European Migration and Diversity

Immigration, Integration and Asylum Forum

Family reunification under strain: restrictive v. flexible policies

17 November 2011

Harmonisation of national rules on family reunification is necessary to prevent “migration tourism” and ensure coherence with EU objectives in the field of migration, argued Fabrice de Kerchove, a project manager at the King Baudouin Foundation.

Controversy surrounds issues like assessing migrants’ language skills before granting residence permits, requirements to monitor the language skills of migrant children at school, and the treatment of migrant women, De Kerchove said: legal intricacies from one member state to another can be very different.

Debate on family reunification rules in EU member states is highly dynamic at present, said Yves Pascouau, senior policy analyst at the European Policy Centre, presenting the results of his publication entitled ‘Conditions for family reunification under strain – A comparative study in nine EU member states’.

The launch of the European Commission’s Green Paper and the signature of a European Pact on Asylum and Immigration have ensured that family reunification issues are rising up the agenda at both EU and national level, Pascouau explained.

“Family reunification is constantly evolving and national rules are being modified. The European Court of Justice’s arrival in the field has changed the landscape by recognising for the first time the right to family reunification. This individualised cases, ensured that children’s rights are respected and limited member states’ margins of manoeuvre,” the analyst said.

“The landscape is changing: the Lisbon Treaty gave powers to the European Parliament in this field and brought with it the Charter of Fundamental Rights, which includes family reunification,” he added.

“Very few member states are interpreting EU rules in a manner that benefits family reunification. But the ECJ has only been seized twice – this is a sign that the European Commission isn’t working very hard to enforce the rules,” Pascouau said.

“The study shows that there are very diverse systems in place regarding the reunification of marriages, but the trend is to tighten the rules and the conditions of marriages are under scrutiny,” said Sylvie Sarolea of the Université Catholique de Louvain-la-Neuve

For purposes of family reunification, most EU member states will only recognise a marriage concluded under the following circumstances:

1.       It must have been freely undertaken.

2.       It must not have been concluded for economic reasons, or to gain access to benefits.

3.       It must respect public law.

4.       It must be a lasting and durable relationship, without early separation.

“If one partner has too much responsibility for the other, the marriage won’t always be recognised,” Sarolea warned.

The Commission’s Green Paper on family reunification takes as its starting point the 2003 EU directive. “But that’s a very flexible piece of legislation and implementing it was optional,” said Philippe de Bruycker of the Université Libre de Bruxelles.

Nevertheless, despite this flexibility “we’re seeing convergence in national legislation”. But this convergence is more political than legal in nature, De Bruycker said.

Stricter rules regarding finance, employment and accommodation reveal a Europe-wide trend of tightening conditions for family reunification. However, this is relative and not all member states are approaching the issue from the same starting point, he explained.

The Stockholm Programme adopted by the EU in 2009 calls for a more vigorous immigration policy that grants migrants the same rights as citizens of the Union – and the European Commission first identified family reunification as an essential tool for integrating immigrants way back in 1961, said Kees Groenendijk of Radboud Universiteit, Nijmegen.

He called for the current EU directive to be implemented more effectively before deciding whether to produce a new one. 

“The goal of the Green Paper is to open the debate on family reunification on the basis of the current directive and implementation report,” said Diane Schmitt, head of unit for immigration and integration at the European Commission.

The Green Paper will address issues like whether or not more harmonisation is needed in the field, or simply more coordination, or just guidelines. The Lisbon Treaty brought with it more co-decision between MEPs and member states, and more qualified majority voting, heralding “a revolution” in the field since the first directive was adopted, Schmitt explained.

Recent years have seen few opportunities to clarify the directive: facts and figures from the member states are sparse and there’s a lack of case law to fall back on at the European Court of Justice.

Procedural issues include how to tackle fraud and marriages of convenience, and who should pay legal costs.

The deadline for responding to the Commission’s consultation is 1 March 2012. “We want reactions from member states and civil society,” Schmitt said.

“In the Netherlands we have a minority government supported in parliament by a far-right party. The coalition agreement speaks of the need to reduce immigration, and the Dutch immigration minister has published a paper on how to achieve this in Europe,” said Peter Diez, deputy director of the migration policy department at the Dutch Ministry of Home Affairs.

The paper calls on the EU to enforce current rules effectively. Reducing the number of family immigrants isn’t a goal as such, Diez explained. “We agree with the Commission that family reunification is a right, but it’s not unconditional,” he added.

“Policymakers don’t integrate migrants. Only they can do that,” Diez insisted. But he conceded that “we can facilitate it by combating discrimination,” citing the workplace as an example.

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