23 May 2002
On 3 May 2002 the Commission circulated a revised version of the proposed directive on family reunion (COM (2002) 225). The following analysis summarises the changes from the prior text proposed by the Commission (COM (2000) 624, amending COM (1999) 638), and compares the Commission proposal to the drafts drawn up by Council Presidencies.
It can be seen that except for a few points, the latest Commission proposal suggests considerably lower standards than its prior proposal. As compared to the recent versions under discussion in the Council, the Commission has simply adopted much of the proposed text suggested by certain Council Presidencies in its entirety, even where some delegations were still holding out for a text setting higher standards than the Council Presidency proposals. On several points the Commission has proposed standards even below the standards proposed by any Council Presidency text, although conversely there are a few points where the Commission has instead proposed a higher standard than the Council texts--although in most cases not a much higher standard.
The proposed Directive was addressed at length in Council working parties, SCIFA, Coreper and the Council itself until the end of September 2001, when discussions ceased. The Laeken European Council then asked the Commission to prepare a proposal by end April 2002.
During the Swedish Council Presidency, the text had been weakened dramatically to gain acceptance. Council doc. 8209/01, 2 May 2001 gave the full text of the weakened proposal, with delegations' comments. A later full version sent to the May 2001 JHA Council (doc. 9019/01, 21 May 2001) further lowered the standards proposed, and appears to be the final full text discussed by the Council. It is obviously the source of much of the Commission's revised proposal.
The Belgian Council Presidency then attempted to move forward by dividing family members more clearly into three categories (spouse/minor children; unmarried partners; and dependent ascendents/sick adult children), with a distinction in the status of each category, on top of the basic distinction that admission would only be mandatory for the first of these three groups, as proposed already in 9019/01. Obviously the Commission has rejected the idea of such a distinction as regards status. However, the Belgian proposal for aspects of the rules on penalties (Article 16(1) and 16(3), first appearing in doc. 10922/01 (20 July 2001)) has been adopted by the Commission.
Amendments to the text
Several clauses have been amended or dropped to correspond to changes in the text, in particular as regards unmarried partners, ascending family members and family members of EU citizens. Clause 3 now refers to the EU Charter of Fundamental Rights, in place of the ECHR, while Clause 7 now refers to Laeken, in place of the 1998 Vienna Action Plan. Also, clause 11, which indicated that legislation on family reunion for persons with subsidiary protection should be agreed as soon as possible, has also been dropped. The EM (explanatory memorandum) to the 2002 version indicates the Commission's belief that such persons should be dealt with in a second phase of legislation.
Chapter I (Arts. 1-3) changes
1) EU citizens' family members are excluded.
This is a huge reduction of standards compared to COM (2000) 624. It is also below the standard set in any Council text. In 8209/01, only three MS objected to the inclusion of such persons within the Directive. The EM indicates that the Commission will make a proposal on this group as soon as the proposed Directive on EC nationals' right to move and reside freely (COM (2001) 257, of May 2001) is agreed. However, there is no indication when that will be. It should be kept in mind that the majority of EU nationals with third-country national family members likely have an immigrant and ethnic minority background.
2) The Directive will only apply where the applicant has 'reasonable prospects of obtaining the right of permanent residence' (Art. 3(1))
This is a substantial reduction in standards compared to COM (2000) 624. It confirms the position as far back as 8209/01, which attracted no reservations. However, the wording is different: the Council texts referred to 'long-term residence', which is potentially a different concept and an easier threshold to cross. The proposed revised wording is very similar to the 1993 Ministers' resolution on family reunion, and violates principles of clear and precise drafting agreed by the institutions.
3) The Directive will permit the EC or Member States to apply higher standards following conclusion of later international treaties, not just earlier international treaties (Art. 3(4)(a))
This raises standards compared to COM (2000) 624. It confirms the position as far back as 8209/01, which attracted no reservations. The reference to the revised CoE Social Charter in Art. 3(4)(b) is also new.
4) The Directive will permit Member States to apply higher standards generally (Art. 3(5))
This raises standards compared to COM (2000) 624. It confirms the position from 9019/01, which attracted at least one reservation.
5) The Directive provides that certain provisions 'may not have the effect of introducing less favourable conditions from those which already exist in each Member State' (Art. 3(6))
This raises standards compared to COM (2000) 624. It is also more positive than the Council texts, which contain no comparable clause. A 'standstill' provision was suggested in the ILPA/MPG proposed directive on family reunion (in The Amsterdam Proposals) and in ILPA's reaction to the 1999 Commission proposal.
The suggested provision in the 2002 Commission proposal refers to the scope of family members permitted to join, the 'stable resources' criterion and its application, and the waiting period before entry. It does not cover any other provisions. It is questionable whether this provision would have the effect of a 'standstill' as the Commission suggests in the EM, as it is rather more similar to a 'non-regression' clause found in social legislation, which merely exhorts the MS not to lower their standards to the minimum standards found in EC legislation.
Chapters II-IV changes (Articles 4-8)
6) Admission of unmarried partners and connected children is optional (Art. 4(3))
This lowers standards compared to COM (2000) 624. It confirms the position from 9019/01, which attracted reservations (apparently from both sides). However, as noted above, the Belgian idea of setting lower substantive standards for this group in addition to making it optional to admit them has not been adopted by the Commission.
7) Admission of ascending relatives and adult children is optional (Art. 4(2))
This lowers standards compared to COM (2000) 624. It confirms the position from 9019/01, which attracted reservations. The condition relating to family support now refers to 'proper family support'; the effect of this change is unclear. Also, the adult children must be unmarried and dependent. The former criterion dates back to 8209/01 (although the reaction of delegations to it is not clear). The latter criterion is new and more restrictive compared to COM (2000) 624 and the Council texts, although arguably it was implicit all along.
8) The conditions regarding minor children are different (Art. 4(1))
First of all, admission of children when custody is shared is optional (Art. 4(1)(c)). This lowers standards compared to COM (2000) 624 and all the Council texts.
Secondly, there is a new option as regards children, where existing legislation sets an admission age as low as twelve. This lowers standards compared to COM (2000) 624 and all the Council texts.
Thirdly, Article 4(1)(b) requires MS to admit adopted children where a decision is 'automatically enforceable due to international obligations' or 'must be recognised in accordance with international obligations'. Both raise standards compared to COM (2000) 624; the former dates back to 8209/01, while the latter dates back to Council doc. 11881/01, 17 Sept. 2001.
9) The children of polygamous marriages cannot be admitted (Art. 4(4))
This lowers standards compared to COM (2000) 624 (see Art. 5(2) of that proposal, which required entry of such children if the best interests of the child required it). The wording dates back to 8209/01, where it attracted no reservations.
10) MS may set a minimum age for admission of spouses (Art. 4(5))
This lowers standards compared to COM (2000) 624. The wording dates back to 9019/01, where it attracted no reservations.
11) MS can decide whether the applicant or the family members apply (Art. 5(1))
This alters the position compared to COM (2000) 624. The wording dates back to 8209/01, where it attracted no reservations.
12) MS can carry out interviews to check on the veracity of the application (Art. 5(2))
This alters the position compared to COM (2000) 624. The wording dates back to 8209/01, where it attracted no reservations.
13) The consideration of in-country applications is only optional (Art. 5(3))
This lowers standards compared to COM (2000) 624. The wording dates back to 8209/01, where it attracted no reservations.
14) The MS authorities have nine months to respond to an application, with a 12-month response permissible 'in exceptional circumstances'.
This lowers standards compared to COM (2000) 624, which required a response within six months with no exceptions. The nine-month wording dates back to 8209/01, where it attracted reservations; 9019/01 then suggested a possible extension for the reply with no time limit set (this attracted reservations). Compared to that, the Commission proposal is an improvement. The provision about consequences of missing the time limit being for national law to decide takes account of an Austrian reservation to 8209/01.
15) Residence permits can be withdrawn after entry on public policy, etc. grounds (Art. 6(2))
This lowers standards compared to COM (2000) 624. The wording dates back to 8209/01, where it attracted one reservation, although there were no reservations in 9019/01.
16) The 'stable resources' criterion has been altered (Art. 7(1)(c))
The changes lower standards compared to COM (2000) 624. First, the criterion is to be evaluated 'by reference to the nature and regularity or the resources'. Second, Member States may apply the test again when renewing the residence permits for the first time (previously they could do so only on entry), although family members' contributions must be taken into account. The wording dates back to 8209/01, where there was a two-year time limit which attracted reservations from both sides. Subsequently, the Belgian Council Presidency suggested different time limits for the three different categories of family members; the Commission has implicitly rejected this approach. The idea of a time-limit expiring on the first renewal of the residence permit is the Commission's suggestion.
17) The waiting period has been extended (Art. 8)
This lowers standards compared to COM (2000) 624. The waiting period goes from one year to two years, with a possible extension to three years if existing law permits it. The two-year period dates from 8209/01, although Germany entered a reservation requesting a longer wait. 9019/01 then suggested that a two-year maximum should exist 'in principle', which could be extended 'in particular circumstances' (this attracted reservations). Subsequently, the Belgian Council Presidency suggested different time limits for the three different categories of family members; the Commission has implicitly rejected this approach.
Chapter V changes (Articles 9-12)
The restructuring of all provisions on refugees' family members into one Chapter follows the Council's texts from at least as far back as 8209/01.
18) The scope of family reunion has been reduced (Arts. 9 and 10(1))
Two changes lower standards compared to COM (2000) 624. First, the Commission suggests that MS have the option to limit refugee family reunion in this Chapter to those who had family relationships with refugees before their refugee status. This provision is not found in any of the Council's prior texts; it reflects only a reservation from one MS (France) in 8209/01. It is not clear at what point the refugee status should be considered to date from, or whether, if a MS exercises this option, whether refugee families formed later will fall within the scope of the Directive at all for that MS. Secondly, the general limitations on the scope of family members in Article 4 have a knock-on effect on family members of refugees (this follows the Council text from 9019/01), except that the possibility of banning teenagers from family reunion will not apply for refugees.
19) Admission of unaccompanied minors' family members is mandatory (Art. 10(3))
This increases standards compared to COM (2000) 624 and any of the Council texts. Moreover, the right has been expanded by the addition of legal guardians.
Chapters VI-VII (Arts. 13-22)
20) There is no obligation to issue transit visas (Art. 13(1))
This lowers standards compared to COM (2000) 624. The change confirms the position in 8209/01, which did not attract any reservations.
21) The early family members' permits will be issued until the family member has long-term resident status (Art. 13(2))
This is a change compared to COM (2000) 624, which did not set a limit on receiving short-term permits. It differs from the Council texts in referring to the long-term residence Directive (which has not yet been agreed) and in requiring a permit of at least one-year's duration. The Commission does not consider the interaction of the Directive with more generous national forms of long-term residence status, which would be permitted by the long-term residents' directive.
22) Access to employment, self-employment, education and vocational training follows the status of the applicant (Art. 14(1))
This lowers standards compared to COM (2000) 624, which required the same status as EU citizens. This confirms the position in 8209/01, which attracted no reservations.
23) The right to an independent residence permit is subject to a five-year wait (Art. 15(1))
This lowers standards compared to COM (2000) 624, which provided for a four-year period. In the Council text, the four-year period had been maintained, but had attracted three reservations from different sides in 8209/01. The EM argues that this change is necessary to correspond to the long-term residents' proposal, but there is no cross-reference to that Directive in this paragraph.
24) There is no waiting period for an independent permit in 'emergency circumstances' (Art. 15(3))
This raises standards compared to COM (2000) 624, which provided for a one-year wait. This confirms the position of the Council dating back to 8209/01, which had only attracted a Spanish reservation in connection with the reference to separation.
25) The conditions for cancellation, etc. are far broader (Art. 16)
This lowers standards compared to COM (2000) 624. Article 16(2) confirms the Council position back in 8209/01, which attracted no reservations, while as noted above, Article 16(1) and 16(3) adopt texts from the Belgian Council Presidency. Article 16(4) expands on the principle in the prior Article 14(2); its wording is taken from the text developed during the Belgian Council Presidency, although this paragraph had already been partly fleshed out in 8209/01. However, the previous general clause about penalties for breach (ex-Article 17) has been deleted.
26) The remedies clause has been amended (Art. 18)
The changes compared to COM (2000) 624 are the reference to national law, which confirms the Council position as far back as 8209/01 (attracting no reservations), and the reference to 'de facto and de jure' right to apply to the courts (which comes from the Commission).
27) There is a reference to the content of future amendments (Art. 19)
There was always a provision for a review with possible amendments, but this text for the first time states that amendments would be proposed as a priority to specific provisions: those concerning the scope, the permitted family members, the conditions of entry, the waiting period before entry, and the access to independent residence permits. It is explained in the EM that this proposal constitutes a first step and the EM suggests that the Commission is obliged to make such proposals. However, the wording of Article 19 does not expressly state such an obligation: the Commission need only propose such amendments as 'may appear necessary'. There is no indication of what the detailed content of such amendments should be.
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