or
(b) the European Social Charter of 18 October 1961 and the European Convention on the Legal Status of Migrant Workers of 24 November 1977.
Article 4[10]
By way of derogation from this Directive, the family reunification of third-country nationals who are family members of a citizen of the Union residing in the Member State of which he/she is a national and who has not exercised his/her right to free movement of persons, is governed mutatis mutandis by Articles 10, 11 and 12 of Council Regulation (EEC) No 1612/68 and by the other provisions of Community law listed in the Annex.
Chapter II
Family members
Article 5[11]
1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the following family members:
(a) the sponsor's spouse, or an unmarried partner;
(b) the minor children of the sponsor and of his/her spouse or unmarried partner[12], including children adopted in accordance with a decision taken by the competent authority in the Member State concerned or a decision which is automatically enforceable due to international obligations of that Member State;
(c) the minor children including adopted children of the sponsor or his/her spouse or unmarried partner, where one of them has custody and the children are dependent on him or her; where custody is shared, the agreement of the other custodian shall be required;
2. Member States shall also authorise on a case-by-case basis the entry and residence of the following family members:
(a) the relatives in the direct ascending line of the sponsor or his/her spouse or unmarried partner, subject to the condition that they are dependent on them and are deprived of necessary means of family support in the country of origin; [13]
(b) children of the sponsor or his/her spouse or unmarried partner, being of full age, who are unmarried and have not entered into a durable unmarried relationship, subject to the condition that they are objectively unable to satisfy their needs by reason of their state of health[14].[15]
3. In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the entry and residence of a further spouse, nor the children of such spouse, without prejudice to the provisions of the 1989 Convention on the Rights of the Child.
4. The minor children referred to in (b) and (c) of paragraph 1 must be below the age of majority set by the law[16] of the Member State concerned and must not be married or have entered into an unmarried relationship.
Chapter III
Submission and examination of the application
Article 6
1. Member States shall decide whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members.
2. The application shall be accompanied by: family member(s)' travel documents, documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 5, 7 and, where applicable, 8 and 9.
In order to obtain evidence that a family relationship exist, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found necessary.
When examining an application concerning the unmarried partner of the sponsor, Member States shall consider as evidence of the family relationship factors such as a common child, previous cohabitation and any other reliable means of proof.
3. The application shall be submitted when the family members are outside the territory of the Member State.
A Member State may accept, in appropriate circumstances, other applications submitted when the family members are already in its territory.
4. The competent authorities of the Member State shall give the sponsor/family member(s) written notification of the decision as soon as possible and in any event no later than nine months from the date of application.[17][18]
Reasons shall be given for any decision rejecting the
application.
5. When examining an application, the Member States shall have due regard to the best interests of minor children, in accordance with the 1989 Convention on the Rights of the Child.
Chapter IV
Requirements for the exercise of the right to family
reunification
Article 7
1. The Member States may reject an application for entry and residence of family members on grounds of public policy, domestic security or public health[19].
2. Member States may withdraw or refuse to renew a family member's residence permit on grounds of public policy and domestic security.[20]
3. The grounds of public policy or domestic security must be based exclusively on the personal conduct of the family member concerned.
4. Renewal of the residence permit may not be withheld and removal from the territory may not be ordered by the competent authority of the Member State concerned on the sole ground of illness or disability suffered after the issue of the residence permit.
Article 8
1. When the application for family reunification is submitted, the Member State concerned may ask the sponsor/family member to provide evidence that the sponsor has:
(a) accommodation regarded as normal for a comparable family of the same region[21] and which meets its general health and safety standards in force in the Member State concerned;
(b) sickness insurance in respect of all risks in the Member State concerned for himself/herself and the members of his/her family;
(c) stable resources which are higher than or equal to the level of resources below which the Member State concerned may grant social assistance. Where this provision cannot be applied, resources must be higher or at least equal to the level of the minimum social security pensions paid by the Member State. The stable resources criterion shall be evaluated by reference to the nature and regularity of the resources.[22]
The Member State may require the sponsor/family member to meet the conditions referred to in paragraph 1 for a period not exceeding two years after the entry of the family member(s)[23]. However, if the sponsor does not meet the said conditions, Member States shall take into account family members' contributions to the household income.
2. The conditions relating to accommodation, sickness insurance and resources provided for by paragraph 1 may be set by the Member States only in order to ensure that the sponsor will be able to satisfy the needs of his reunified family members without further recourse to public funds. They may not have the effect of discriminating between nationals of the Member State and third-country nationals.
Article 9
The Member States may require the sponsor to have resided lawfully in their territory for a period not exceeding two years[24], before having his family members join him[25].
Chapter V
Family reunification of refugees[26]
Article
10
1. The Member States shall authorise the entry and residence, pursuant to this Directive, of family members of refugees as defined in Article 5(1). [27]
The Member States shall authorise on a case-by-case basis the entry and residence, pursuant to this Directive, of family members of refugees as defined in Article 5(2).[28]
2. The Member States may grant family reunification of other family members not referred to in Article 5, if they are dependent on the refugee[29][30].
3. If the refugee is an unaccompanied minor, the Member States may[31]:
(a) authorise the entry and residence for the purposes of family reunification of his/her relatives in the direct ascending line without applying the conditions laid down in Article 5(2)(a)[32];
(b) authorise the entry and residence for the purposes of family reunification of any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced[33].
Article
11
1. Where a refugee exercises the right to family reunification, the provisions of Article 6 shall apply, subject to paragraph 2[34][35].
2. Where a refugee cannot provide documentary evidence of the family relationship, the Member States shall have regard to other evidence of the existence of such relationship. A decision rejecting an application may not be based solely on the fact that documentary evidence is lacking[36].
Article
12
1. [37]By derogation from Article 8, the Member States shall not request the refugee/family member to provide, in respect of applications concerning those family members referred to in Article 5(1), the evidence that the refugee fulfils the requirements of accommodation, sickness insurance and stable resources[38].
2. By derogation from Article 9, the Member States shall not require the refugee to have resided in their territory for a certain period of time, before having his/her family members join him/her.
1. Once the application for family reunification has been approved, the Member State concerned shall authorise the entry of the family member or members. In that regard, Member States shall grant such persons every facility for obtaining the requisite visas.
2. The Member State concerned shall grant the family members a renewable residence permit of the same duration as that held by the sponsor. Where the sponsor's residence permit is permanent or for an unlimited duration, the Member States may grant family member(s) residence permits of limited duration during the first four years.[39]
1. The sponsor's family members shall be entitled, in the same way as the sponsor, to:
(a) access to education;
(b) access to employment and self-employed activity; [40] [41]
(c) access to vocational guidance, initial and further training and retraining.
2. Member States may restrict access to employment or self-employed activity by relatives in the direct ascending line or children of full age to whom Article 5(2)(a) and (b) applies.
Article 15
1. At the latest after
four years of residence[42],
and provided the family relationship still exists, the spouse or unmarried
partner [43] and a child
who has reached majority shall be entitled to a residence permit independent of
that of the sponsor.
2. The Member States may issue an independent residence permit to relatives in the direct ascending line and to children of full age to whom Article 5(2)(a) and (b) applies.[44]
3. In the event of widowhood, divorce, separation[45], or death of relatives in the ascending or descending line, an independent residence permit may be issued to persons who have entered by virtue of family reunification. Member States shall lay down provisions ensuring the granting of an independent residence permit in the event of particularly difficult circumstances.
Chapter VII
Sanctions
and redress
Article 16
1. Where the conditions set out in this Directive are not met, Member States may reject an application for entry and residence for the purpose of family reunification or, where applicable, withdraw or refuse to renew a family member's residence permit.[46]
2. Member States may also reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew a family member's residence permit, where it is shown that:
(a) false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used;
(b) the marriage, unmarried partnership or adoption was contracted or entered into for the sole purpose of enabling the person concerned to enter or reside in a Member State.
3. Member States shall undertake specific checks where there are grounds for suspicion. Specific checks may also be undertaken in connection with the renewal of family members' residence permit.
Article 17
Member States shall have proper regard for the
nature and solidity of the person's family relationships and the duration of
his residence in the Member State and for the existence of family, cultural and
social ties with his country of origin where they withdraw or refuse to renew a
residence permit or decide to order the removal of members of his family.
Article 18
The Member States shall ensure that the sponsor and/or the members of his/her family have the right to apply to the courts where an application for family reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered.
The procedure according to which the right referred to in the first subparagraph is exercised shall be established by the Member States concerned.
Article 19
The Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The sanctions thus provided for must be effective, proportional and dissuasive.
Chapter VIII
Final provisions
Article 20
No later than two years after the deadline set by Article 21 the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose such amendments as may appear necessary.
Article
21
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than [eighteen]months after the date of adoption. They shall forthwith inform the Commission thereof and shall notify it without delay of any subsequent amendment affecting them.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article
22
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.
Article 23
[1] 5396/00 MIGR 6 (COM(99 638 final).
N.B. The United Kingdom and Ireland have not notified their intention to participate in the adoption of this Directive. Given also the position of Denmark with respect to measures under Title IV of the Treaty, the Directive will therefore be addressed to twelve Member States.
[2] 11040/00 ADD 1 PE-RE 56.
[3] 11123/01 MIGR 68 (COM(2000) 624 final).
[4] A upheld a general reservation, mainly due to the fact that the Commission proposal did not take account of the quota system which applied in Austria. A has communicated to the Secretariat that is maintains furthermore general reservations on most of the individual articles of the draft Directive.
NL upheld a parliamentary scrutiny reservation.
D and GR maintained linguistic scrutiny reservations on the entire draft Directive.
[5] B wanted this definition to be deleted.
[6] A wanted to replace this definition by the one included in the Schengen Implementing Convention.
[7] E questioned the opportuneness of referring to the legislation of the Member State concerned and stressed furthermore the difficulties of proving the existence of a durable relationship for persons living in third-countries. Emphasizing the risk of fraud and abuse, it maintained its reservation on this definition. I, pending further consideration of Article 5, maintained a scrutiny reservation.
[8] D, FIN and NL maintained reservations on this point. D pointed out that its reservation is linked to the question of third-country nationals of German origin (Aussiedler), who are entitled to German nationality under German law.
[9] In reply to a query from E and A, the Council Legal Service intervened on the question of the extent to which Member States could still conclude bilateral agreements containing more favourable provisions. It undertook to confirm its intervention in writing. E maintained a reservation.
[10] See footnote 1 on page 5.
[11] E maintained a reservation and I a scrutiny reservation concerning unmarried partnership.
[12] NL maintained that evidence should be provided that children have not only legal ties, but also a genuine relationship with the family. Cion opposed this approach, which would result in imposing an additional condition to be fulfilled.
[13] I maintained a reservation concerning family reunification of relatives in the direct ascending line of the spouse.
[14] The Strategic Committee held an in-depth exchange of views on the structure to be given to Article 5, during which it was generally felt that a distinction should be made in the treatment of cases concerning the nuclear family and other cases (hence the split of former paragraph 1 into two paragraphs). With regard to the new paragraph 2, D felt that the text should bring out clearly that such cases should be dealt with by the Member States in a discretionary manner. GR and F suggested replacing "shall" by "may" in the first line of paragraph 2. E could accept the suggestion of GR and F for point (a). Cion for its part was willing to study this new structure but felt that further parameters for the handling of the cases covered in paragraph 2 were necessary. Presidency said it would endeavour to refine the text further in consultation with the Commission services.
[15] B and E suggested compromise solutions concerning Article 5. In a first exchange of views on the E suggestion D, F, I, P and A favoured such an approach, while B and S, supported by Cion, opposed it.
[16] D and A wanted a fairly flexible wording on the age of majority to be adopted, since various ages could be taken into account in the Member States. In particular D, which maintained a reservation, wanted this provision either to refer to the age of 16 years or to allow some flexibility for children aged between 16 and 18.
[17] NL maintained a reservation on the nine month time-limit.
[18] A stressed the need to clarify that the legal consequences for the national authorities of not respecting the nine-month time-limit laid down in Article 6(4) will be determined and assessed in accordance with the applicable administrative provisions of the Member State concerned, which are not affected by this Directive.
[19] E maintained a reservation on this provision.
Replying to a question from E, Cion stressed that the ground of public policy must be based exclusively on the personal conduct of the family member concerned, as established in paragraph 3. Nevertheless, it pointed out that Member States are allowed a large amount of discretion in determining in what circumstances and to what extent the ground of public policy may be invoked for rejecting an application for entry and residence of family members. It also added that Member States are not prevented from requesting family members, on a systematic basis, to provide police records.
[20] A felt that this paragraph was superfluous since it was already covered in Article 16(1).
[21] D maintained a linguistic reservation.
[22] GR maintained a reservation concerning the resources.
[23] A stressed that reunited family members need to provide evidence that they meet for a certain period of time the conditions referred to in points (a), (b) and (c). Two delegations wanted a longer time-limit to be set (3-4 years for D and 3-5 years for NL). F, supported by E, feeling that this provision is not consistent with Article 8 of the European Convention on Human Rights, wanted the time-limit to be reduced to one year. Sharing the remarks from F, B took the view that the Directive should contain a provision whereby the fact of not cohabiting with the sponsor, proven by means of relevant checks, can be considered as a ground for not granting family members a residence permit or its extension. Cion supported E and F.
[24] D, which wanted a longer period to be set in this provision, maintained a reservation.
[25] B wanted a new paragraph 2 to be added in this Article, which would read as follows:
'2. Member States may require the sponsor and his/her spouse to be of a minimum age before the spouse is able to join him/her.'
[26] E and A maintained scrutiny reservations on this Chapter. A maintained a linguistic reservation. F maintained that, in order to avoid abuse, since refugees are granted more favourable provisions, family reunification under this Chapter should be authorised only when they have entered into a family relationship before being granted refugee status. Opposing the approach from F, Cion took the view that the family reunification of refugees should be authorised irrespective of the fact that they have entered into a family relationship before or after being granted refugee status.
[27] I, pending further consideration of Article 5, maintained a reservation.
[28] B, D, NL and A noted that paragraph 1 needs to be examined in connection with Article 5(1) and (2), on which agreement has not yet been reached. Considering that family reunification of refugees should be limited only to the members of the nuclear family referred to in 5(1), those delegations maintained reservations.
[29] B, D, GR and F maintained reservations. F opposed adopting a definition of family which is wider than that referred to in Article 5. B stressed that the question of the reunification of family members of refugees other than members of the nuclear family is linked with the discussion concerning Article 5 (1) and (2). GR and A suggested deleting this paragraph. Pres. pointed out that paragraph 2 is an optional provision.
[30] D suggested replacing "if they are dependent on the refugee" by "in cases of extreme hardship".
[31] GR wanted the word 'may' to be replaced with 'shall'.
[32] B and S maintained that this point should be binding for parents and optional for other family members.
[33] GR and A maintained reservations on this point.
[34] D and A maintained scrutiny reservations on this paragraph.
[35] FIN and NL maintained reservations linked with the general time-limit of nine months for the examination of the applications laid down in Article 6(4).
[36] GR maintained a reservation on this paragraph.
[37] D, observing that Member States should be allowed a certain amount of discretion, maintained a reservation on this paragraph.
[38] GR and NL maintained scutiny reservations concerning the derogation from the requirements referred to in Article 8.
[39] D, while agreeing with the period of four years, wanted this time-limit to be applicable only to the first residence permit granted to family members. F, supported by B, stressing the need for promoting the integration of reunited family members, opposed setting a time-limit of four years.
[40] D, GR and A, which wanted the introduction into this provision of a waiting period before granting access to employment and self-employed activity and, in the case of A, to vocational training in point (c), maintained reservations. E and F, recalling the Tampere conclusions and observing that the integration of family members can be effectively achieved only if they are granted immediate access to the labour market, opposed setting any waiting period. E pointed out that setting a time period could lead to the family members seeking employment illegally. Cion, supporting E and F, opposed introducing any waiting period into this provision.
[41] GR drew the attention of the delegations to the opinion given by the Council Legal Service concerning access to employment in the framework of the draft Directive on temporary protection.
[42] NL maintained a reservation on the period of four years. D maintained a reservation pending further consideration of Article 5. E wanted the time-limit to be reduced to two years.
[43] E maintained a reservation regarding unmarried partners.
[44] D maintained a scrutiny reservation on this paragraph. A maintained a reservation linked to Article 5.
[45] Scrutiny reservation from E concerning separation.
[46] E and F reiterated that this provision would allow Member States excessive possibilities for withdrawing or refusing to renew a family member's residence permit and maintained reservations on this paragraph. Observing that the wording of this provision should be reviewed to include a reference to the Articles in which such possibility is provided for, those delegations stressed that Article 8 should in no circumstances be invoked for withdrawing or refusing to renew a family member's residence permit.