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Position on the Amended EU Commission
Proposal for a Council Directive on the right to family reunification [COM
(2002) 225 final]
Our organisations
represent Churches throughout Europe and Christian agencies particularly concerned
with migrants and refugees. In March 2000 and November 2000 respectively, we
contributed comments to the debate on the original Commission proposal on
family reunion of December 1999 as well as on the amended version of October
2000. We have followed the debate around family reunification and intervened on
several occasions at European and national levels, because we are convinced
that family life is essential to societies, and that the right to family life
is a cornerstone for integration of migrants.
I. General Comments
1. As we have
underlined on various occasions, for Christian churches, safeguarding family is
a priority: it constitutes a universally recognised human right of the family
to protection by society and the state (Universal Declaration of Human Rights,
Art. 16.3). The protection of the family is equally stipulated by the European
Convention on Human Rights and spelled out in the jurisprudence of the European
Court of Human Rights. It cannot be limited to citizens of a country; but must
apply to all residents. Protection for children's right to live with their
families is also contained in the Convention on the Rights of the Child (1989).
2. We had thus
welcomed the European Commission's[1]
proposals particularly as a contribution to a European immigration policy. We
had underlined that family reunion is not only an integral part of a coherent
immigration policy, but important to foster a coherent social policy throughout
the European Union. With regard to the 2. amended version now proposed by the
Commission, we have to express our great regret that the ambitious and
necessary project of an EU-wide harmonisation of the right to family
reunification has been downgraded to a less cohesive approach of identifying
minimum standards at a low level with wide discretion for Member States. We
recognise that it has been impossible to reach agreement in the Council of
Justice and Home Affairs Ministers of the EU and that this proposal is
therefore based on compromise reached in the Council negotiations. We are
concerned that certain provisions have been changed in a way which raises
serious concern about the full respect of the Human Rights standards referred
to above.
3. We had
supported some material conditions like requirements in housing and subsistence
provided in the original proposal because they were related to a wider
definition of family. The present proposal has a very narrow definition of the
family. While we understand that no common definition beyond this could be
agreed, we cannot understand that for this limited group material conditions
are put forward in the same way. The European Convention on Human Rights as
well as the International Convention on the Rights of the Child regards it as
an obligation of the state to safeguard and protect family. This is found in
most European Union Member States’ constitutions as well. It is against
all legal traditions in the European Union to have waiting periods for minor
children before being able to live with their family. [2]
4. The
exclusion of persons enjoying a subsidiary form of protection from the scope of
the directive (Art. 3 No. 2 (c)) is
regrettable, as these persons deserve a particular kind of protection. We share
the views expressed by UNHCR in September 2002 that the humanitarian needs of
persons enjoying subsidiary forms of protection do not differ from those of
Convention refugees. Therefore, there is no reason to exclude this category
from the right to live with their family. We had hoped that the Commission and
the Council would provide for at least equivalent standards for family
reunification, but there is no provision with this regard in the proposal for a
directive for the qualification and status as refugees or as persons who
otherwise need international protection.[3]
5. We are
convinced that the wide discretion left to Member States in the application of
this directive will not serve a harmonised approach and understanding of family
reunification as a right and obligation. We would like to express our support
for any future attempts to reach a higher level of coherence, which we regard
as extremely necessary. However, if the directive was adopted in summer 2003as
planned, it would be transposed into national legislation by 2005 and a review
would start at the earliest by 2007.
6. In providing
for families to live together, solidarity among family members is facilitated.
While this is important emotionally as well as socially, it is also beneficial
economically. All these aspects are important facets of integration. We deeply
regret that certain provisions have been changed in the Commission proposal
leading to a potential danger to the integrity of families.
II. Comments on certain provisions:
1.
Children
1.1. The right of children to
live with their parents is particularly foreseen in this proposal. Given the
various situations in the Member States, we had particularly welcomed the
clarification that considers as minors the children who have not reached the
particular Member State’s age of majority. We are now most concerned
about the possibility for a Member State to derogate from this principle in the
case of children aged over 12 years (Art 4 No 1 (c)). The right of minors to be
united with their family is also provided in the International Convention on
the Rights of the Child, and international law must take precedence over national
legislation and considerations of migration control. Only one Member State has
a legal provision to derogate from this principle at this point in time and has
ratified the Convention on the Rights of the Child with this reservation. All
other Member States have ratified it without reservations. Therefore, this
provision for derogation would have to be clearly referred to the one State,
not allowing others to follow this example.[4]
We regard this derogation as a breach of international standards.[5]
We appreciate that this is named as a priority for the future review.
1.2. We appreciate that the
present proposal now allows for admission of children under shared custody of
parents (Art. 4 No. 1 (c)), at least as optional with the agreement of
the other parent.
1.3. Although we agree to the
principles set out in Art. 4 No. 4, there may be a
contradiction to Art. 4 No. 1 (c): It ought to be the
privileged right of the parents to decide whether the child should live with
either of them. From practical experience, we would say that this applies to a
very small number of persons; therefore we feel it could be termed more
generously without fear of uncontrollable influx. There should remain no
difference in legal status between children of the uniting person, regardless of
their parents being married, unmarried, divorced or in a polygamous situation.
We consider it crucial to give opportunity to the minor to provide his or her
opinion.
1.4. If the age of the child is
a predominant criterion for family reunification, as set out in Art. 4 Nor. 1
(c), and as the duration for procedures are longer than originally foreseen,
clear formulations are necessary for cases where the children may reach
majority age during the waiting period until a decision is taken. In our
opinion, the age of the child at the time of the application for family
reunification should determine the eligibility. This is of particular
importance if the derogation clause is applied.
1.5. While we are aware, that
the concept of extended family is not so common in European countries, we would
wish to point to the fact, that in many countries children are – often as
a result of AIDS or civil war – raised by persons not belonging to their
own family, but considered to be part of the family they live in. While the
proposed directive would provide for adopted children, the above-mentioned
category is not included. We feel that some provision should be made for such
cases, e.g. in case of no other family link.
2. Family
2.1. While remaining optional,
we appreciate that the formulation in (Art. 4 No. 2 (a) and (b) for other
family members has improved and is no longer depending on full dependency but
rather the lack of family support in the country of origin. However, it is
still not in line with the interpretation of family by the European Court of
Human Rights[6]. As this
remains optional for Member States and is depending on the proof by the uniting
person that he/she has sufficient means to take care of his or her relatives,
we wish to argue that this conditionality is not at all necessary. Such
practices of family solidarity should not be prevented but rather promoted.
2.2. The same principle should
apply to unmarried children who have reached the majority age and who are
dependent on their parents, regardless of the reason for this. Art. 4 No. 2
(b) should therefore not be limited to the reason of the child's state of
health, which would be in coherence with the existing legislation concerning
the family reunification of EU nationals.
2.3. We regret that the
directive in its current form is unclear about the right to found a family: the
old Art. 2 (e) included under family reunification the right to form a
family community and is now omitted. We had
pointed out that even in the previous proposal the rights of the
fiancé(e) were not explicitly mentioned. We do not regard it as
sufficient to leave the situation of fiancée solely to the legislation
of the Member State. Without providing for the founding of the family, any
legal text on family reunification would be incomplete and incoherent. It would
even fall short of the general aims of the directive. In order to prevent
misuse, a trial period could be foreseen for these cases.
2.4. Given present debates
about marriages of third country nationals in some Member States, we would
recommend that Art. 4 No. 5 be formulated more clearly “to require a
minimum age below majority”. In the present form it could be understood
also as a possibility to require any age (such as 24 years). It is stated
clearly in the explanatory memorandum that this refers to an age of marriage
below majority age, but the Article could be interpreted differently.
3. Refugees
3.1. We appreciate that the
special needs for family reunification for refugees are recognised. We are
however concerned that Member States may confine the application to refugees
whose family relationships predate their refugee status. This stipulation does
not recognise families who may have married in a refugee camp or during an
asylum procedure. We wish to remind the Commission and the Council that as
refugees are sometimes for years in determination procedures, relationships
starting during this period need to be considered as important as predated
relationships. We cannot understand that refugee children born in a refugee
camp should not be entitled to family life. This could be a violation of the
right to found a family. It certainly is against humanitarian principles.
3.2. The exclusion from the
scope of the directive of persons enjoying a subsidiary form of protection (Art.
3 No. 2 (c) and Chapter V) is regrettable, as these persons deserve a particular
kind of protection. We trust that the Council will maintain standards proposed
by the Commission to accommodate special protection needs in the frame of rules
on family reunification that will be part of the harmonised concept regarding
the admission and residence of persons in need of subsidiary protection.
However, in the current proposal this is not contained. We would urge that
family reunification is included also for persons granted a residence on the
ground of subsidiary form of protection.
3.3. The humanitarian value of
accommodating other family members as provided in Art. 10 No. 2 has been
proved during the Kosovo crisis. In addition to the action undertaken by Member
States many refugees have been welcomed and taken care of by family members
already residing in one of the EU Member States.
3.4. The protection of
unaccompanied minors as provided for by Art. 10 No. 3 reflects the
particular attention these children deserve which is also outlined in the UN
Convention on children’s rights. This provision should be maintained and
complemented by a provision to the effect that the reunification of these
minors with their families should be treated as a matter of urgency and, to
this effect, the tracing of the family should be undertaken as soon as
possible.
4.
Residence permit
4.1.
The changes in Art. 15 No. 1 are logical. We support
the stipulations of Art. 15 to grant an autonomous residence permit for a
spouse and adult children.
4.2.
Art. 15 (3) is an important tool to
deal with injustices arising from certain situations. As it refers to extreme
hardships, we support that no minimum period is mentioned and hope that Member
States will apply this provision generously. We would appreciate if at least in
the explanatory memorandum, this could again be explained through examples like
divorce following violent or degrading treatment by the spouse. In such cases,
we would urge member states to provide for generous application of this clause.
5.
Equal Treatment
5.1.
We had supported the previous stipulation that family
members should have access to employment, education and training in the same
way as citizens of the Union. We do not follow the argument that equal
treatment within a family unit is more important than that of equal treatment
within society. In fact, we fear that even more persons could be excluded from
society and thus this stipulation could lead to disintegration rather than
integration. We cannot see any good reason to exclude families from gaining
self-sufficiency and access to education and training.
6. Conditions
and Procedures
6.1. We regard these conditions
which are now applicable to the core family, as extremely difficult. These
conditions place material conditions on a right which means that the poor among
the third country nationals may no longer be able to exercise it. While the
conditions in previous proposals could be understood with a wider family
definition and the fear of more influx, to maintain or even restrict conditions
for the core family could result in depriving particularly the poor from
fundamental human rights. This could be seen as a breach of Article 14 of the
European Convention on Human Rights, if the right to live in family unity is
depending on the available property or the status[7].
The universally recognised rights of the family should be a priority over
Member States’ budgetary concerns.
6.2. We regret that in Article
13 the former provision in Art. 11 to grant visa to family
members free of charges has been omitted. With regard to Art. 13 (2), we would ask
for more clarification with regard to children reaching the age of majority
during such a period. They should not lose their right to stay with their
family, if their residence permit has been issued for only one year.
6.3. We are aware that the
conditions outlined in Art. 7 are a very difficult sphere due to the very
different present regulations in Member States. However, we would urge that
these conditions should be valid and proven at the time of application. If a
person cannot meet them at a later stage of the procedure, this should not be
to the disadvantage of the family.
6.4. We regret the changes made
in Art. 7, 1 (a), which in the criteria of accommodation to be proved
reintroduce the concept of “normal accommodation”, thus making them
once again difficult to measure. The European Parliament’s formulation in
this respect has been more objective. We would also still recommend that Art.
7, 1 (b) is complemented by the obligation to provide access to affordable
insurance schemes.
6.5. As long as sufficient
means are a prerequisite to family reunification (see above, point 2.1.) we cannot
see any good reason for a waiting period of now even up to three
years in which persons are deprived of their right to family life. A waiting
period of two years (derogation even three years) with an additional
administrative procedure of up to one year could lead to a waiting period of
3-4 years which can cause serious damage to family life. From social
experience, separation often leads to estrangement and break-up of families. In
order to secure the values of family communities, we regard it as of utmost
importance to let the family unite as quickly as possible. Particularly for
minor children such a long period is intolerable.
6.6. While we have no
objections to the exclusion from family reunification based on grounds of
national security and public order (Art. 6) given the entire context
of the current proposal, we consider that reasons of health should not be
invoked to deny the right to family reunification. We also wish to underline
that the public order and domestic security reasons eventually given for a
rejection would have to be specified. In any case, the principle of
proportionality is of utmost importance in this context.
6.7. With regard to Art. 16 No.
1 (a), a time limit should be introduced. If a person entitled to family
reunification, having reunited with the family after three years becomes
unemployed after one year, he or she has in most cases been working and paying
social security for four years. If he or she is entitled to unemployment benefits
not sufficient to sustain the family, the family should still have a right to
stay and not be sent back.
6.8. In our opinion, Member
States may undertake specific checks as stipulated in Art. 16 No 4 only in case of well
founded suspicion. A legal clarification along this line would assure the
protection of the universally recognised respect for privacy and family life
(Art. 8 (1) European Convention of Human Rights). While the wording for the
cases of fraud is acceptable, we are concerned of the checks in the case of
stipulation Art. 16 No 1 (b) and (c).
6.9. We consider the right of
appeal as provided for in Art. 18 of great importance.
However, this right would be incomplete – and also meaningless - without
the explicit statement of a suspensive effect for this appeal.
We once again would like
to underline that as "minimum standard for the right to family
reunification" the directive should not exclude more generous regulations
existing in most Member States. Therefore, the standstill clause constitutes an
essential element of this directive.
In conclusion we wish to recall that the Council of Europe’s
Committee of Minister adopted Recommendation Rec(2002)4 on the legal status of
persons admitted for family reunification. This recommendation provides important
guidelines for the rights and status granted to family members. We would like
to urge the European Parliament and the Council of Justice and Home Affairs
Ministers to negotiate this directive with an understanding of fostering family
life of third country nationals.
December 2002
[1] Proposal for a
Council Directive on the right to family reunification [COM (1999) 638 final]
and [COM (2000) 624 final] respectively
[2] e.g. Sen c/ Netherlands, No. 31465/96,
Judgement of the European Court for Human Rights 21 December 2001.
[3] COM (2001) 510
final
[4] Research by
JRS Germany proves that one reason for illegal immigration is the legitimate
interest to create a family unit.
[5] See the
Judgement of the European Court for Human Rights of 21 December 2001, Sen c/
Netherlands (No. 31465/96). The Human Rights Court regards the provisions by
the Netherlands to prohibit reunification as a contravention of Art. 8 of the
European Convention on Human Rights.
[6] See: Frowein/Peukert, EMRK-Kommentar,
1996, p. 422
[7] It certainly
contravenes Art. 9 of the International Covenant on Economic, Social and
Cultural Rights.