EU States Reach Landmark Agreement on Family Reunification Rules
By Veysel Oezcan
Humboldt University Berlin
April 1, 2003
After three years of thorny negotiations, the European Union’s interior ministers have reached a political agreement on the right to family reunification of third-country nationals who reside lawfully in an EU member states and have realistic prospects of obtaining the right of permanent residence.
Provisions of the agreement, which was reached in late February, must be incorporated into the national legislation of member states during the two years following its adoption by EU countries. After two years, the European Commission will report on the extent to which the agreement has been applied, and then may propose amendments to key articles.
A key sticking point in the effort to reach an agreement had been efforts to harmonize national legislation among member states, an aim negotiators eventually abandoned in favor of setting minimum standards within a broad framework. The United Kingdom and Ireland have opted out of the agreement, which represents the first such instrument ever adopted by the EU in the area of legal immigration. Denmark automatically opts out of agreements of this sort which are part of the European Union common legislation.
The minor children affected by the agreement must be below the age of majority set by the law of the member state concerned and must not be married. Under the directive resulting from the agreement, member states are not allowed to adopt an age limit below 12 years. Country-by-country exceptions are allowed, however, regarding the maximum age of children. At their discretion, member states may require that applications of minor children planning to unite with their parents be submitted before reaching the age of 16. Children 16 years and above, therefore, may be refused permanent residence.
Furthermore, if a child over 12 and under the age of majority arrives at a member state separately from his or her parents, then the state can apply various questions related to integration and make a decision about granting the right to permanent residence. Member states are allowed to verify whether the child meets the conditions for integration provided for by national legislation already in place when the directive was adopted. If the child does not meet the conditions for integration – in Germany, for example, language skills are intended as a measure – permanent residence could be refused. Member states cannot, however, make the same judgement about permanent residence if the child arrives in the company of his or her parents.
In a statement to the press, EU Commissioner for Justice and Home Affairs António Vitorino welcomed the directive, but lamented that the original draft had been watered down. The original draft had specifically regulated the access of reunified family members to national labor markets. Under the current directive, however, the national legislation of individual states will regulate this access.
For the purposes of family reunification requests, unmarried couples will be treated as married couples only insofar as the laws of individual member states allow. This has potentially significant implications for unmarried and same-sex partners, whose treatment in family reunification cases varies from country to country.
In cases where a married individual is attempting to reunite with a spouse outside the EU, member states may set a minimum age of 21 for both parties “in order to ensure better integration and to prevent involuntary marriages.”
In addition, the directive stipulates that adult unmarried children may be reunified with their parents if the children cannot earn a living because of health problems.
Parents coming from outside the EU would be allowed to reunite with children already in the EU under certain circumstances. These parents would be allowed to immigrate if the third-country national or the joining spouse paid for the living expenses, and if the parents had no other family ties in the sending country.
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