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Human mobility and the right to family reunion
Doc. 10123
1 April 2004
Report
Committee on Migration, Refugees and Population
Rapporteur: Mrs Rosmarie Zapfl-Helbling, Switzerland, Group of the European
People’s Party
Summary
The right of all individuals to respect for their family life is a fundamental right guaranteed under international instruments, in particular the European Convention on Human Rights. Family reunion corresponds to the situation where a family comes to join one of its members. This right may be exercised by migrants lawfully resident in a member state and by persons having obtained refugee status or complementary or subsidiary protection.
The Parliamentary Assembly considers that family reunion strengthens the policy of integration into the host society and is in the interests of social cohesion. Some Council of Europe member states tend to impose restrictive conditions on the exercise of this right. In this respect, the Assembly regrets that the recent European Union Directive on the right to family reunification fails to propose a common definition of the family unit, to recognise this right for persons granted subsidiary protection or to lay down harmonised provisions with regard to conditions, procedures and timeframes for granting resident status and associated rights.
This report recommends a number of measures aimed at preserving the right to family reunion and protecting individuals against any arbitrary decision by the public authorities.
I. Draft Recommendation
1. The right to respect for family life is a fundamental right belonging to everyone and one which is secured by a number of international legal instruments, such as the Universal Declaration on Human Rights (Article 16) and the European Convention on Human Rights (Article 8).
2. Family reunion is the term used to describe a situation in which a family comes to join one of its members (the “principal”) lawfully resident in another country.
3. Several Council of Europe conventions, such as the European Social Charter (1961), the Revised European Social Charter (1996) and the European Convention on the Legal Status of Migrant Workers (1977), as well as the International Convention on the Rights of the Child (1989), encourage member states to promote the right to family reunion.
4. The right to family reunion in the European Union is one which applies to nationals of non-European Union member states and may be exercised, in principle, by migrants lawfully resident in a member State, persons having obtained refugee status according to the 1951 Geneva Convention relating to the Status of Refugees, as well as persons having been granted complementary or subsidiary protection.
5. The Parliamentary Assembly and also the Committee of Ministers in its recent Recommendation on the legal status of persons admitted for family reunification (Rec(2002)4), reiterate their view that any immigration policy has a duty, in accordance with the principles declared at the Tampere European Council (1999), to uphold the principles of equal treatment between nationals of non-EU member states having legal status and citizens of the European Union and must consequently seek to ensure treatment on an equal footing with nationals.
6. The reconstitution of the families of lawfully resident migrants and refugees by means of family reunion strengthens the policy of integration into the host society and is in the interests of social cohesion.
7. However, the concept of “family”, underlying that of family reunion, has not been defined at European level and varies notably in accordance with the value and importance attached to the principle of dependence.
8. In its Recommendation 1327 (1997) on the Protection and reinforcement of the human rights of refugees and asylum seekers in Europe, the Assembly interpreted "the concept of asylum-seekers’ families as including de facto family members (natural family), for example asylum-seeker’s concubine or natural children as well as elderly, infirm or otherwise dependent relations".
9. The Assembly notes with some concern that certain member states have shown a tendency to revise their immigration policy and impose tighter restrictions on the right to family reunion.
10. While welcoming the preferential treatment granted to refugees in the recent Council Directive on the right to family reunification (2003/86/EC), the Assembly expresses its regret that it does not recognise the right to family reunion for persons granted subsidiary protection, nor does it lay down harmonised provisions with regard to the conditions, procedures and time-frames for granting resident status and associated rights.
11. The Assembly also believes that certain provisions allowing for derogations which enable states to make applications subject to financial and housing-related conditions, integration criteria or age-limits could, if applied strictly, pose a threat to the right to respect for family life and, in particular, the rights granted to children, and reinforce the risk of the social exclusion of certain nationals of non-EU member states.
12. Consequently, the Assembly recommends that the Committee of Ministers:
i. increase its monitoring of compliance by member states with international legal instruments with regard to family reunion and in particular compliance with the European Convention on Human Rights and the relevant recommendations of the Committee of Ministers in this field;
ii. draw up proposals for the harmonisation and implementation of family reunion policies in member states and lay down a common definition of the family unit and rules regarding specific circumstances;
iii. address, in the meantime, a recommendation to member states, urging them:
a. to apply, where possible and appropriate, a broad interpretation of the concept of family and include in that definition members of the natural family, non-married partners, including same-sex partners, children born out of wedlock, children in joint custody, dependent adult children and dependent parents;
b. to grant the right to family reunion to persons benefiting from subsidiary protection;
c. to lay down that reasons must be given for any refusal to grant an application for family reunion and ensure that such a decision can be appealed before an independent body;
d. to impose less strict conditions for applicants in respect of financial guarantees, health insurance and housing;
e. to make administrative procedures as straightforward and transparent as possible and to harmonise at European level waiting periods, limiting them to a maximum of 12 months, and not to consider the failure to provide certain documents that are not instrumental in defining the fulfilment of the conditions for family reunification as grounds for rejecting the application;
f. to consider applications in a positive and humane spirit in providing necessary support for all vulnerable groups and apply appropriate assistance measures to refugees in the light of any economic difficulties they may be experiencing;
g. to facilitate, referring to Parliamentary Assembly Recommendation 1596 (2003) on the Situation of young migrants in Europe, family reunion before the completion of the sometimes very lengthy procedure for determining refugee status, in exceptional cases and for humanitarian reasons;
h. not to return, in conformity with the case-law of the European Court of Human Rights and referring to Article 8 of the European Convention on Human Rights, illegal immigrants or asylum-seekers whose application has been rejected if such a move could threaten the unity of their family, but rather to seek to solve the problem by bringing their situation into conformity with the law for humanitarian reasons;
i. to grant members of a reunited family a legal status enabling them to integrate fully into the host society and to encourage the issuing of an autonomous residence permit to the spouse, non-married partner and children who reach the age of majority in order to afford them protection in the event of deportation, divorce, separation or the death of the principal right-holder;
j. to authorise members of the family of a non-national living lawfully in a member state to work in an employed or a self-employed capacity as soon as they are issued with a residence permit;
k. to introduce special programmes for the integration of families that have been reunited.
II. Explanatory memorandum by Mrs Zapfl-Helbling
1. Introduction
1. The right to family life is one of the basic rights secured by international legal instruments. Over the past few decades, economic migration and the flow of refugees and asylum-seekers to Europe and the return of illegal immigrants to their countries of origin have given rise to the problem of the forced separation of families. The reconstitution of families by means of family reunion is a humane solution in keeping with human rights principles and in the interests of social cohesion.
2. The term "family reunion" is normally used to describe the situation in which a family comes to join one of its members living on a temporary or permanent basis in a foreign country. Family reunion is an important element in the application of the right to family life although it is not in itself universally recognised as a fundamental right. It concerns foreign nationals in a variety of situations and is not necessarily applied by all states to all categories of possible beneficiaries, such as couples of different nationalities, migrant workers, refugees, asylum-seekers whose application has been rejected but who have been granted a humanitarian or other status, persons under temporary protection, unaccompanied minors, etc.[1]
3. Family reunion must be analysed within the context of both migratory flows and European migration and asylum policies. Today, economic and social difficulties encourage certain European countries to reconsider their immigration policies and impose tighter restrictions. As labour migration has become extremely limited, refugee status, granted increasingly less easily, and family reunion are now the only legal avenues of immigration in European countries.
4. It has been clearly shown that the status of resident and other rights granted to family members allowed to enter the country are key aspects which foster the integration of the new arrivals in the host society.
5. The right to family reunion is a complex question and has given rise to numerous debates in the European Union. Acknowledging the need for closer harmonisation of national legislations on admission and residence conditions for citizens of non-member states, the Tampere European Council (15-16 October 1999) declared that the European Union should ensure fair treatment of nationals of these countries legally resident in the territory of member states and that the integration policy should provide them with rights and obligations comparable to those of the citizens of the European Union. Two years of discussions convinced the Laeken European Council (14-15 December 2001) that new guidelines were necessary in order to make good the delay. The Council of the European Union adopted a new Directive[2] on the right to family reunion. As is the case with all directives, member states are obliged to ensure that they achieve the anticipated result, but national authorities are free to choose the ways and means of doing this.
6. Family
reunion comprises several legal and social aspects and should therefore be
studied from the standpoint of the individual, the family and society. The
purpose of this report is to analyse the right to family reunion by looking
closely at the legal basis for this right
(presentation of the founding texts and more recent texts), to analyse the
rights conferred by this status both for the sponsor and the family members
themselves, and finally to study how these citizens integrate into society.
2. The legal basis for family reunion
7. Family reunion is based on the principle of family life protection. The majority of international instruments relating to family reunion contain provisions for the protection of the family without expressly mentioning family reunion.
2.1. International human rights instruments which promote family protection but which make no explicit mention of family reunion
8. The 1948 Universal Declaration of Human Rights states that "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." (Article 16 para. 3). The same provision is to be found in the United Nations International Covenant on Civil and Political Rights, 1966, (Article 23 para. 1). The European Convention on Human Rights (ECHR) guarantees everyone the right to respect for his private and family life (Article 8); certain texts of the International Labour Organisation focus on preserving the unity of migrant workers’ families (Recommendations No 86 and 151). However the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol do not include the principle of family unity and do not mention family reunion. In other terms, whether or not a refugee family can be reunited is therefore determined mainly by national asylum and immigration policies and admission criteria, which may or may not take account of the recommendations and guidelines of the office of the United Nations High Commissioner for Refugees (UNHCR).
2.2. International instruments encouraging states to promote the right to family reunion
9. The 1961 European Social Charter stipulates that states should undertake to "facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory" (Article 19 para. 6). The appendix to this article defines the family as "understood to mean at least his wife and dependent children under the age of 21 years". The 1996 Revised Social Charter extends the scope of family reunion in that it replaces the word "wife" by "spouse". However, it introduces a restriction by stipulating that the children must be unmarried. The age limit of 21 has also been altered to the age of majority in the receiving state.
10. The European Court of Human Rights distinguishes between cases concerning the entry of foreign nationals onto the territory of a state for the purposes of family reunion and those concerning the deportation of foreigners leading to the break-up of the family. It seeks to strike a balance between the rights of the individual and the interests of society by considering that interference by the public authorities in a person’s private and family life may be justified if "necessary in a democratic society".
11. The 1989 International Convention on the Rights of the Child stipulate that states must ensure that a child is not be separated from his or her parents and that any application by a child or his or her parents to enter or leave a state for the purpose of family reunion is dealt with by States Parties in a positive, humane and expeditious manner (Articles 9 and 10).
12. Article 12 of the 1977 European Convention on the Legal Status of Migrant Workers states that only the members of the immediate family, i.e. the spouse and unmarried children considered minors under the relevant law of the receiving state and dependent on the migrant worker, are eligible for family reunion.
13. The Final Act of the United Nations Conference of Plenipotentiaries, which adopted the 1951 Convention, recommends that governments preserve the unity of refugees’ families.
3. The definition of family and its consequences for the right to family reunion
14. Depending on the definition of family adopted, ie whether it relates to the nuclear family or whether the principle of dependence should be taken into account, additional conditions may restrict the scope of family reunion.
15. As a general rule, and as stipulated in Article 4 of the Directive of the Council of the European Union[3], members of the applicant’s immediate family, ie the spouse and dependent children under the age of majority, including adopted children, are eligible for family reunion. With regard to other family members, member states are free to adopt provisions allowing the family reunion of first-degree relatives in the direct ascending line, unmarried children over the age of majority, unmarried or registered partners.
16. In the case of polygamous marriages, the state may authorise the reunion of under-age children from another spouse and the applicant. However, the Directive of the Council of the European Union stipulates that "where the sponsor already has a spouse living with him in the territory of a MemberState, the MemberState concerned shall not authorise the family reunification of a further spouse" (Article 4 para. 4).
17. It is perhaps a matter of some regret that certain provisions in the Directive restrict the right to family reunion by allowing for numerous derogations by member states. For example, a state may limit the right to reunion for children aged 12 years or over, whose primary residence is not with the sponsor, who do not satisfy the integration conditions laid down by national legislation. As a means of combating the practice of forced marriages, a state may also require a minimum age, which cannot be higher than 21, before the spouse is able to join the sponsor. Lastly, by way of derogation, states may require that applications for the family reunion of children under the age of majority be submitted before such children have reached the age of 15.
18. Given that the nuclear family represents the core unit, the UNHCR recommends that for the purposes of family reunion a broad interpretation of the family be adopted, taking the view that the principle of dependence must exclude conditions which are too rigid. For example, the right to family reunion should be extended to members of the natural family, ie children under the age of majority, unmarried children (irrespective of age), ascendants and orphans. The UNHCR even goes so far as to include members of the extended family (brothers, sisters, aunts, cousins) and, in the framework of resettlement[4], members of polygamous families. The UNHCR interprets spouse not only within the context of legal unions, but also fianc�(e)s, customary marriages and couples "who have lived together for a substantial period establishing a family unit". It also recognises "same sex partnerships as unions for purposes of family reunification".
19. The UNHCR urges member states to take account of cultural differences and social standards, to consider applications in a positive and humane spirit and without undue delay, recommends fewer conditions with regard to financial and housing guarantees and calls for the adoption of special assistance measures for refugees[5].
20. As regards the stance adopted by the Council of Europe, mention can be made of a number of texts by the Committee of Ministers, in particular Resolution (78) 33 on the reunion of families of migrant workers in Council of Europe member states and Recommendation R (99) 23 on family reunion for refugees and other persons in need of international protection. The purpose of this Recommendation is to preserve and defend, through appropriate measures, the principle of family unity while fully respecting the fundamental human rights and dignity of refugees. Applications should be dealt with in a positive spirit, giving special attention to unaccompanied minors and persons who are in a vulnerable position. The family members concerned are the spouse and minor children; it is left to the states themselves to decide whether other persons should be admitted "according to domestic legislation and practice".
21. In Recommendation (2002)4 on the legal status of persons admitted for family reunification, the Committee of Ministers states that "the term ‘family members’ covers all persons admitted to reside on the territory of a member state with a national or a lawfully residing alien in order to form or preserve the family unit". However, it specifies that "a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
22. The Parliamentary Assembly of the Council of Europe has adopted several texts on immigrants, asylum, refugees and displaced persons, rejected asylum seekers, women refugees and the protection of children, in which it reiterates the principle of family unity and the importance of family reunion; these include Recommendations 1082 (1988), 1151 (1991), 1261 (1995), 1327 (1997), 1348 (1997) and 1404 (1999), and Resolutions 1010 (1993) and 1050 (1994).
23. In its Recommendation 1327 (1997)[6], the Assembly recommends that the concept of asylum-seekers’ families include de facto family members, for example, the cohabitee, natural children and elderly or dependent relatives. In Recommendation 1348 (1997)[7], it took the view that persons under temporary protection schemes or in possession of a residence permit for humanitarian protection should be eligible for family reunion.
24. The European Court of Human Rights and the former Commission of Human Rights both interpreted the concept of family life broadly. For them, it refers to the relationship between a parent and his/her child even if the child’s parents are divorced or have never been married, and can even be relied upon by a parent who has not been awarded custody. It also covers the relationship between an adult and his or her parents and brothers or sisters, themselves adults.
4. National policies and procedures in Council of Europe member states
25. The regulations governing family reunion in Council of Europe member states are not harmonised in practice and do not include minimum standards. Governments have wide discretion, by applying differing and often restrictive provisions and definitions of the family.
26. Despite the differences, a number of common features can be identified in the policies of the Council of Europe member states. Family reunion is usually governed by provisions concerning the admission and residence of foreign nationals, immigration, refugees, the right of asylum and by a large number of decrees, circulars, etc, which sometimes means there is little transparency. It must also be said that legislation in this field, and legislation on immigration as a whole, is often redrafted when there is a change of government or of political philosophy.
4.1. Categories of persons eligible for family reunion
27. The aim of the new Directive of the Council of the European Union is to establish a right to family reunion for nationals of non-EU member states lawfully resident in the Union, to be exercised in accordance with common criteria in all member states. Nationals of non-member states who have had a residence permit for at least one year and anyone who has been granted refugee status may apply for family reunion.
28. Almost all Council of Europe member states grant the right to family reunion to refugees recognised as such under the 1951 Convention. However, the relevant procedure cannot be initiated until the asylum seeker has secured refugee status, which may occasionally take years. According to the HCR, the average time taken to process an application for asylum is three years. Few countries allow asylum seekers to send for their families before their application has been processed and in some countries applications are examined on a case-by-case basis (e.g. (Iceland and Belgium).
29. The right to family reunion for persons granted temporary protection has not been widely established. Such persons are eligible for family reunion in some receiving countries (Austria, Belgium, Sweden, Switzerland, etc.), but not in others (France, Netherlands, Hungary, Bulgaria). Sometimes the decisions are taken on a case-by-case basis (Denmark and the CzechRepublic); in other cases, there is no such status as temporary protection (Latvia and the United Kingdom).
30. Asylum seekers, whose application for refugee status has been refused but who have been granted a residence permit on humanitarian grounds, are entitled to family reunion in most countries (exceptions – Bulgaria, Estonia, Hungary) or decisions are taken on a case-by-case basis according to the person’s circumstances (Denmark, France).
4.2. Conditions set by national authorities
31. Nonetheless, different categories of applicants are sometimes treated differently in the Council of Europe member states, and applications from refugees generally have greater chances of success. Article 10 of the EU Directive[8] provides that refugees shall not be subject to the same conditions regarding the concept of family and the need for documentary evidence attesting to family links, regular income, housing and health insurance.
32. Many European countries lay down restrictive conditions. By way of example, family members must not have entered the country before family reunion is authorised and all the family members concerned must enter the country at the same time. If the family cannot provide documentary proof of marriage and relationship by descent, the application may be refused. It is sometimes difficult for refugees who have left their country of origin in dramatic circumstances to produce all the documents required. The UNHCR and the Committee of Ministers[9] of the Council of Europe have recommended that the absence of such documents should not be grounds for refusing their application.
33. Family reunion is often made conditional on the head of the family achieving financial self-sufficiency and securing adequate accommodation for his family. The EU Directive[10] contains a list of the conditions required. Article 7 stipulates that when submitting their applications, sponsors must provide evidence that they have "accommodation regarded as normal for a comparable family in the same region..", "sickness insurance (…) for [themselves] and members of [their] families", "stable and regular resources which are sufficient to maintain [themselves] and members of [their] family, without recourse to the social assistance system of the member state concerned".
34. Article 7 of this Directive also states that "member States may require third country nationals to comply with integration measures, in accordance with national law."
35. Similarly, applicants may be required to have been lawfully resident in the country for a number of years. Article 8 of the EU Directive[11] states that "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." By way of derogation, a state may, in the light of its reception capacity "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."
36. Restrictive conditions and/or derogations to the right to family reunion weaken the social position of the applicant and the question may legitimately be asked whether these new requirements, which concern primarily sufficient resources, call into question the principles set forth at the Tampere European Council. By extension, it could lead one to think that the right to family reunion could be refused to a poorly-skilled (and therefore poorly paid) immigrant worker but granted to others in a more privileged position. The condition relating to regular income could exclude immigrants with temporary or seasonal employment from exercising their right to family reunion, even if their resources were sufficient to satisfy the needs of their families.
37. With regard to the derogation concerning the time elapsing between the submission of the application and the issuing of a residence permit to family members, there is a risk that this condition, which is aimed at ensuring better integration, could render the applicant’s situation more precarious, threaten family unity and thereby delay their integration.
38. Lastly, it is regrettable that this Directive does not make a more clear distinction between "between short and long term residents in the quality and extent of the protection offered to third country nationals".
4.3. Family reunion procedures
39. In some receiving countries applications may be made by the applicant in the country itself (e.g. CzechRepublic and Estonia) or lodged with diplomatic representations in other countries (Denmark, Sweden and the United Kingdom) or, as in most cases, both possibilities exist.
40. As a rule, applications are lodged with the national office responsible for asylum and immigration. This office may be answerable to the Ministry of the Interior, the Ministry of Justice, the Ministry of Foreign Affairs or directly to the Cabinet. The same office usually both takes the decision and issues the authorisation, though this may be the responsibility of a higher authority.
41. The EU Directive[12] states that applications must be submitted in the receiving member state or in the family’s country of origin. Except in special circumstances, the family member who is the subject of the reunion application should remain outside the European Union during the procedure. Member states will be allowed a maximum of 9 months to examine the application. A number of supporting documents must be provided and reasons must be provided for any refusal to grant the application.
4.4. Reasons for refusing to authorise family reunion
42. A refusal to authorise family reunion may be given, as stipulated in Article 6 of the EU Directive, if the applicant is deemed to constitute a threat to public order; this may cover a conviction for a serious offence, or a threat to public security and public health.
43. An application may be rejected or withdrawn if one of the required conditions is not fulfilled, if the sponsor and his or her family members no longer have a family life or if there is firm proof that false information has been submitted. Furthermore, under the 1951 Convention and the procedures applied by states, refugee status may be refused to a member of the family who falls into one of several specified categories[13].
4.5. Right of appeal
44. As advocated in Article 18 of the EU Directive, the refusal to authorise or renew family reunion may be challenged before an independent body in the vast majority of European countries. The long time it takes to complete these procedures can make subsequent family reunion impossible, as one of the family members may have died or the children may no longer be minors. Sometimes the departure of the persons concerned has to be authorised by the country of origin and this may add several months to the procedure.
5. Statistics concerning the right to family reunion in the Council of Europe member states
45. It is sometimes difficult to obtain precise information on migratory movements on account of the difficulty of harmonising definitions and arrangements. Several Council of Europe member states claim that they do not have any separate statistics for persons admitted to the country to join their family.
46. In some Council of Europe member states, a few dozen applications and residence permits are issued every year on grounds of family reunion – in other countries there are tens and sometimes hundreds of thousands of applications. At 1 January 1999 there were over 230,000 immigrants in Italy with valid residence permits obtained on grounds of family reunion, 30,000 of which were issued in 1998. 22,000 immigrants were admitted on these grounds to Sweden and Switzerland and 10,320 in Austria. 55,000 applications for family reunion were submitted in Germany in 1997; 13,200 applications were submitted in Spain, 12,000 in the Netherlands. In the year 2000 in France 20,459 people benefited from family reunion - 17,640 as persons living abroad at the time of the application (17.9% more than in 1999), 2,310 as persons already in France granted leave to stay (23.7% more than in 1999) and 509 under the review procedure provided for in the Ministry of the Interior's circular of 24 June 1997. In total, 22,459 members of foreigners' families were granted permission to live in France in 2000, a slight increase (3.2%) compared with 1999.
47. In another group of European countries numbers are lower. the available figures concerning the number of immigrants reunited with their families in 1997 are: Norway – 6,500; Belgium – 4,000; Denmark – 2,025; Latvia – 1,200; Finland – 464 entries and 947 applications, of which 52% were successful; Ireland – 380 (1991-97). In a third group of Council of Europe member countries there are only about a dozen applications per year: Iceland, CzechRepublic, Bulgaria, Hungary.
6. The rights granted to the sponsor and family members
48. All immigration legislation should be based on two principles: equality and security. Equality presupposes, as we have seen, equal treatment between nationals of non-EU member states and citizens of the European Union, and equal treatment between men and women. The principle of security is also an important one as secure resident’s status is an indispensable factor in any policy designed to integrate immigrants into the host society. Both principles have major implications for the status of persons admitted for family reunion.
49. As stated in the study on "The legal status of persons admitted for family reunion"[14] "unequal treatment as regards employment and social rights will lead to different treatment of minorities and social exclusion. If a spouse (or, in several states, a cohabitee) has less de jure access to the labour market because of national law, that law has established inequality between spouses, in breach of the principle of the right to sexual equality. The principles also apply where a marriage (or, where relevant, a cohabitation) ends due to death or divorce or is affected by separation. Unless the family member has acquired independent rights to stay, he or she may have to leave the state in question. (…) Furthermore, where there are children of a relationship or a lengthy stay in the host state, expulsion in such cases may breach the protection of private and family life pursuant to Article 8 ECHR."
6.1. Residence status of family members
50. As a general rule, a family member is given the same status as that of the sponsor, unless of course the latter is a citizen of the host state. However, the above study showed that the arrangements for implementing this principle vary considerably from one Council of Europe member state to another, depending on whether the sponsor has temporary or long-term resident’s status and whether that right is to be applied to the sponsor’s spouse or child. More favourable criteria apply to the family members of nationals or long-term residents. Similarly, children may be given different residence status, depending on their place of birth or their age.
51. The duration of the transitional period varies in the Council of Europe member states. For example, it can be one year in the United Kingdom, two years in Spain France or Sweden, three years in Denmark and Norway, five years in Greece, Hungary, Latvia, and Switzerland.
52. Article 13 of the EU Directive[15] states that "as soon as the application for family reunification has been accepted, the member state concerned shall authorise the entry of the family member or members." The member state concerned will grant the family members a first residence permit of at least one year’s duration. This may be renewable. However, the duration of the residence permits granted to the family member(s) must not, in principle, go beyond the date of expiry of the residence permit held by the sponsor. Article 15 provides that "not later than after five years of residence (…) the spouse or unmarried partner and a child who has reached majority shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor." The member state may extend this right to relatives in the direct ascending line. However, the article states that the conditions relating to the granting and duration of the autonomous residence permit are to be established by national law.
6.2. Divorce or death of the sponsor
53. At the end of the transitional period during which the status of the family members depends on that of the principal right holder, family members acquire rights in their own name, but until that period has expired, they may be deported in the event of separation, divorce or the death of the principal right-holder.
54. It should be remembered in this connection that the right to family life and privacy, enshrined in Article 8 ECHR, and as interpreted by the European Court of Human Rights, protects against expulsion after divorce where there is other established family or private life in a state. Presumably Article 8 also applies upon death or illness of, or separation from the principal right-holder if a person has other, independent family or private life.
55. Article 15 of the EU Directive[16] states that "in the event of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, an autonomous residence permit may be issued, upon application, if required, to persons who have entered by virtue of family reunification."
6.3. Restrictions on deportation or expulsion
56. In many cases, deportation procedures represent new infringements of the right to family life. Sometimes, the persons in question marry nationals of the host country, or have children who have the nationality of that country. If they are obliged to return to their country of origin, the family may be forced to separate. Either the deported persons are obliged to abandon their wives and children or the latter have to follow them to a country which is often totally unknown to them.
57. The Council of Europe member states, reflecting the case-law of the European Court of Human Rights, as a general rule provide for protection against expulsion during the transitional period, primarily as regards children under the age of majority, or if the family has been destroyed following marital violence. However, the nature of this protection varies considerably from one country to another and depends on the length of residence and the place of birth of the family members concerned.
58. There have been cases[17] where the European Court of Human Rights found that the expulsion of foreign nationals constituted a violation of Article 8 of the ECHR. Although this Article does not grant the right to reunion as such, it does, however, limit the exercise of states’ discretionary powers with regard to controlling the entry and deportation of foreigners.
6.4. Access to the labour market
59. Here, there are many differences among Council of Europe member states. Certain countries (France, Netherlands, United Kingdom) grant immediate access to the labour market; in others (Germany, Hungary, Latvia, Norway, Sweden and Switzerland) access is made easier for family members of citizens or long-term residents.
60. Article 14 of the EU Directive states that "The sponsor’s family members shall be entitled, in the same way as the sponsor, to: (a) access to education; (b) access to employment and self-employed activity; (c) access to vocational guidance, initial and further training and retraining." However, there is a restriction in that the said Article stipulates that "member states may decide according to national law the conditions under which family members shall exercise an employed or self-employed activity." These conditions may set a time limit which must in no case, however, exceed 12 months.
6.5. Access to social rights
61. In principle, all legal residents and their family members have equal access to social rights, particularly as regards social security and medical care. This is the case in France, Hungary, Sweden and Switzerland. However, sometimes, such access is subject to waiting periods (Norway, Latvia), income conditions or acquisition of long-term residence status (United Kingdom). Very often, cover is inferior to that of citizens despite the requirement for equal treatment laid down in international legal instruments.
6.6. Political rights
62. In certain Council of Europe member states, such as Spain, Hungary, Norway, the Netherlands and Sweden, some categories of non-national residents have political rights in local elections, after a certain period of residence. Other countries, such as Germany, France and Latvia do not provide for voting rights for non-nationals or provide them only for nationals of other EU member states.
63. It should be pointed out that the Convention on the Participation of Foreigners in Public Life at Local Level[18] provides for voting rights in municipal elections after five years of residence for foreigners, irrespective of their nationality.
7. Socio-economic aspects of family reunion
64. Family reunion helps bring about socio-cultural stability which helps nationals of other countries integrate more easily into their host country. The prolonged separation of family members can give rise to serious personal and social problems. Where they have close links with a person already settled in the host country, most immigrants admitted under family reunion find it easier to integrate themselves.
65. Several Council of Europe member states have launched special programmes for the integration of families which have been reunited. Nonetheless, a number of specific problems remain. Social and cultural integration often presents special problems for women immigrants.
8. Conclusion
66. Any immigration policy has a duty to uphold the principles of equality and security, and to comprise a human dimension. The right to family life is one of the basic rights and one which is secured by international legal instruments.
67. Given the personal and social problems caused by the separation of families, Council of Europe member states should apply a broad and generous interpretation in deciding on the definition of family and the conditions required. A restrictive approach to the right to family reunion would exacerbate unequal treatment between and nationals of non-member countries and/or refugees and citizens of the European Union and other Council of Europe member states, which in the case of the EU would be contrary to the principles set forth at the Tampere European Council.
68. As family reunion is one of the measures for managing immigration, legal guarantees are required to safeguard this right and protect individuals from arbitrary action on the part of the public authorities.
69. In keeping with the position adopted by the Committee of Ministers[19], member states should ensure that their legislation provides for measures, such as the right of appeal, to protect family members against expulsion, and to guarantee equal access to the labour market, social rights, and subject to certain conditions, participation in political life for persons admitted under family reunion.
70. The European Council Directive is currently the subject of an appeal lodged with the European Court of Justice by the European Parliament. The Assembly hopes that these proceedings will enable genuine harmonisation of the right to family reunion from the standpoints of definition of the family unit, conditions of residence and age and integration criteria and with regard to associated rights.
71. In most member states, procedures with regard to family reunion show that the Assembly’s recommendations are still of current concern and can only be reiterated.
Reporting Committee: Committee on Migration, Refugees and Population.
Reference to committee: Doc. 9436, Reference No. 2724 of 29.5.2002.
Draft recommendation unanimously adopted by the Committee on 10.3.2004.
Members of the Committee: Wilkinson (Chairperson), de Zulueta (1st Vice-Chairperson), S�ndergaard (2nd Vice-Chairperson), Branger (3rd Vice-Chairperson), Akg�n, Akhvlediani, Alibeyli, de Ar�stegui, Bernik, Bilozir, Bousakla, Braun, Brinkel, Brunhart, Cabrnoch, �avusoglu, Christodoulides, Cilevics, Cliveti, Dacic, Danieli, Debarge, Debono Grech, Dedja, Dmitrijevas, Einarsson, Err, Fedorov, Filipiov�, Freiherr von und zu Guttenberg, Grissemann, Grzesik, Grzyb, G�l�i�ek, Hagberg, Hancock, Higgins, Hoffmann, Ilascu, Iwinski, Jovaševic, Lord Judd, Karpov, Kirilov, K�s�-Kov�cs, Kulikov (alternate: Provkin), Kvakkestad, Lambert, Le Guen, Liapis, Loutfi, Masi, Naro, Nasufi, Nessa, Olin, Popa, Prijmireanu, Puche, Pupovac, Raguž, Rakhansky, Reymann, Saks, Shakhtakhtinskaya, Skarph�dinsson, Slutsky (alternate: Zavgayev), Stamm (alternate: Zapfl-Helbling), Stoisits, St�bgen, Szab�, Tekelioglu, Tk�c, Torosyan, Vera Jardim, Verivakis, Vermot-Mangold, Vieira, Wray (alternate: Foulkes), Y��ez-Barnuevo, Zhirinovsky.
N.B. The names of those members present at the meeting are printed in italics.
Secretariat of the Committee: Mr Lervik, Mrs Nachilo, Mrs Sirtori-Milner
[1]The terminology used in the field of immigration and asylum legislation is somewhat inconsistent. Many expressions use various legally distinct terms to refer to one and the same thing. The concepts applied in the various countries are also different. In this report we use the term 'refugee' as defined in Article 1 of the 1951 Geneva Convention on the status of refugees. "Migrant" refers to a person who voluntary leaves his/her country to settle elsewhere for different reasons than a refugee, whose reasons are set forth in the 1951 Convention. Migrants may leave their country of origin for family or personal reasons. If their reasons are purely economic then they are economic migrants and not refugees. The concept "migrant worker" is defined in the European Social Charter and the European Convention on the Legal Status of Migrant Workers drafted by the Council of Europe. Persons who apply for refugees status, but whose case is still under examination, are referred to as "asylum-seekers".
[2] EU Council Directive 2003/86/EC on the right to family reunion (22/09/2003). L 251/12.
[3] Op cit.
[4]Annual tripartite consultations on resettlement, para. 19, Geneva, 20-21 June 2001.
[5] Conclusions of the UNHCR Executive Committee (EXCOM) programme. Conclusions Nos. 9 (XXVIII) – 1977, 15 (XXX) – 1979, 22 (XXXII) - 1981, and 24 (XXXII) - 1981.
[6] Recommendation on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe.
[7] Recommendation on the temporary protection of persons forced to flee their country.
[8] Op. cit.
[9] Recommendation R (99) 23, 15 December 1999.
[10] Op. cit.
[11] Op. cit.
[12] Op. cit.
[13] Persons who are already receiving protection from the United Nations, who are not considered applicants for international protection or who do not deserve such protection because they have committed war crimes, serious non-political crimes or acts contrary to the purposes and principles of the United Nations – 1951 Convention, Article 1 sections D, E, and F.
[14] The legal status of persons admitted for family reunion - A comparative study of law and practice in some European states. Steve Peers, Robin Barzilay, Kees Groenendijk and Elspeth Guild. Council of Europe Publishing, August 2000.
[15] Op. cit
[16] Op. cit.
[17] Article 8 is referred to in 322 judgments of the European Court of Human Rights. Among the leading cases, mention can be made of Abdulaziz, Cabales and Balkandali v. the United Kingdom, G�l v. Switzerland, Nsona v. the Netherlands, Ahmut v. the Netherlands, Moustaquim v. Belgium and Beldjoudi v. France.
[18] The Council of Europe’s Convention on the Participation of Foreigners in Public Life at Local Level which entered into force in 1997.
[19] Recommendation (2002) 4 on the legal status of persons admitted for family reunification.