COUNCIL OF

THE EUROPEAN UNION

 

 

 

Brussels, 23 January 2003

 

 

Interinstitutional File:

1999/0258 (CNS)

 

5508/03

 

 

LIMITE

 

 

 

 

MIGR 1

 

 

 

OUTCOME OF PROCEEDINGS

of :

Migration and Expulsion Working Party

on :

14 January 2003

No. prev.doc.:

No.Cion prop.:

14272/02 MIGR 119

8628/02 MIGR 39 - COM(2002) 225 final

Subject :

Amended proposal for a Council Directive on the right to family reunification

 

 

I

 

At its meeting on 14 January 2003 the Working Party on Migration and Expulsion examined the above amended proposal.

 

Delegations will find in section II below the text of the Articles of the draft Directive, with delegations' comments in footnotes.

 

__________________

 

 

II

Amended proposal for a

 

COUNCIL DIRECTIVE

on the right to family reunification[1]

 

 

Chapter I

General provisions

 

Article 1[2]

 

The purpose of this Directive is to determine the conditions for the exercise of the right to family reunification by third‑country nationals residing lawfully in the territory of the Member States.

 

Article 2

 

For the purpose 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, including stateless persons;

 

(b)     "refugee" means any third‑country national or stateless person enjoying refugee status within the meaning of the Convention on 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 and applying or whose family members apply for family reunification to be joined with him/her;

 

(d)     "family reunification" means the entry into and residence in a Member State by family members 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;

 

(e)     "residence permit" means any authorisation issued by the authorities of a Member State allowing a third-country national to stay legally in its territory, in accordance with the provisions of Article 1(2)(a) of Regulation 1030/2002 laying down a uniform format for residence permits for third-country nationals.[3]


(f)    "unaccompanied minor" means third-country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they entered the territory of the Member States[4].

Article 3

 

1.      This Directive shall apply where the sponsor is a third‑country national residing lawfully in a Member State and holding a residence permit issued by that Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third‑country nationals of whatever 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;

 

(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 members of the family of a Union citizen.

 

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;

 

(b)     the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the Legal Status of Migrant Workers of 24 November 1977.

 

5.          This Directive shall not affect the possibility for the Member States to adopt or retain more favourable provisions.

 

(...)

 

 

 

Chapter II

Family members

 

Article 4

 

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;

 

(b)     the minor children of the sponsor and of his/her spouse, 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 or must be recognised in accordance with international obligations;

 

(c)     the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement.

 

(d)     the minor children including adopted children of the spouse where the spouse has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement.

 

The minor children referred to in this Article must be below the age of majority set by the law of the Member State concerned and must not be married.

 

By way of derogation, where a child is aged over 12 years, the Member State may, before authorising entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of adoption of this Directive[5] [6]

 

2.      Member States may decide that registered partners are treated equally as spouses with respect to family reunification[7].

 

3.      The Member States may, by law or regulation, 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)     first‑degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin;

 

(b)     the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health.

 

4.      The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third‑country national, with whom the sponsor is in a duly attested stable long‑term relationship, or of a third‑country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), and the unmarried minor children, including adopted children, as well as the adult unmarried children who are objectively unable to provide for their own needs on account of their state of health, of such persons[8].

 

5.      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 family reunification of a further spouse.

 

By derogation to paragraph 1(c), Member States may limit the family reunification of minor children of a further spouse and the sponsor[9].


6.      Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum the age of legal majority set by the law of the Member State concerned, before the spouse is able to join him/her[10].

 

 

Chapter III

Submission and examination of the application

 

Article 5

 

1.      Member States shall determine 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 documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, 7 and 8, as well as certified copies of family member(s)' travel documents.

 

If appropriate, in order to obtain evidence that a family relationship exists, 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, registration of the partnership and any other reliable means of proof.

 

3.      The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides.

 

By way of derogation, a Member State may, in appropriate circumstances, accept an application be submitted when the family members are already in its territory.

 

4.      The competent authorities of the Member State shall give the person who has submitted the application written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged.

 

In exceptional circumstances linked to the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended. (...)

 

Reasons shall be given for the decision rejecting the application. Any consequences of no decision being taken by the end of the period provided for in the first subparagraph shall be determined by the national legislation of the relevant Member State.

 

5.      When examining an application, the Member States shall have due regard to the best interests of minor children (...).

 

Chapter IV

Requirements for the exercise of the right to family reunification

Article 6

 

1.      The Member States may reject an application for entry and residence of family members on grounds of public policy, public security or public health[11].

 

2.      Member States may withdraw or refuse to renew a family member's residence permit on grounds of public policy, public security or public health.

 

When taking the relevant decision, the Member State shall consider, besides Article 17, the severity or type of offence against public policy or public security committed by the family member, or the dangers that are emanating from this person.

(...)

3.      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 7

 

1.      When the application for family reunification is submitted, the Member State concerned may ask the person who has submitted the application to provide evidence that the sponsor has[12]:

 

(a)     accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State concerned;

 

(b)     sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned for himself/herself and the members of his/her family;

(c)          stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned (...). Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members[13].

 

(...)

 

(...)

 

2.      (...) Member States may require third-country nationals to comply with integration measures, in accordance with national law.

 

Article 8

 

Member States may require the sponsor to have stayed lawfully in their territory for a period not exceeding two years, before having his family members join him/her.

 

By way of derogation, where the legislation of a Member State relating to family reunification in force on the date of adoption of this Directive has regard for its reception capacity, the Member State may provide for a waiting period of no more than three years between submission of the application for family reunification and the issue of a residence permit to the family members[14].

 

 

Chapter V

Family reunification of refugees

 

Article 9

 

1.      This Chapter shall apply to family reunification of refugees recognised by the Member States.

 

2.      Member States may confine the application of this Chapter to refugees whose family relationships predate their entry.

 

3.      This Chapter is without prejudice to any rules granting refugee status to family members.

 

 

Article 10

 

1.      Article 4 shall apply to the definition of family members, except that the third subparagraph of paragraph 1 shall not apply to the children of refugees.

 

2.      The Member States may authorise family reunification of other family members not referred to in Article 4, if they are dependent on the refugee.

 

3.      If the refugee is an unaccompanied minor, the Member States:

 

(a)     shall authorise the entry and residence for the purposes of family reunification of his/her first‑degree relatives in the direct ascending line without applying the conditions laid down in Article 4(3)(a)[15];

 

(b)     may authorise the entry and residence for the purposes of family reunification of his/her legal guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced.

 

Article 11

 

1.      Subject to paragraph 2, Article 5 shall apply to the submission and examination of the application.

 

2.      Where a refugee cannot provide official documentary evidence of the family relationship, the Member States shall have regard to other evidence, to be assessed in accordance with national law, of the existence of such relationship. A decision rejecting an application may not be based solely on the fact that documentary evidence is lacking.

 

Article 12

 

1.      By way of derogation from Article 7, the Member States shall not require the refugee/family member(s) to provide, in respect of applications concerning those family members referred to in Article 4(1), the evidence that the refugee fulfils the requirements set out in this provision[16].

 

2.      By way of derogation from Article 8, 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.

 

Chapter VI

Entry and residence of family members[17]

 

Article 13[18]

 

1.      As soon as the application for family reunification has been accepted, the Member State concerned shall authorise the entry of the family member or members. In that regard, the Member State concerned shall grant such persons every facility for obtaining the requisite visas.

 

2.      Without prejudice to paragraph 3, the Member State concerned shall grant the family members a first residence permit of at least one year's duration. This residence permit shall be renewable.

(...)

 

3.      The duration of the residence permits granted to the family member(s) shall not go beyond the date of expiry of the residence permit held by the sponsor.

 

Article 14

 

1.      The sponsor's family members shall be entitled, in the same way as the sponsor, to[19]:

 

(a)     access to education;

 

(b)     access to employment and self‑employed activity;

 

(c)     access to vocational guidance, initial and further training and retraining.

 

2.      Member States may restrict access to employment or self‑employed activity by first-degree relatives in the direct ascending line or adult unmarried children to whom Article 4(3) applies.

 

Article 15

 

1.      At the latest after five years of residence, and provided that (...) the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor.

 

Member States may limit the granting of the residence permit referred to in the first sub-paragraph to the spouse or unmarried partner in cases of breakdown of the family relationship.

 

2.      The Member States may issue an autonomous residence permit to children of full age and to relatives in the direct ascending line to whom Article 4(3) applies.

 

3.      In the event of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, an autonomous residence permit may be issued, upon application, if required, to persons who have entered by virtue of family reunification. Member States shall lay down provisions ensuring the granting of an autonomous residence permit in the event of particularly difficult circumstances.

 

4.      The conditions relating to the granting and duration of the autonomous residence permit are established by national law.

 

Chapter VII

Penalties and redress

 

Article 16

 

1.      Member States may reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a family member's residence permit, in the following circumstances:

 

(a)     where the conditions laid down by this Directive are not or are no longer satisfied;

 

When renewing the residence permit, where the sponsor has no sufficient resources without recourse to the social assistance system of the Member State, as referred to in Article 7(1)(c), the Member State shall take into account the contributions of the family members to the household income[20].

 

(b)     where the sponsor and his/her family member(s) do not or no longer live in a full marital or family relationship.

 

(c)     where it is found that the sponsor or the unmarried partner is married or is in a stable long‑term relationship with another person.

 

2.      Member States may also reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew the family member's residence permits, 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, partnership or adoption was contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State.

 

          When making an assessment with respect to this point, Member States may have regard in particular to the fact that the marriage, partnership or adoption was contracted after the sponsor has been issued his/her residence permit[21].

 

3.      The Member States may withdraw or refuse to renew the residence permit of a family member where the sponsor’s residence comes to an end and the family member does not yet enjoy the autonomous right of residence under Article 15.

 

4.      Member States may conduct specific checks and inspections where there is reason to suspect that there is fraud or a marriage, partnership or adoption of convenience as defined by paragraph 2. Specific checks may also be undertaken on the occasion of 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 to the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or 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 mount a legal challenge 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 and the competence according to which the right referred to in the first subparagraph is exercised shall be established by the Member States concerned.

 

Chapter VIII

Final provisions

 

Article 19

 

From time to time, and for the first time no later than two years after the deadline set by Article 20, 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. These proposals for amendments shall be made by way of priority in relation to Articles 3, 4, 7, 8 and 13.

 

Article 20

 

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than [31 December 2003][22]. They shall forthwith inform the Commission thereof.

 

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 21

 

This Directive shall enter into force on the [...] day following its publication in the Official Journal of the European Communities.

 

Article 22

 

This Directive is addressed to the Member States.

 

Done at Brussels,

 

 

    For the Council

    The President

 


[1]        NL maintained a parliamentary reservation on the Directive.

         F maintained a general linguistic reservation on the Directive.

[2]        In relation with Article 1, the Working Party agreed to insert the following clause in the Preamble of the Directive:

         Member States may consider that the provisions laid down in this Directive also apply when the family enters altogether.

[3]        OJ L 157 of 15 June 2002, page 1.

[4]           Feeling that this provision might be in contradiction with Article 4, which states that the age of majority should be determined in accordance with the national legislation, A maintained a reservation on point f). In particular it suggested adding, in this definition, the words within the meaning of Chapter V.

            The Pres, which preferred maintaining the current draft, questioned the reason for such an addition, insofar as the definition of unaccompanied minors is only used in Chapter V.

            Moreover, it drew attention to the need for ensuring consistency with various Directives in the area of asylum, which contain the same definition (see for instance Article 2(h) of the Council Directive laying down minimum standards for the reception of asylum seekers in Member States - 15398/02 ASILE 78, page 8 -)

[5]        Opposing the derogation provided for in this provision, F maintained a reservation on the last sub-paragraph of paragraph 1.

[6]        A submitted the following compromise suggestion for a new sub-paragraph to be introduced in paragraph 1:

         By way of derogation, Member States may request that the application for family reunification has to be submitted before the age of fifteen. If the application is submitted after the age of fifteen, the Member States which decide to apply this derogation shall examine other grounds for granting a residence permit.

         This compromise suggestion has not been supported by the Working Party.

[7]        E and F maintained reservation on this provision.

Feeling that registered partners are already covered in paragraph 4, which concerns unmarried partners, these delegations took the view that paragraph 2 should be deleted and its content should be moved to the said provision.

The Pres suggested moving the clause contained in paragraph 2 in paragraph 4 and adding a statement to the Directive concerning reistered partners.

FIN, NL and S insisted for maintaining the current draft of paragraph 2.

 

[8]        In the framework of the examination of this provision, the Working Party agreed to insert the following safeguard clause in the Preamble of the Directive as a recital:

         Where a Member State authorises family reunification of the persons referred to in Article 4(2), (3) and (4), this is without prejudice of the possibility, for Member States which do not recognise the existence of family ties in the cases covered by this provision, of not granting to the said persons the treatment of family members with regard to the right to reside in another Member State, as defined by the Directive..../EC/..... on the status of third-country nationals who are long-term residents.

         NL and S maintained scrutiny reservations on this clause.

[9]        F maintained a scrutiny reservation on this provision.

         The Pres submitted the following compromise suggestion:

                 5. 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 family reunification of a further spouse and the sponsor.

By derogation to the first sub-paragraph, Member States may authorise the family reunification of minor children of a further spouse and the sponsor.

This compromise suggestion has been supported by F, but has not been agreed by the Working Party.

[10]       NL maintained a scrutiny reservation on this provision.

[11]         D and A wanted the words threat to international relations to be introduced in this provision.

            The Council Legal Service drew attention to the fact that this addition might raise some risks of conflict with the provisions of Articles 8 and 14 of the European Convention on Human Rights, which concern the right to family unit.

            The Pres, which invited the Council Legal Service to submit a legal opinion in writing, felt that this issue needs to be further considered.

 

[12]       A maintained that a further requirement should be introduced in this provision: a health certificate.

         The Pres wondered whether the introduction of this additional requirement is appropriate. It took the view that the A concern is already covered by the provisions of Article 6(1), insofar as the Member States may reject an application for entry and residence of family members on grounds, among others, of public health.

[13]       F maintained a linguistic and scrutiny reservation on point c).

[14]       A, which maintained a reservation on Article 8, pointed out that the maximum duration of the waiting period referred to in this provision should be of at least five years instead of three years.

         Most delegations, as well as the Cion, felt that five years is too long a period.

[15]       Pointing out that not only the biological parents should be taken into account for the purposes of family reunification, S wanted the legal guardians of unaccompanied minors to be covered in point a).

         The Pres drew attention to the fact that legal guardians are already covered in point b) of this provision.

The Cion expressed some concern about the suggestion of obliging Member States to authorise family reunification of legal guardians, in particular taking into account the need for preventing and avoiding trafficking of minor children.

[16]       D and NL maintained reservations on this provision.

         D pointed out that, according to its national legislation, the family members of a refugee are requested to meet the relevant requirements in order to being reunited in Germany in cases where they can be reunited with the sponsor in another State.

Moreover, it opposed the fact that on the basis of the current draft the family members of a refugee are not required to meet the condition on integration referred to in Article 7(2).

         NL noted that, according to applicable Dutch law, the family members of a refugee are not required to meet the condition of appropriate financial resources only if the application for family reunification is submitted within three months from the date of entry of the refugee in its territory.

[17]          According to D a clause should be added in Chapter VI whereby after their entry in the territory of a Member State, once being granted family reunification, the family members may also be required to comply with integration measures.

            The Pres, supported by the Cion, felt that this addition is not necessary, insofar as the requirement on integration set out in Article 7(2) has an horizontal application throughout the Directive. It took the view that this requirement applies not only to the stage when the application is submitted and examined, but also the stage following the entry of the person concerned in the territory of the Member State, when he/she has already been granted family reunification.

            However, with a view to meeting the concern raised by D, it suggested adding the following clause as a new paragraph 3 in Article 14:

            3. Member States may have access to integration measures.

            This compromise suggestion has not been supported by D.

[18]         F maintained a scutiny reservation on this provision.

[19]       Noting that in Austria third-country nationals enjoy equal treatment, A pointed out that their access to the labour market is subject to an authorisation and maintained a reservation on paragraph 1 (in particular on points b) and c)). EL maintained a scrutiny reservation on this provision.

D, which questioned in particular the Community competence in the area of access to employment, submitted the following compromise suggestion (which is inspired, in particular as far as paragraph 2 is concerned, from the clause contained in Article 11(2) of the Directive laying down minimum standards for the reception of asylum seekers in Member States - see 15398/02 ASILE 78, page 15 -):

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;

               (b) (c) access to vocational guidance, initial and further training and retraining.

2.            Member States shall decide according to national legislation the conditions under which family members may exercise an employed or self-employed economic activity.

This compromise suggestion was supported by A but has not been agreed by the Working Party.

See also footnote 1 on page 17.

[20]       F maintained a scrutiny reservation on this provision.

[21]       D maintained a reservation on the second sub-paragraph of A rticle 16(2)(b). This provision results from a compromise suggestion submitted by the Pres with a view to covering a specific concern raised by D in the framework of Article 4(1).

         An alternative compromise suggestion submitted by D and supported by A (When taking a decision with respect to this point, Member States may provide for special regulations in cases when the marriage, partnership or adoption was contracted after the sponsor has been issued his/her residence permit) has not been agreed by the Working Party.

[22]       A insisted that that it would be advisable to set a deadline instead of a specific date. D felt that a deadline of twenty-four or eighteen months might be taken into account.