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EU on right to family reunification for immigrants

European rules on the right to family reunification for immigrants: the deadline for implementation of the Directive expires today

Directive 2003/86/EC, setting out the rules by which third-country nationals legally residing in one of the Member States may apply for their family members to join them in the Member State of their residence, was adopted on 22 September 2003. According to Article 20 of the Directive, “Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this [act] by not later than 3 October 2005. They shall forthwith inform the Commission thereof.”

Until now only 6 Member States (Belgium, Estonia, Latvia, Lithuania, Poland and Slovenia) have notified their implementing measures to the Commission. Three Member States (Denmark, Ireland and United Kingdom) are not bound by its provisions. With regards to the other 16 Member States who have not notified any implementing measures yet, the Commission will take appropriate procedural steps according to its power conferred by Article 226 of the Treaty establishing the European Community.

For the past twenty years family reunification has been one of the main sources of immigration to the European union. Family reunification measures are not only a way of bringing families back together, but they are also essential to facilitate the integration of third country nationals into the Eu.

The Directive applies to sponsors holding a residence permit issued by a Member State for at least one year or more who have reasonable prospects of obtaining the right of permanent residence. Sponsors cannot be asylum seekers nor persons seeking or being granted temporary or subsidiary protection.

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According to the Directive, family members entitled to join the sponsor are at least: the sponsor’s spouse and minor children of sponsor or spouse or both; as well as parents in case the sponsor is a minor recognised refugee. Furthermore Member States may include, as family members, dependent parents and unmarried adult children of the sponsor or his/her spouse, as well as an unmarried partner of the sponsor. If the sponsor is a recognised refugee, further family members may be allowed to join him/her. The reunification of only one spouse is permitted and children of further spouses may be refused to join the sponsor. Children aged over 12 years arriving independently from the rest of their families may have to prove whether they meet integration conditions required by the legislation of a Member State (not applicable if the sponsor is a refugee). Children older than 15 years at the day of the application may be required by a Member State to join the sponsor on grounds other than family reunification.

In order to exercise the right to family reunification, fulfilment of the following conditions may be required from the sponsor: normal accommodation; sickness insurance for him/her and family members; stable and regular resources; two years of residence before the family joins him/her. Member States may also require third-country nationals to comply with integration measures, as well as postpone the family reunification for up to three years owing to their reception capacities.

These conditions do not apply if the sponsor is a refugee. The entry and residence of family members may, however, in any case be refused on grounds of public policy, security and health.

The Directive prescribes also some procedural rules concerning the treatment of applications for family reunifications, such as length of the procedure, type of evidences accepted (not applicable if the sponsor is a refugee), place of application, elements of a decision as well as the way of its notification, right to mount a legal challenge.

Once the application is accepted, Member States grant every facility for obtaining a visa by family members as well as they guarantee them certain rights i.e. residence permit, access to education, employment and self-employed activity, vocational training. Furthermore, after five years of residence, family members are entitled to acquire an autonomous residence permit in the Member State of their residence.

Finally, according to the act, the right to family reunion may be refused or no longer renewed if the conditions for granting the right are no longer fulfilled or in the case of fraud, marriage of convenience, breech of family relationships or the end of sponsor’s residence.

Member States are allowed to grant family reunification under more favourable provisions compatible with the Directive. However, they cannot grant this right under more restrictive conditions than those provided for by the Directive.

At the present moment case no C-540/03, which was introduced by the European Parliament, is pending before the European Court of Justice, where some provisions of the Directive were attacked (Article 4(1) last indent, Article 4(6) and Article 8). The report of the Advocate General was issued on the 8 September 2005, in which it is suggested to declare the case inadmissible. The judgement of the Court is expected to be pronounced in the following.

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