The right to family reunification within the European Union

Author:Ioana Nicolae
Position:Phd, University Professor, Transylvania University of Brasov Law school
Pages:80-87
SUMMARY

The protection of family within the European Union is closely connected with the free circulation of people as the conditions in which the right to reunite families can be exercised are mainly established, by the 2003/86/CE Directive, this being the main legal instrument regarding migration in the European Union. Although authorizing the reunification of family is the general rule, there are some exceptions, which reflect the appreciation margin provided to the member states; however this margin must not be used in such a manner as to interfere with the objective and declared effect of the Directive.

 
CONTENT
80 IOANA NICOLAE
EUROPEAN UNION LAW
THE RIGHT TO FAMILY REUNIFICATION WITHIN
THE EUROPEAN UNION
University Professor Ioana NICOLAE, Phd
Transylvania University of Braşov
Law school
Abstract
The protection of family within the European Union is closely connected with the free
circulation of people as the conditions in which the right to reunite families can be exercised are
mainly established, by the 2003/86/CE Directive, this being the main legal instrument regarding
migration in the European Union. Although authorizing the reunification of family is the general
rule, there are some exceptions, which reflect the appreciation margin provided to the member states;
however this margin must not be used in such a manner as to interfere with the objective and
declared effect of the Directive.
Key words: family, migration, family reunification, private and family life.
1. Introductory aspects regarding the principle of protecting family
On a national level, the principle of protecting family is a constitutional one, as
stated in article 26 of our fundamental law as such: “public authorities respect and
protect intimate life, family life and private life”. Also, the Civil Code regulates in
article 258 second and third alignment the following: „ (2) Family is entitled to
protection from society and from the state. (3) The state is obliged to support, by
economical and social measures, marriage and the development and strengthening
of family”.
On an international level, the relevant information in this context is that of article
8 of the European Convention on Human Rights, according to which: “1. Everyone
has the right to respect for his private and family life, his home and his
correspondence. 2. There shall be no interference by a public authority with the
exercise of this right such as is in accordance with the law and is necessary in a
Law Review vol. VI, issue 2, Jul
y
-December 2016, p. 80-87
The right to family reunification within the European Union 81
democratic society in the interests of national security, public safety of the economic
wellbeing of the country, for the prevention of disorder or crime, for the protection
of health and morals, or for the protection of the rights and freedoms of others”.
Thus, although the state has a sovereign right to regulate by law its own legal
regime for foreigners on its territory, this will be achieved by respecting the
fundamental right stated by article 8 of the European Convention on Human
Rights1. For example, the exclusion of a person from a state where close members
of his family live is a violation of the right to respect of family life, as guaranteed
by article 8 of the Convention. This is why, in the case Sen versus The
Netherlands2, The Strasbourg Court pointed out the principles which apply to the
reunification of family:
„a) The extent of the obligation of the member state to allow the relatives of
migrants on its territory depends on the specific situation and general interest.
b) In accordance with a well known international principle, states are entitled,
without impairing on its obligations which result from international treaties, to
control the admission of foreigners on their territory.
c) In the matter of immigration, article 8 can’t be interpreted as imposing a
general obligation to respect free choice by of residence by married couples and to
allow the reunification of family on its territory”.
In order to determine the nature of obligations imposed on member states by
article 8 of the European Convention on Human Rights, we will analyze specialty
doctrine3, which states that the obligations imposed on member states are both
negative as is “the obligation to not restrict the exercise of these rights by their
holders”, thus, “the exclusion of any arbitrary interference of public power in
exercising the prerogatives which ensure the content of this right”, but also
positive obligations, “inherent to the ensuring of the effective right to private and
family life, which can involve the need to regulate measures which will protect
private life”.
Within the European Union, the respect of private and family life is regulated
by article 7 of the Charter of Fundamental Rights of the European Union as
follows: “Everyone has the right to respect for his or her private and family life,
home and communications”. Also, we can discuss certain provisions of secondary
law which contain precise obligations for member states, with corresponding
subjective rights.
1 Similar provisions as stated by the High Court of Justice, in decision no 2224/14.06.2006, in
„Pandectele Române” Magazine no 2/30.03.2007.
2 Case quoted by the Court of Justice of the European Union in its Decision of June 27th, 2006 in
C-540/03 – European Parliament versus the Council of the European Union, ECLI:EU:C:2005:517.
3 C. Bîrsan, The European Convention on Human Rights. Comments by articles. Volume I. Rights and
freedoms, All Beck Publishing House, Bucharest, 2005, pages 594-595.
82 IOANA NICOLAE
2. The European legal background regarding the right to family reunification
The measures contained in the 2003/886/CE Council Directive4 of
September 22nd, 2003 regarding the right to family reunification are in accordance
with the obligation to protect family and respect family life5. The preamble of the
Directive states the following:
- “family reunification is a necessary way of making family life possible. It
helps to create socio cultural stability facilitating the integration of third country
nationals in the member state, which also serves to promote economic and social
cohesion, a fundamental community objective stated in the Treaty”;
- “to protect the family and establish or preserve family life, the material
conditions for exercising the right to family reunification should be determined on
the basis of common criteria”;
- “it is for the member states to decide whether they wish to authorize family
reunification for relatives in the direct ascending line, adult unmarried children,
unmarried or registered partners as well as, in the event of a polygamous
marriage, minor children of a further spouse and the sponsor. Where a member
state authorizes family reunification of these persons, this is without prejudice of
the possibility, for member states which do not recognize 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 relevant EC legislation”.
As stated by the Directive6, «„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”.
3. The categories of people who benefit from the right to family reunification
According to article 4 first alignment of the Directive, reunification of family
regards the following members of the family:
- the sponsor's spouse;
- 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 recognized in accordance
with international obligations;
4 JO L 251, 3.10.2003, pages 12-18.
5 This Directive has, as stated in article 1, as an objective „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”.
6 Article 2 letter d of the Directive.
The right to family reunification within the European Union 83
- 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 authorize the reunification of children of whom custody is shared, provided
the other party sharing custody has given his or her agreement;
In regard to minor children, the Directive states that they must be below the
age of majority set by the law of the member state concerned and must not be
married.
An important exception in regard to children is that according to which
“where a child is aged over 12 years and arrives independently from the rest of
his/her family, the member state may, before authorizing 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 implementation of the present
Directive”.
According to article 4 second and third alignment of the Directive, member
states can by law or regulation, authorize 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:
- 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;
- 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;
- 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 regard to the statute of “dependent” family member, by considering the
jurisprudence of the Luxembourg Court, it was concluded7 that this statute is the
result of a situation characterized by the material support effectively offered,
regardless of establishing a right to be provided for.
The relevant provisions are those of the case C-1/058: “also, as stated by the
Court, the quality of dependent family member does not entail the right to food, as
this would make that certain statute dependent on national laws, which are different
from one state to the other (the previously quoted Lebon decision, point 21).
It is the opinion of the court that it is not necessary to determine the reasons for
this support, but the question which should be asked is whether the interested
7 For this C. I. Casian, The impact of free circulation of people on family, in Private Law Magazine
2/28.02.2011, article consulted in iDrept database.
8 In this case, Mrs. Jia, a Chinese citizen, has requested a residence pass form Swedish authorities,
considering she was a relative of a citizen of a member states. Namely, she claimed she is the mother
of a community citizen and is financially dependent on her son who lives in Sweden with his wife.
Mrs. Jia’s application was denied as the financial dependence was not sufficiently proved.
84 IOANA NICOLAE
party can handle its needs by performing a paid activity. This interpretation is
mainly imposed by the principle according to which the provisions which regulate
the free circulation of workers, as part of the fundamental rights of the
Community, must be broadly interpreted (the previously quoted Lebon decision,
points 22 and 23).
In order to establish if the ascendants of the spouse of a third member state are
dependent, the host member state must appreciate whether, given their material
and social conditions, they are able to handle their own fundamental needs. The
necessity of material support must exist in the originating state at the time
reunification is requested”.
An important provision is meant to prevent forced marriages and ensure
better integration, as stated in article 4 sixth alignment of the Directive according to
which member states may request that the sponsor of reunification and the spouse
are of a minimum age, which can’t be over 21, before the spouse can reunite with
the sponsor of the reunification.
In regard to article 4 first alignment, last paragraph, article 4 sixth and eighth
alignment of the Directive, we must mention that the European Parliament has
filed a motion against the Council9, stating that these provisions can restrict in
some cases the right to family reunifications thus impairing on the right to respect
of family life and the principle of non discrimination.
By the decision made in this case, the Court of Justice of the European Union
has ruled that these provisions are not contrary to the fundamental right to respect
of family life, the supreme interest of the child or the principle of non
discrimination based on age.
4. The conditions under which the right to family reunification can be
exercised
The Directive stated the conditions in which the right to family reunification
can be exercised. Thus, by considering the provisions of article 7 of the directive,
when the application for family reunification is submitted, the member state
concerned may require the person who has submitted the application to provide
evidence that the sponsor has:
- 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;
- 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;
9 Case C-540/03 was ruled on by the Court of Justice of the European Union
The right to family reunification within the European Union 85
- 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.
In interpreting and enforcing this final condition, the European Union Court of
Justice has stated10 that article 7 first alignment letter c of the Directive must be
interpreted as “although member states have the possibility to request proof that
the sponsor of reunification has stable, regular and sufficient resources in order to
provide for himself and the other members of his family, this possibility must be
exercised considering the provisions of article 7 and article 24 alignment 2 and 3 of
the Charter of Fundamental Rights of the European Union, which require member
states to examine the applications for family reunification in the interest of the
children it involves and also with the purpose of supporting family life, as well as
avoiding to impair on the objective of this directive, as well as its useful effect. The
court must verify whether the decisions by which residence passes are denied
respected these demands”.
On the other hand, in accordance with jurisprudence of the Court of Justice of
the European Union, article 7 first alignment letter c of the Directive must be
interpreted as “allowing competent authorities of a member state to deny an
application for family reunification on a prospective evaluation of the probability
of improbability on maintaining stable, constant and sufficient resources which the
sponsor of reunification must have in order to support himself and the other
members of his family without resource to the social assistance system of the
member state the following year after the application was submitted, as this
evaluation is based on the evolution of incomes of the sponsor of reunification in
the six months previous to this date”.
According to article 7 second alignment of the Directive, “Member States may
require third country nationals to comply with integration measures, in accordance
with national law”.
In order to enforce these provisions, the Court of Justice of the European
Union11 has ruled that “member states can demand the results of a civic integration
10 Court decision (Second chamber) of December 6th, 2012 in the joint cases C-356/11 şi
C-357/11, ECLI:EU:C:2012:776; these two joint cases regard two trials between third country nationals
and the Immigration Office of a member state, which denied their residence pass, because of lack of
sufficient material resources.
11 Court decision (Second chamber) of July 9th, 2015 in case C-153/14, ECLI:EU:C:2015:453; in
this case, an Azerbaijani citizen filed a request for temporary residence pass with the Dutch embassy
in Ankara – Turkey, based on the right to family reunification. To support his application, he
submitted a medical record claiming that because of the health issues stated in the medical certificate,
86 IOANA NICOLAE
exam, as discussed in the main litigation, containing the evaluation of elementary
knowledge of the language and society of the member state and which entails
certain expenses before authorizing entrance and residence on their territory with
the purpose of family reunification, if the conditions of such an obligation do not
make the exercising of this right impossible or excessively difficult. In
circumstances similar to those of the main cause, these conditions, to the extent in
which they do not allow the consideration of particular circumstances which
objectively prevent the interested parties from passing this exam and to the extent
to which these expenses are not too high, do not make impossible or excessively
difficult the exercising of the right to family reunification”.
Also, based on article 8 of the Directive, member states may require the
sponsor to have stayed lawfully in their territory for a period not exceeding two
years, before having his/her family members join him/her; they 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.
Other conditions for exercising the right to family reunification are those
regarding public order, public health, as article 6 of the Directive states that
member states may reject an application for entry and residence of family
members on grounds of public policy, public security or public health.
Lastly, article 17 of the Directive states that member states shall take due
account of the nature and solidity of the person's family relationships and the
duration of his residence in the member state and of the existence of family,
cultural and social ties with his/her country of origin where they reject an
application criteria which corresponds to those of the European Court of Human
Rights,
5. In conclusion
According to article 21 of the Treaty on the functioning of the European Union
“Every citizen of the Union shall have the right to move and reside freely within
the territory of the member states, subject to the limitations and conditions laid
down in the Treaties and by the measures adopted to give them effect”. This right
is acknowledged to the family members of the citizen of the European Union.
The protection of family in the European Union is closely connected with the
free circulation of people. The conditions in which the right to family reunification
is exercised are mainly established by Directive 2003/86/CE, as this is the main
he would be unable to pass the civic integration exam. As a result, his application was denied, the
main reason being that his health issues were not a reason which would absolve him from his
obligation of passing the civic integration exam.
The right to family reunification within the European Union 87
legislative instrument regarding the legal migration within the European Union. In
interpreting and enforcing the provisions of this Directive a rich jurisprudence of
the Justice Court of the European Union became available, which was quoted
within this research.
Although the authorization of family reunification is the general rule, we
exemplified a few exceptions which reflect the margin of appreciation given to the
member states, a margin which must not be used in a way which would impair on
the objective and useful effect of the Directive.