The Alternative Scoreboard for EU Immigration and Asylum Law : Human Rights and Basic Principles

Response to

  the European Commission’s  Proposal

 for a Directive on the Right to Family Reunification[1]

Scoreboarding is a technique which the Community uses to track the implementation by the member States of Community legislation in a specific field.  It is also used by NGOs to assess compliance with standards.  The Commission has announced that in the field of Justice and Home Affairs it will be using the technique to keep track of the adoption of measures as required according to the timetables of the Amsterdam Treaty and the joint Commission/Council Work Programme.  We consider that it is appropriate to use the technique as well as regards Justice and Home Affairs activities of the Community – but with a different emphasis: compliance with the Community’s human rights standards and its own undertakings to its citizens and residents.

We are starting our scoreboarding with the flagship proposal of the Commission in the field so far: its proposal for a Directive on the right to family reunification.

Overview of the Family Reunion Proposal’s Score

The Commission’s proposed directive on family reunion builds upon international standards in the area but risks resulting in a reduction of current rights for third country nationals under national law of some Member States.  In addition, it reinforces discrimination against third country nationals in Community law by creating a family reunion regime applicable only to third country nationals and very substantially less favourable to the individual than that which Community law guarantees for its own national migrant workers.

On ILPA’s Alternative Scoreboard, the directive should be ranked as follows:

1) Compliance with the European Convention on Human Rights                  6/10

2) Compliance with other international treaties                                               7/10

3) Compliance with principles of EU migration and asylum policy                2/10

4) Safeguarding and strengthening rights at national level                            2/10

 

Total                                                                                                                17/40

 

This response to the Commission’s proposal is comprised of the following sections:

Detailed comments

Article 8 ECHR requires the Member States to respect the private and family life of everyone within its jurisdiction subject to exceptions which are listed.  Article 14 ECHR requires that there be no discrimination in the protection of the rights contained in the ECHR.  We have looked at the jurisprudence of the European Court of Human Rights on both points and have come to the following conclusion about the proposed Directive:

Articles 8 and 14 ECHR can clearly protect a right to family reunification, although the limitation clause, Article 8(2) ECHR, lists a number of exceptions where public authorities might be able to justify infringing the right to private and family life for such reasons as “public safety” or “prevention of disorder or crime.” In this connection, the European Court of Human Rights has stated in a number of cases that a careful balance must be drawn between state interests and the protection of family life. While most of these decisions have concerned expulsion from the territory of a state, they can also be clearly applied to entry, particularly in those circumstances where family life cannot be established elsewhere. Although the Commission’s proposed Directive recognises the need to ensure conformity with the obligation to protect and respect family life under ECHR, it makes no attempt to seriously take account of the ramifications of this case law.

It is probable, though, that the wider concept of family as developed in ECHR Article 8 jurisprudence will also give rise to a more generous understanding of family reunion in an appropriate case.

While the jurisprudence of the European Court of Human Rights has previously accepted that discrimination between third-country nationals and EC nationals who have moved within the Community as regards expulsion of family members is justified because the European Community has created a distinct legal order (Moustaquim v Belgium; C v Belgium), more recent case law surely casts doubt on this conclusion.  In Matthews v UK, as reiterated in the admissibility decision in TI v UK, the Human Rights Court ruled that Member States' participation in the Community or in other international legal obligations did not exempt them from observing their obligations under the ECHR.  The benefit of the ECHR rights accrue to the individual and it is the member State of the Council of Europe party to the ECHR which is under the duty to ensure compliance. The 'special' status of the Community must therefore be in doubt.

The Commission’s proposal for a Directive on family reunification compares favourably with most relevant international human rights standards from the perspective of the rights, if any, which exist to protect family reunification and the persons who can enter the territory of a state in order to join their family members who work and reside there.

A number of prominent universal and regional international human rights instruments, such as the Universal Declaration of Human Rights, the two Human Rights Covenants and t he European Social Charter, contain comparable clauses recognising that the family is the “fundamental group unit of society” (see Annex 1 – Section 1), but they are not elaborated by any provisions advocating specifically that family reunification should be recognised as a right or at least a qualified right. Similarly, rights to private and family life contain no explicit references to family reunification (see Annex 1 – Section 2). The only major international instruments that refer to family reunification are the Convention on the Rights of the Child and the Geneva Convention relating to the Status of Refugees (in the Final Act of the 1951 Conference appended to the treaty). Although specific state obligations relating to family reunification are found in specialized international and regional instruments concerned with the protection of migrant workers, such as relevant ILO Conventions and Recommendations, the UN Convention on Migrant Workers (which has not yet entered into force), the Council of Europe Convention on the Legal Status of Migrant Workers and the European Social Charter (Article 19), none of these provisions are phrased in terms of rights and contain relatively weak state obligations (see Annex 1 – Section 4).

With regard to the persons who can be considered to be the subjects of family reunification, the categories that exist are more limited on the whole than the definition adopted in the proposed Directive and are confined, at least in specific European instruments, to the spouse and minor (unmarried) dependent children (see Annex 1 – Section 3) Indeed, states have recently endeavoured to lower standards in this area. For example, the understanding of children for the purpose of family reunification in the European Social Charter to mean “dependent children under the age of 21 years” has become more restrictive in the revised version of this instrument applying only to minor dependent children.

·         Basic Principles of EU migration and asylum policy

The Conclusions of the EU leaders’ summit in Tampere, Finland in October 1999 identify four aims and objectives governing migration policy, namely:

(1)               The development of a common approach to ensure the integration into the EU of those third country nationals who are residing lawfully in the Union.  In particular:

a)                  A more vigorous integration policy granting third country nationals the rights and objectives comparable to those of EU citizens, with long-term residents given an equal status with EU citizens as far as possible; and

b)                  A need for approximation of national legislation on the conditions for admission and residence of third country nationals.

(2)               Decisions should take into account not only reception capacity of each Member State but also historical and cultural links with countries of origin.

(3)               Third country nationals must be offered the opportunity to obtain nationality of Member States in which they are resident.

The aim of granting to Europe’s third country nationals rights comparable to those of EU citizens is not respected by the proposal.  The Commission intends to intensify differences of treatment between these two categories by the proposed extension of the family reunion rights contained in Regulation 1612/68 EEC to all EU citizens, irrespective of whether they have exercised Treaty rights.  This means that all EU nationals will have the right to family reunion with spouses, dependent children of any age, dependent relatives in the ascending and descending lines without any financial requirement or other obstacles.  Third country nationals, however, as regulated by this proposal, would be entitled to a more limited group of family members, for instance dependent children over the age of majority and other dependent relatives in the ascending and descending lines are in principle excluded unless they have no other means of family support in the country of origin (ascending line Article 5(1)(d)) or objectively unable to satisfy their needs by reason of their state of health (adult children Article 5(1)(e)).  Further they would be subject to financial requirements and a level of discretion left to the national authority far beyond that which would apply to Community nationals.  Thus the proposal fails entirely to provide rights of Europe’s third country nationals which approximate those of EU nationals.

The proposal contains a significant number of areas where the rights to family reunion inferior to those given to EU citizens.  In addition, the Member States’ discretion is extended to other important areas for example in relation to the situation for unmarried couples (Article 5 (1)(a)), and the reasons for rejecting an application (Article 14).  As such, the directive falls short of achieving harmonisation and equality. 

ILPA has serious concerns about the members of the family who can benefit from the family reunion right.  The proposal seeks to exclude, for example, overage children, those who are not the sole responsibility of the third country national family member and those who are married.  Dependant parents would also have to demonstrate that they have no other visible means of support in their own country. 

There is a wide discretion given to Member States as to the criteria to be applied to applicants for family reunion.  For example, Member States can require a third country national to complete anything up to one year’s residence in the State before considering any family reunion application.  As to the rights of the family members who have joined the third country national, we are concerned that access to education, employment and vocational training on an equal footing with EU citizens are limited to spouses and children under the age of majority.  Other family members, such as parents or siblings, are excluded.  In our view, it is not difficult to envisage circumstances in which such exclusions could constitute an infringement of fundamental rights.  For example, if a sibling’s dependency arose because of illness or disability which was untreatable or uncorrectable in the country of origin, but which in the country of settlement could be dealt with through medical treatment, therapy or special occupational training, it might be judged to be unreasonable to withhold from family members the benefits of such treatment.  Occasions might well arise when national authorities implementing such policies might be vulnerable to complaints on discrimination on grounds of age or disability. 

·         Safeguarding and strengthening rights at national level

The Commission’s proposal raises serious problems as regards the protection of existing higher standards.  It lacks two fundamental provisions:

(i)                  A standstill clause to protect higher national standards and prevent any reduction in rights of third country nationals in this field on the basis of collective EU pressure to reduce to a lowest common denominator;

(ii)                A provision permitting national provisions to be adopted with give greater rights to family reunification to third country nationals. 

In our view this proposal should be adopted as a minimum threshold only. The failure of the draft to make such an allowance may well cause substantial problems.  For example, the proposal does not permit Member States to apply higher standards in national law even where they result from pre-existing agreements with third countries, the Council of Europe Migrant Workers’ Convention, or Article 19 of the Council of Europe Social Charter (Article 3(4)).  It also gives Member States a discretion to impose accommodation requirements or waiting periods (Articles 9 and 10).  However, it prevents Member States from applying higher standards in all other cases.  For example as currently draft the proposal would have the following effect:

a)                  Member States would not be allowed to permit or facilitate admission, or even allow admission on a discretionary basis, to family members other than those listed in Article 5(1), except for the facilitation of other dependent family members of refugees and persons enjoying subsidiary protection (Article 5(4));

b)                  Member States would not be allowed to permit or facilitate, even on a discretionary basis, the admission of family members of unaccompanied minors (Article 6);

c)                  Member States would not be allowed to accept applications within their territory where the family members are already resident there (Article 7(1));

d)                  Member States would not be allowed to grant equal treatment in employment and vocational training to relatives in the ascending line or to children of full age (Article 12(2)); and

e)                  Member States would not be allowed to grant a right to autonomous residence before four years (Article 13(1)), or a right to separate status in emergency circumstances before one year (Article 13(3)).

The fifth restriction is particularly important, since it would not simply restrict national discretion to adopt higher standards in future, but would also amount to a restriction of existing national law in several Member States.

In any event, Member States may use the occasion of agreement on the directive to ‘level down’ their existing level of protection to that provided for in the directive, even where it does not compel them to (as regards waiting periods and conditions for admission, for instance).  For that reason, it is essential that the Directive contain a ‘standstill’ clause.

·         Conclusions

The Commission has clearly made some efforts to achieve a standard of family reunion rights which does not offend the ECHR.  It has been less careful to ensure compliance with other human rights obligations such as the European Social Charter.  It has failed completely to ensure equality of treatment for Europe’s long resident third country nationals with Community nationals as regards family reunion rights.  It has institutionalised discrimination against third country nationals even in the proposal itself by providing that Community nationals who have not exercised a free movement right will be entitled to the stronger family reunion rights which apply to Community nationals who have moved while setting out in the same document a substantially lower level of rights of third country nationals as regards family reunion.

The Commission has not taken into account the genuine concern of some Member States to preserve better treatment for their third country nationals in this field and instead of preparing the Directive as one of minimum standards has presented compulsory maximum standards.  It has also failed to protect the existing position of third country nationals against downwards pressure.  In particular, it has failed to include a standstill clause to ensure that more generous treatment which exists in the national law in most Member States (though as regards different aspects) cannot be eroded on the basis that worse treatment is now the Community norm – a situation which is all too likely to become a self-fulfilling prophesy. 


Proposed Amendments to the Directive

Necessary amendments to the proposed directive:

1)                  Clause 4 of the preamble should be amended to read:

‘…of its Member States and that long-term resident third-country nationals should have a set of uniform rights which are as near as possible to those enjoyed by EU citizens;’

The Commission’s proposal does not recognize the full extent of the equality rights which the Tampere European Council wished to guarantee for third-country nationals. 

2)                  Article 3(1)(a) should be amended to read:

‘for a period of no less than one year or for successive periods of less than one year that amount to more than one year in total’.

This amendment would provide for the situation of persons whose permits are renewed for short periods, in particular for one-year periods, since such persons may be residing for a lengthy period in a Member State and are entitled to expect the continuation of family life during that period.  In particular, students and employees initially admitted for residence are often given renewable one-year permits.  The directive assumes that it is applicable to students (Article 5(5)) but in practice many of them will fall outside its scope without this amendment.

3)                  Article 3(2)(a) should be deleted. 

Since the UNHCR Handbook declares that Convention refugee status is declaratory, not constitutive, there are no grounds for treating family members of asylum applicants on a worse footing than family members of recognized Convention refugees. 

If this clause is retained, it should be amended in two ways to limit its effect:

a)                  first, it should note expressly that it is without prejudice to the ability of such family members to apply for recognition of Convention refugee status in their own name; and

b)                  second, it should only exclude persons ‘whose application has not yet given rise to a positive decision’.  This change would confirm that family members must be admitted while a national authority is appealing against a decision of a competent authority or a court or tribunal to recognize Convention refugee status. 

4)                  Article 3(4)(a) should be amended to read:

‘between the Member States, the Community or the Community and its Member States and non-member countries [words deleted]; or ’

This preserves the validity of prior agreements signed by the Member States other than those mentioned in Article 3(4)(b) (such as the European Convention on Establishment, which might limit expulsion of family members who have resided for long periods).  It also preserves the Member States’ ability to sign separate treaties with third states that are compatible with this Directive, as recognized in a Declaration to the Final Act of the Amsterdam Treaty.  Finally, it leaves the EC or the EC and Member States together free to agree treaties with third states with higher standards, such as the recent agreement with Switzerland.

5)                  An Article 3(4)(c) should be added, reading as follows:

(c)        a Member State’s national law applying higher standards to the benefit of the third country national  than this Directive.

This would recognize the competence of the Member States to provide better treatment than the minimum standard permitted in the Directive.  This is in accordance with the usual approach of international human rights treaties, with the wording of Article 63 EC, and with Community practice in many areas, including environmental, social, consumer and even much internal market law. 

6)                  An Article 3a should be inserted, to read:

Member States shall not reduce the protection which they provide for family reunion at the date of entry into force of this Directive.

This ‘standstill’ will make sure that there is no ‘race to the bottom’ towards the standards set by the Directive.

7)                  Article 4 should be amended to read:

‘By way of derogation from this directive, the family reunification of third-country nationals who are family members of a long-term resident of the European Union or of a Union citizen…’

This would put long-term residents of the Union on an equal footing with EU citizens, as expressly called for at the Tampere European Council.  The definition of ‘long-term resident’ can either be left to national law for the present, or agreed in this directive as a step toward agreeing a separate measure on the status of long-term residents.  The effect of this change would be that existing EC rules on EU citizens would apply to long-term residents, not this proposal, in particular Articles 5 and 7(1) or Chapter IV. 

8)                  Article 5(4) should be amended to read:

‘[words deleted] The Member States shall facilitate the reunification of other family members not referred to in paragraph 1, if they are dependent on the applicant’. 

This amendment would recognize that short-term family members may also wish to maintain dependent family members outside the nuclear family within their household.  In particular, it would recognize the traditions of minority groups within the Community which have a wider concept of ‘family’ than practiced by the majority.

9)                  Article 6 should be replaced by the following text:

      If the refugee or person enjoying subsidiary protection is an unaccompanied minor, the Member States shall authorise the entry and residence for the purpose of family reunification of:

(a)               his or her siblings, by way of derogation from Article 5;

(b)               his or her relatives in the ascending line, without applying the conditions provided for by Article 5(1)(d); or

(c)               his or her other family members not referred to in sub-paragraph (a) or Article 5, where the minor has no relatives in the ascending line or such relatives cannot be traced.

This amendment would make the text easier to read and would also make three substantive changes.  First, it would place unaccompanied minors with subsidiary protection on the same footing as refugees, as in the rest of the proposal.  Second, it would require, not simply permit, Member States to admit the minor’s family members.  This is necessary because an unaccompanied minor refugee has no other prospects of reunion with his or her family as long as the situation that led to the minor’s refugee status exists.  Third, it would require Member States to admit the minor’s siblings, who would otherwise not necessarily be admitted as the proposed Directive now stands. 

10)              (a)        The last sentence of Article 7(1) should be amended to read:

‘is outside the territory of the Member State or is legally present in that Member State’; and

(b)        Article 7(2) should be amended to read:

            ‘…the relevant Member State may examine an application deposited when the family member is present in its territory without authorization,…’

There is no reason to require persons to remain outside the Member States before admission for family reunion.  Therefore Article 7(1) should allow persons to apply from within a Member State if they are legally present, and Article 7(2) should allow consideration of applications by persons who are present without authorization in special circumstances.

11)       The present Articles 8(1) to 8(3) should be replaced by the following wording:

‘Without prejudice to Articles 9 and 10, expulsion and refusal of entry of family members is governed mutatis mutandis by Council Directive 64/221’. 

This gives effect to the agreement at the Tampere European Council to treat third-country nationals on a footing with equality of EC nationals as far as possible, in particular to grant them an equal ‘right of residence’.

12)       A new Article 8(5) (to become Article 8(2) in light of amendment 10) should be added, to read:

            ‘Paragraphs 1 to 4 are without prejudice to the Geneva Convention on the Status of Refugees and its Protocol, Article 3 of the European Convention on Human Rights, Article 3 of the United Nations Convention against Torture and the other measures referred to in Article 2(c)’.

This recognizes that for persons with Convention refugee or subsidiary protection status, or their family members, protection against expulsion is higher.

13)    Articles 9(1)(a) and 10 should be deleted, and Article 9(1)(b) should be restricted to family members referred to in Article 5(1)(d).

This would place third-country nationals on a more equal footing with EC nationals, as agreed at the Tampere European Council. 

14)       Article 11(2) should be amended to read:

“…by the applicant.  A decision to grant such a residence permit shall be taken  as soon as possible and in any event not later than 6 months from the  date of application for the permit. If the applicant’s..”

15)       Article 12(2) should be amended, to read:

‘…shall not apply to relatives in the ascending line [words deleted], as defined in Article 5(1)(d).’

While children covered by Article 5(1)(e) may have serious health problems, it should not be assumed that they are therefore unable to take up any employment.  The Commission’s proposal for a directive on equal opportunity is intended to reflect the principle that persons with a disability should have access to employment, and this directive should also reflect that principle.  Moreover, this amendment is necessary to treat third-country nationals on an equal footing with EC nationals, as agreed at Tampere (see Article 11 of Regulation 1612/68).

16)       Article 13(1) should be amended to read:

            ‘Not later than after three years of residence,…the spouse or unmarried partner [words deleted] shall be entitled to an autonomous residence permit….A child who has attained full age shall be entitled to such a permit on the date of attaining full age’.  

This would allow access to an autonomous permit earlier, ensuring equality with the third-country national family members of EC nationals pursuant to the proposed amendments to Regulation 1612/68.  It would also require immediate issue of autonomous permits to children who reach adulthood, which would require a corresponding amendment to Article 13(2).

17)       Article 13(3) should be amended to read:

            ‘…admitted on the basis of family reunification [words deleted] are widowed, divorced or separated [words deleted], Regulation 1251/70 shall apply mutatis mutandis.  If that Regulation does not apply to their situation, they may apply for an autonomous residence permit.  If they are the parent of a minor child resident in that Member State, or where necessary by reason of…’

First, this requires consideration of issue of permits at any stage of residence, not just after one year, bringing the proposal into line with practice in several Member States.  Second, it would apply the EC Regulation dealing with this matter to third-country nationals, implementing the Tampere principle of equality.  Third, the words ‘or deceased’ should be deleted from the proposal, on the grounds that the immigration status of deceased family members is a moot issue.  Fourth, in line with national law in several Member States, parents of resident children should not be expelled upon divorce or bereavement.

18)       Article 14(1)(b) should be deleted.

This amendment replaces wording based on the prior ‘primary purpose’ rule in force in the United Kingdom, which was often used against persons whose marriage was genuine.  The new wording follows the provisions of legislation on free movement of EC nationals, which does not refer expressly to the ability of Member States to question marriages entered into by EC nationals.  The circumstances in which Member States can question such marriages are therefore left to the development of case law by the Court of Justice.  Applying the same rule to third-country nationals would ensure equality between them and EU citizens.

19)       The Directive should contain a provision requiring that it be applied without discrimination as regards any of the grounds listed in Article 12 and 13 EC or Article 14 ECHR. 

This would give effect to the fundamental principle of non-discrimination underlying Community law.

Annex 1: Family Reunification -- Principal International Standards

(Universal and European Provisions)

1. Family as the fundamental unit of society

Article 16(3) Universal Declaration of Human Rights (UDHR)

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 23(1) International Covenant on Civil and Political Rights (ICCPR)

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 10(1) International Covenant on Economic, Social and Cultural Rights (ICESCR)

The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

Article 44(1) International Convention on the Rights of All Migrant Workers and Members of Their Families (MWC)

States Parties, recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers.

Part I, para.16 European Social Charter (ECS)

The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.

Part I, para.19 ESC

Migrant workers who are nationals of a Contracting Party and their families have the right to protection and assistance in the territory of any other Contracting Party.

Article 16 ESC - The right of the family to social, legal and economic protection

With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate means.

2. Right to private and family life

Article 12 UDHR

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 17(1) ICCPR

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 16(1) Convention on the Rights of the Child (CRC)

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Article 8 European Convention on Human Rights (ECHR) – Right to respect for private and family life

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 except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

3. Definitions of “family” for the purpose of family reunification [See 4 below]

Article 44(2) MWC

… [S]pouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children.

Article 13(2) International Labour Organisation (ILO) Convention No. 143 of 1975 on Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers

2. The members of the family of the migrant worker to which this Article applies are the spouse and dependent children, father and mother.

Paragraphs 15 ILO Recommendation No. 151 of 1975 on Migrant Workers

15. For the purpose of the provisions of this Recommendation relating to the reunification of families, the family of the migrant worker should include the spouse and dependent children, father and mother.

Paragraph 15(3) Recommendation No. 86 of 1949 on Migration for Employment (Revised)

For the purposes of this Paragraph, the members of the family of a migrant for employment should include his wife and minor children; favourable consideration should be given to requests for the inclusion of other members of the family dependent upon the migrant.

Appendix, Part II ESC

Article 19, paragraph 6

For the purpose of this provision, the term "family of a foreign worker" is understood to mean at least his wife and dependent children under the age of 21 years.

Appendix, Part II Revised ESC

Article 19, paragraph 6

For the purpose of applying this provision, the term "family of a foreign worker" is understood to mean at least the worker’s spouse and unmarried children, as long as the latter are considered to be minors by the receiving State and are dependent on the migrant worker.

Article 12(1) European Convention on the Legal Status of Migrant Workers

The spouse of a migrant worker who is lawfully employed in the territory of a Contracting Party and the unmarried children thereof, as long as they are considered to be minors by the relevant law of the receiving State, who are dependent on the migrant worker …

4. Family Reunification Obligations

Article 9(1) CRC

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child …

Article 10(1) and (2) CRC

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

Article 44(2) and (3) MWC

2. States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children.

3. States of employment, on humanitarian grounds, shall favourably consider granting equal treatment, as set forth in paragraph 2 of the present article, to other family members of migrant workers.

Final Act of the 1951 UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, July 1951, Recommendation B (Principle of unity of the family)

The Conference,

Considering that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened,

…

Recommends Governments to take the necessary measures for the protection of the refugee’s family, especially with a view to:

Ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country

 …

Article 19(6) ESC - The right of migrant workers and their families to protection and assistance

With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Contracting Party, the Contracting Parties undertake: [inter alia]

…

6. to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory;

Article 13(1) ILO Convention No. 143 of 1975

1. A Member may take all necessary measures which fall within its competence and collaborate with other Members to facilitate the reunification of the families of all migrant workers legally residing in its territory.

Paragraphs 13-19 ILO Recommendation No. 151 of 1975 on Migrant Workers

A. Reunification of Families

13. (1) All possible measures should be taken both by countries of employment and by countries of origin to facilitate the reunification of families of migrant workers as rapidly as possible. These measures should include, as necessary, national laws or regulations and bilateral and multilateral arrangements.

(2) A prerequisite for the reunification of families should be that the worker has, for his family, appropriate accommodation which meets the standards normally applicable to nationals of the country of employment.

14. Representatives of all concerned, and in particular of employers and workers, should be consulted on the measures to be adopted to facilitate the reunification of families and their co-operation sought in giving effect thereto.

15. For the purpose of the provisions of this Recommendation relating to the reunification of families, the family of the migrant worker should include the spouse and dependent children, father and mother.

16. With a view to facilitating the reunification of families as quickly as possible in accordance with Paragraph 13 of this Recommendation, each Member should take full account of the needs of migrant workers and their families in particular in its policy regarding the construction of family housing, assistance in obtaining this housing and the development of appropriate reception services.

17. Where a migrant worker who has been employed for at least one year in a country of employment cannot be joined by his family in that country, he should be entitled--

(a) to visit the country of residence of his family during the paid annual holiday to which he is entitled under the national law and practice of the country of employment without losing during the absence from that country any acquired rights or rights in course of acquisition and, particularly, without having his employment terminated or his right to residence in the country of employment withdrawn during that period; or

(b) to be visited by his family for a period corresponding at least to the annual holiday with pay to which he is entitled.

18. Consideration should be given to the possibility of giving the migrant worker financial assistance towards the cost of the travel envisaged in the preceding Paragraph or a reduction in the normal cost of transport, for instance by the arrangement of group travel.

19. Without prejudice to more favourable provisions which may be applicable to them, persons admitted in pursuance of international arrangements for free movement of labour should have the benefit of the measures provided for in Paragraphs 13 to 18 of this Recommendation.

Paragraph 15 of Recommendation No. 86 of 1949 on Migration for Employment (Revised)

(1) Provision should be made by agreement for authorisation to be granted for a migrant for employment introduced on a permanent basis to be accompanied or joined by the members of his family.

(2) The movement of the members of the family of such a migrant authorised to accompany or join him should be specially facilitated by both the country of emigration and the country of immigration.

Article 12 European Convention on the Legal Status of Migrant Workers - Family reunion

(1) The spouse of a migrant worker who is lawfully employed in the territory of a Contracting Party and the unmarried children thereof, as long as they are considered to be minors by the relevant law of the receiving State, who are dependent on the migrant worker, are authorised on conditions analogous to those which this Convention applies to the admission of migrant workers and according to the admission procedure prescribed by such law or by international agreements to join the migrant worker in the territory of a Contracting Party, provided that the latter has available for the family housing considered as normal for national workers in the region where the migrant worker is employed. Each Contracting Party may make the giving of authorisation conditional upon a waiting period which shall not exceed twelve months.

(2) Any State may, at any time, by declaration addressed to the Secretary General of the Council of Europe, which shall take effect one month after the date of receipt, make the family reunion referred to in paragraph 1 above further conditional upon the migrant worker having steady resources sufficient to meet the needs of his family.

(3) Any State may, at any time, by declaration addressed to the Secretary General of the Council of Europe, which shall take effect one month after the date of its receipt, derogate temporarily from the obligation to give the authorisation provided for in paragraph 1 above, for one or more parts of its territory which it shall designate in its declaration, on the condition that these measures do not conflict with obligations under other international instruments. The declarations shall state the special reasons justifying the derogation with regard to receiving capacity.

Any State availing itself of this possibility of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and shall ensure that these measures are published as soon as possible. It shall also inform the Secretary General of the Council of Europe when such measures cease to operate and the provisions of the Convention are again being fully executed.

The derogation shall not, as a general rule, affect requests for family reunion submitted to the competent authorities, before the declaration is addressed to the Secretary General, by migrant workers already established in the part of the territory concerned.

Protocol to the European Convention on Establishment 1955 (Section III, Articles 1, 2 and 3)

b. The Contracting Parties undertake, in the exercise of their established rights, to pay due regard to family ties.

c. The right of expulsion may be exercised only in individual cases. The Contracting Parties shall, in exercising their right of expulsion, act with consideration, having regard to the particular relations which exist between the members of the Council of Europe. They shall in particular take due account of family ties and the period of residence in their territory of the person concerned.

Abbreviations

 

CRC                Convention on the Rights of the Child

ECHR              European Convention on Human Rights

ESC                European Social Charter

ICCPR             International Covenant on Civil and Political Rights

ICESCR            International Covenant on Economic, Social and Cultural Rights

MWC               International Convention on the Rights of All Migrant Workers and Members of Their Families

UDHR              Universal Declaration of Human Rights

Annex 2:  Granting rights comparable to EU citizens

“A common approach must also be developed to ensure the integration into our societies and those third country nationals who are lawfully resident in the union.

The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member states.  A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens.  It should also enhance non-discrimination in economic, social and culture life and develop measures against racism and xenophobia”.

The proposal will be assessed against these general aims.

Definition of Family Members (Article 5)

Article 5 sets out the members of the family who can benefit from family reunion. The inclusion of unmarried partners (including same sex partners) is to be welcomed, as it   effectively extends the provisions of Article 7 (2) of Regulation 1612/68EEC.  However the problem of discretion in extending these rights remains.

With regard to children, the requirement for the applying spouse or partner of actual custody and responsibility of the child is in fact more onerous than the requirement contained in Article 10(1)(a) of Regulation 1612/68, where for Community national migrants any descendents (including children) need only be under the age of 21 or, even over 21 if dependent. 

Article 5(1)(b) of the proposal also refers to “minor” children.  The question of minority seems to remain at the discretion of the national legislation of the Member States which may vary from 16 to 21. 

With regard to the dependants in the ascending line of the applicant or his spouse or unmarried partner, the requirement to show no other means of family support in the country of origin places these family members in a far worse position than family members of EU nationals.  Even if dependency can be shown, but the parents or grandparents of the third country national or his spouse have wealthy relatives in their home country, then they would seemingly be refused.  This is not the equality envisaged by the Tampere Conclusions.

The requirement for dependent children to be unmarried is also more onerous than the requirements of Regulation 1612/68.  Children dependent on EU national parents which children are married and live with the EU principal and or his spouse are entitled to admission under Community law.

Finally, there is no provision to facilitate the entry of wider family members similar to Article 10(2) of the Regulation.  Such a provision would ensure that the wider concept of family  applied in some Member States by certain  is recognised.

Practical considerations for the exercise of the right of family reunification  (Article 8)

The discretionary element in the admission of family members of third country nationals resident in the EU is clearly inferior to the right of EU nationals.

The time limit for consideration of applications for family reunion of six months, in line with directive 64/221, is to be welcomed.  It is not clear, however, when the six months start to run and Article 8(2) could be interpreted so that the six months start to run from when the Member State has completed its consideration of the application.

Criteria for admission (Article 9)

Again, discretion is left as to the Member States. The non-discrimination provision set out in Article 9 (2) is to be welcomed to the extent that it will place family members on the same footing as nationals of Member States with regard to the criteria for admission.

In general, the criteria for admission reflect those contained in the Residence Directive 90/364.  In order to ensure total equality for EU nationals the criteria for admission should be equivalent to those set out in Community legislation providing for family reunion for EU nationals who are workers, self employed or service providers.

Conditions of family reunion (Article 10)                

The discretion given to Member States to require applicants to have completed one year of lawful residence before family reunion can be envisaged  (Article 10) falls well short of the family reunion rights of EU nationals, and therefore breaches the Tampere principle of equality.

Entry and residence of family members (Article 11)             

Article 11 relating to the granting of visas reflects the provisions of Directive 68/360.  However, with regard to the issue of residence permits, once a family reunion application has been accepted, no time limit equivalent to that set out in Directive 64/221 for  the issue of residence permits is set out.  A time limited should be introduced.

Social advantages (Article 12)

Although Article 12 entitles family members to have access to education, employment and self employed activity and vocational guidance including training and re-training, it does not extend to them all social advantages available to spouses of EU nationals in accordance with Article 7(2) of Regulation 1612/68.  The prohibition on employment for relatives in the ascending line also puts these family members in a worse position vis-a-vis family members of EU nationals. Under Article 11 of the Regulation. The proposal also maintains the more favourable position granted to nationals of countries which have entered into Association and/or Cooperation Agreements with the EU in respect of non-discrimination in working conditions etc.

Autonomous Residence rights (Article 13)

Article 13 provides for an autonomous residence right for third country national family members after a maximum period of four years.  It is welcome in so far as it is may serve as a minimum standard which will require Member States to provide security to family members at least after four years of residence.  It is not welcome as it currently stands – a maximum requirement to which all Member States will have to comply.  Further, it does not reflect the provisions of Directives 1251/70 and 75/34 relating to the family members of Community national migrants which give an entitlement to autonomous rights of residence after less than 4 years.  Instead, it provides for a possibility in Article 13(3) for those who have been widowed, divorced or separated, to apply for autonomous residence rights after one year’s residence.   The explanatory memorandum explains that this provision can benefit, for example, those who have suffered domestic violence and to this extent is to be welcomed.

Equality with EU nationals (Article 4)

Article 4 of the proposals seeks to remedy the situation of “indirect discrimination” suffered by EU nationals who have not exercised Treaty free movement rights.  Article 4 therefore proposes to extend to all those EU nationals who have not exercised such rights all Community law rights in respect of family reunion.

The result of this article is clear.  Rather than placing third county nationals in an equivalent position to EU nationals, it in fact elevates the position of EU nationals who have not exercised Treaty rights to one which is far superior to existing national law in most Member States. 


Annex 3: Scoreboarding Principles

(i)                  The concept of ‘scoreboard’

The Conclusions of the Tampere European Council Meeting in October 1999 set out its determination to ‘develop the Union as an area of freedom, security and justice by making full use of the possibilities offered by the Treaty of Amsterdam.’  It resolved to ‘keep under review’ progress towards achieving this end and invited the European Commission to make a proposal for ‘an appropriate scoreboard to that end.’  This was regarded as being necessary for ensuring transparency and for keeping the European Parliament regularly informed. 

The issue of the scoreboard was considered at the meeting of the Justice and Home Affairs Council (JHAC) on 2 December 1999.  Commissioner Vitorino informed the Council that the Commission intended to table a formal proposal in the following Spring on the scoreboard after consultations with the Member States, the European Parliament, and other interested bodies, ‘such as the High Commissioner for Refugees’ had been held.  He further explained that the scoreboard would not be a legislative measure, but a means to ‘exert pressure on areas where progress is lagging behind.’  In receiving this report from the Commission the JHAC affirmed its support for ‘broad consultation taking place ahead of the Commission’s presentation of the formal proposal for the scoreboard.’

(ii)                Scoreboard models

The EU currently uses a scoreboard for monitoring the implementation of its action plan for the introduction of the Euro.  Assessing the action plan from the standpoint of four separate headings (monitoring of action plan; overview of regulatory environment; feedback from Member States; and feedback from dialogue with citizens) the scoreboard is judged to be an essential instrument in ensuring that targets are achieved and the benefits of the single market extend to all citizens of the Union.  The Commission has judged the single market scoreboard to be a success and intends to expand and develop it into a permanent instrument providing a clear picture of the single markets strengths and weaknesses.

The Council is of the view that the idea of a scoreboard can be developed into a similar instrument for evaluating progress made in the field of freedom, security and justice.  We believe this may be correct and a greater sense of relevance from the standpoint of citizens and individuals injected into the process of legislation and policy-making in this area.  However, given the issues to be considered under these headings, progress will only be made if the human rights component is fully considered at the earliest stages of law and policy-making, and where the scoreboard includes an assessment of the compatibility of each new proposal on its impact on human rights.

(iii)               The relevance of human rights

The importance of human rights for the development of the EU is reflected in its founding treaties.  The preamble to the EU Treaty confirms the signatory states’  ‘attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’.   Article 6 TEU sets out that:

            1.         The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2.         The Union shall respect fundament rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

These commitments provide a basis for the argument that policies made under the heading of freedom, security and justice, all issues which directly touch upon the lives of individuals resident with the territory of the EU, should be assessed against their advancement of human rights and fundamental freedoms.   

The Union has adopted a system of annual reporting on human rights issues, with the first report adopted by the General Affairs Council at its meeting in Luxembourg on the 11 October 1999.  In its introduction, the report affirmed its commitment to the principle, adopted at the United Nations World Conference on Human Rights in Vienna in June 1993, that ‘all human rights are universal, indivisible, interdependent, and interrelated.’   The Union accepts that this has created ‘a mandate for all Governments, a reality for all people, through protective and promotional activities encompassing all policy areas.’

The implications of this perspective on human rights need to be properly understood. To locate human rights in the dynamic environment of a society which is ‘indivisible, interdependent and interrelated’ is to emphasis the fact that, whilst human rights themselves are an absolute (universal) value, the contexts in which they have real meaning and concrete effect depend upon developments in wider society.  For example, measures which need to be taken to ensure equality between the sexes, differ according to historical conjuncture and prevailing trends in the economic, social and civic lives of specific societies.  In other words, measures intended to ensure the protection of basic human rights have to be kept constantly under review to ensure they are meeting the level of legitimate expectations of citizens and individuals.  With this understanding in mind, we propose to evaluate one measure proposed by the European Commission under the broad heading of policies concerning freedom, security and justice: namely the proposal for a directive on the right to family reunification.  

(iv)              Principles for evaluating human rights

The evaluation of human rights and social policy issues itself requires consideration of a number of interacting points.  Foremost amongst these are the need to consider established standards of human rights and the human rights goals of particular societies.  At the abstract level, ‘equality’ may be stated as an fundamental entitlement of all human beings.  Within the setting of a particular society, the need for equality may not necessarily be a requirement in the abstract, but a condition for the efficient functioning of a dynamic, heterogeneous society functioning on the principles of a free market economy.  Needless to say, the EU represents this type of society, where the presumption that all human beings are free, entitled to participate in the benefits of the Union, is a condition not only for human dignity, but the efficient organisation of society.

For this reason, we have taken as the basis for a human rights scoreboard evaluation under the following headings:

Scoring against each of these criteria allows comprehensive evaluation of the proposed measure and its effect on human rights.


[1] COM(1999) 638 final of 1 December 1999.