sou · GQB313 · 2003-01-01 00:00:00 — Eftersom praxis för permanent uppehållstillstånd för nära anhöriga utanför kärnfamiljen alltjämt lär vara restriktiv, bör i stället tidsbegränsade tillstånd kunna utgöra huvudregel för att upprätthålla dessa släktkontakter. Kommitténs förslag bör kunna träda i kraft . Förslagen förväntas innebära att invandringen av nära anhöriga utanför kärn- familjen ökar och att den offentliga sektorn får ökade kostnader. That part of the committee's task which is accounted for in this report, has been to evaluate the provisions of the Aliens' Act concerning the immigration of relatives to . The task comprises three principal assignments. Firstly the committee is to evaluate the effects of those changes in the provisions of the Aliens' Act, concerning the immigration of relatives, that came into effect on the first of January 1997. Secondly it is to consider whether improvements can be made to the so-called "examination of seriousness" that is undertaken in connection with arranged marriages. Moreover, in the light of the evaluation of the legal provisions that came into force in 1997 and taking into account developments within the EU, the need for changes to be made to the current provisions of the Aliens' Act concerning the right of relatives to settle in , should be considered, particularly with respect to cases where all of a person's close relatives are here ("final link" cases). Part of the assignment is to make comparisons with the other Nordic countries and other relevant countries, while taking into consideration the possibility for close relatives to maintain contact by granting visas and permits for visits. Parallel with the work of the committee, the issue of reuniting families has been the subject of harmonisation work within the EU. Since this work is still in progress, it has not been possible to take this proposal of the directive into account to any major extent. Section 2, sub-section 4 of the Aliens' Act (1989:529), UtlL, regulates those cases in which permits may be granted to a foreigner who is related to somebody who is resident in or has been granted a permit for the purpose of settling here. Those relatives included in parts 1-3 of the first section are spouse and cohabitee (and comparable relationships), unmarried children of the person with family ties in if they are, or have been, living at home, together with any other close relative who formed part of the same household as the person in question. In addition, part 4 of the first paragraph stipulates that permits may be given to a foreigner who in some other has a special connection to . In its present wording, the paragraph came into force on the first of January 1997. In the paragraph it is stated which foreigners may be given permits for various reasons. In the preamble it is stated that these people are in principle entitled to permits. If spouses or cohabitees have been permanently living together abroad, they will be granted permits. A prerequisite for granting permits to a spouse or cohabitee in a relationship that has not previously been established, is that the relationship is deemed to be a serious one and that there are no particular reasons not to grant such permits. The testing of seriousness that is carried out does not entail any checking of the general suitability of the relationship or the moral or other qualities of the parties. The purpose is primarily to prevent any circumvention of the immigration regulations and to protect parties in the relationship who risk being exposed to violence or any other serious violation of the person. The testing usually means that the applicant is interviewed at a foreign authority and the person with whom they have family ties is interviewed at . A large number of questions are asked concerning the parties' knowledge of each other and their families. If approval is given, a permit of limited duration can be granted, which can be extended if the relationship is a lasting one. In certain exceptional cases a permit can be granted even if the relationship has ceased. The deferred testing of immigration lasts two years as a rule. So-called arranged marriages are accepted as an attachment if there is a basis for them in the tradition and cultural pattern of the country of origin. There is an age limit of 18 years for children. However, belonging to the parents' household can mean that permits are nonetheless granted in such cases to those who have attained the age of The ruling with respect to other categories of close relatives is that they can be given permits if, in their home country, they were part of the same household as the relative resident in . In addition there must be some form of dependence that makes it difficult for the relatives to live apart. The application to reunite the family must be made relatively soon after the relative has settled in . In exceptional cases the provisions of the first part of section 2 sub- section 4 of the Aliens' Act concerning a special connection to , can provide the grounds for permits for certain relatives who do not fulfil the requirements in accordance with points 1-3. This applies to those cases in which communality of the household has not existed, but where special reasons apply in the form of unusual and distressing circumstances. According to the Aliens' Act, the fact that the foreigner has proven means of support is not a prerequisite for granting a permit. For relatives of Nordic citizens and citizens of the EU to whom the EC regulation of 1968 concerning the free movement of labour apply, there are particular rules concerning the circle of relatives and the requirements with respect to means of support. There is also the opportunity for relatives to maintain contact by means of the rules concerning visas for visitors, and permits of shorter duration. According to statements made by the government, generosity should be the custom, but the assessment must take the risk of defection into account. Evaluation of the 1997 changes to the law and the need for changes to present regulations concerning the immigration of relatives As far as spouses and cohabitees are concerned, the changes in 1997 do not entail any difference in practice compared to previous regulations. Swedish regulations and custom are in agreement with international undertakings and what the committee considers to be reasonable. No changes are therefore proposed. The changes with respect to children entail a lowering of the age- limit from 20 to 18. A requirement was introduced that the child should be or have been living at home with the parents. It is the opinion of the committee that this requirement has resulted in an application of it that is inflexible. On these grounds, and taking into account what the proposed EG directive on reuniting families may entail, the committee proposes that the requirement that child is or has been living at home shall be dropped. As a result of changes in the law, a requirement for close relatives outside the nuclear family was introduced, whereby it was expressly required that the applicant was to have been part of the same household as the person in with whom they have family ties. Some form of dependency that makes it hard for relatives to live apart has to exist and has to have already existed in the homeland. The relative's application for a permit must be made relatively soon after the person with whom they have family ties has settled in . Also in 1997, the possibility of being given a permit solely on the grounds that all other close relatives were in ("final link" cases) was taken away. The new regulations entail a tightening up for parents, especially widows or widowers, who wish to be reunited with an adult child or adult children in . Unless the prerequisites according to point 3 in the first part of section 2 sub-section 4 of the Aliens' Act are fulfilled, the permit can only be granted in exceptional cases, i.e. only when there are particular reasons in the form of unusual and distressing circumstances. As far as close relatives outside the nuclear family are concerned, it is the opinion of the committee that these changes have had consequences that cannot be considered acceptable. It has, for example, become unreasonably difficult for an elderly parent who has fallen ill, or who has in some other way become dependent upon a child some considerable time after the child has settled in , to be granted a permit. It is therefore proposed that the requirements of a common household, prior dependency in the homeland and prompt application should be dropped. The prerequisites for permits for parents should instead be a requirement that there is dependency or other special reason and that there should be extraordinary circumstances for other close relatives outside the nuclear family. The fact that a person constitutes the "final link" can constitute such special reason or extraordinary circumstance. Moreover, as is clear from what follows, the main rule should be that the person with whom there is a family tie should be responsible for the maintenance of the foreigner. The examination of non-established relationships in general 's investigation has shown that although the current examination of seriousness is extremely time-consuming and extensive, it is felt to be a blunt instrument whose effect is relatively limited. therefore proposes that the regulations be partly revised. Among other things, the new regulations would entail the following: what is interesting in permit cases is getting a picture of whether the applicant and the person with whom they are connected really intend, and have made the decision themselves, to live together as a married couple or a state resembling marriage, and that it is this that constitutes the basis of the application. gets and the feeling one has that it is indeed a relationship that can form the basis for a permit, can be obtained by means of a less thorough investigation than the one that is conducted today. Such an investigation should comprise a smaller number of questions concerning the relationship of the parties, including the ability jointly to provide for their mutual maintenance. Moreover, in order to try to avoid the exploitation of vulnerable parties, records should always be checked to investigate the circumstances of the person with whom they are connected with respect to the possibility of a criminal background and previous marriages. A greater part of the investigation than is currently the case could be in writing. The result of this will be that permits should be granted if there are no particular reasons that argue against this. The examination of arranged marriages in particular By "arranged marriages" the committee means those marriages that have their basis in the traditions and cultural patterns of the country of origin, and in which somebody other than the spouses-to-be, often the families of the parties or other relatives, in some and with some form of justification have chosen that couple in particular to become spouses. Thus the term "arranged marriage" does not mean that the marriage was entered into in order to circumvent the legislation concerning immigration, even if such fake marriages do occur among both arranged marriages and other marriages. Normally, arranged marriages are viewed as non-established relationships if they really do constitute a cultural aspect of the tradition in the home country. Acceptance of this of entering into marriage has been deemed to entail that the same demands as those that apply to other forms of non-established relationships cannot be made: that the parties should know each other and have met. By means of previous studies, carried out by itself and others, the committee has been able to establish that arranged marriages primarily occur in countries where there is a powerful patriarchal ethos and where the ability of a woman to influence the choice of husband, , etc is limited. Given that the woman's role in the relationship is often that of an obscure one, this means that her ability to seek help for any problems that may arise in the relationship are limited. In those cases where the arranged marriage is entered into after the person with whom there are family ties has settled in , often the in which marriage is entered into does not significantly differ from the way that a Swedish man, for example, makes use of an agency to make contact with people abroad and enters into a relationship with a woman he has never met, or has previously only met to a limited extent. In none of these comparable cases is it a question of a family , but rather the forming of a new relationship. With respect to arranged marriages that are entered into after the person with whom they have family ties has settled in , there is no reason in such a case to make any other evaluation of the demands that can be made concerning the parties' knowledge of each other than those that are made in other cases of non-established relationships. They are thus to be evaluated in accordance with the same criteria as other relationships that are not established. The evaluation does not mean that no consideration at all should be given to cultural matters, but that, on the other hand, there are other considerations of equal weight. Another consequence of the issue of protection is that it is particularly important to discover whether the parties are entering into marriage of their own free will. When it comes to arranged marriages the investigations should therefore normally be oral. The maintenance requirement in particular Those limitations to the opportunities for relatives to immigrate that were implemented in 1997 constituted an important part of the measures taken to be able to fulfil the requirements of the decision of the Swedish Parliament to cut costs in expenditure area 8, Immigrants and refugees. The proposal of the committee means that the opportunities are once again somewhat widened. This in its turn means increased costs for the public sector and is a reason for the implementation of a maintenance requirement. Another reason is the consequential immigration that can be expected with the widening of the circle of relatives. Without the maintenance requirement, such consequential immigration is expected to become relatively large, considering the regulations in other EU countries and the nature of the discussions with respect to the EU harmonisation work in this area. There is another reason for the implementation of a maintenance requirement when it comes to the relationships that are not established. Such a requirement could constitute a protection for young people with family ties (primarily women) in , who have to interrupt their education in order to enter into an arranged marriage with persons from another country. For these reasons the committee proposes that the main rule for granting a permit where relationships that are not established is concerned and for close relatives outside the nuclear family, shall be that the person with family ties shall be responsible for the maintenance of the foreigner for a maximum of two years. The maintenance requirement comprises the normal living costs of the foreigner. The person with family ties should therefore have an income that covers both these costs and his or her own costs. The ability to provide shall be evaluated on the basis of what the person with family ties and the foreigner would have been entitled to retain in maintenance support according to the national norms specified in the Act (2001:453). The net income should also cover rent. When evaluating the ability to support, the foreigner's assets can also be taken into account. When it comes to close relatives outside the nuclear family, the ability of other relatives of the person with family ties to contribute towards maintenance can be taken into account. There may be special reasons to relinquish the maintenance requirement. Special reasons may be deemed to exist when the inability of the person with family ties to provide maintenance is due to special personal circumstances or involuntary unemployment. Another reason can be that the person with family ties has been granted a permit as a refugee or as someone else in need of protection and has only been in for a few years. Exceptions can also be made when the person with family ties is a minor. The exceptions mean, among other things, that even a person who due to involuntary unemployment is dependent on income support for his maintenance shall be able to be reunited with close relatives even if he or she lacks the capability to be responsible for their maintenance. Delayed investigation of immigration shall apply. This means that the foreigner is given a permit limited in time to one year, which can then be extended and become a permanent one on condition that the maintenance requirement is fulfilled. Even if the maintenance requirement is not fulfilled, the foreigner can be granted a continuation of the permit if there are compelling grounds for this. This might be the case, for example, if the person with family ties has been afflicted by involuntary unemployment or incapacity to work or there are other compassionate grounds such as the foreigner being aged and suffering from poor health. Previous experience has demonstrated that a not insignificant number of children come to to be reunited with people who are not really their parents. It has happened that the social services have been obliged to take charge of these children and place them in foster- homes. The problem is that the information on which the decision is based is often deficient when it comes to children from countries with inadequate national registration of the population and unreliable identity documents. In order not to make the reuniting of families impossible in such cases, lower standards of proof are required than is otherwise the case when it comes to matters of relationship. proposes that, in the best interests of the children, the possibility of using DNA analysis, paid for by the state, should be introduced in order to confirm an alleged relationship with respect to parents and children. The analysis is voluntary and can be done when sufficient information about the relationship in question cannot be acquired by any other means. Given the implementation of the possibility of offering a DNA analysis, it should be possible to demand the same degree of proof concerning children as is required of other family members. The issuing of visas and permits for visits considers that previous statements by the government concerning the importance of a visa policy that is as generous as possible should have a greater impact. It is important that the opportunities for relatives to visit should not be restricted more than is necessary. The presumption, when an application is considered, must be that it is not a question of a person who intends to defect. A previous application for a permanent permit should not necessarily affect in a negative fashion the judgement as to whether a permit can be granted. Since the norm concerning permanent permits for close relatives outside the nuclear family is still likely to be a restrictive one, permits of limited duration should instead be the principal rule in order for these contacts between relatives to be maintained. Implementation of the proposals It should be possible for the proposals of the committee to come into force on the first of 2003. The expected result of these proposals is that the immigration of close relatives outside the nuclear family will increase and that there will be increased costs for the public sector. Lag om ändring i utlänningslagen (1989:529) Härigenom föreskrivs i fråga om utlänningslagen (1989:529), dels att nuvarande 2 kap. 4 a - 4 e §§ skall betecknas 2 kap. 10 - 14 §§ samt att nuvarande 2 kap. 5 - 14 §§ skall betecknas 2 kap. 16 - dels att de nya 2 kap. 5, 6, 8, 9, 13, 14, 16 - 19 och 28 §§ skall ha dels att 2 kap. 4 §, 7 kap. 11 och 17 §§ samt 11 kap. 6 och 8 §§ skall ha följande lydelse, dels att rubriken närmast före 2 kap. 6 § skall sättas närmast före den nya 2 kap. 19 §, att rubriken närmast före 2 kap. 7 § skall sättas närmast före den nya 2 kap. 20 §, att rubriken närmast före 2 kap. 9 § skall sättas närmast före den nya 2 kap. 23 § samt att rubriken närmast före 2 kap. 14 § skall sättas närmast före den nya 2 kap. 28 §, dels att det i lagen skall införas fem nya paragrafer, 1 kap. 1 a §, 2 kap. 7 och 15 §§ samt 11 kap. 1 c och 1 d §§, samt närmast före 2 kap. 13, 14 och 16 §§ samt 11 kap. 1 d § fyra nya rubriker av följande Med anknytningsperson avses i denna lag en person som är bosatt i eller har beviljats uppehållstillstånd för bosättning här. Uppehållstillstånd får ges till 1.en utlänning som är gift med eller sambo till någon som är bosatt i eller har beviljats uppehållstillstånd för bosättning här, om makarna eller samborna stadigvarande sammanbott utomlands, 2.en utlänning som är och ogift och som är eller har varit hemmavarande barn till någon som är bosatt i eller som har beviljats uppehållstillstånd för bosättning här, en utlänning som är och ogift och som adopterats eller som avses bli adopterad av någon som för adoptionsbeslutet var och som är bosatt i eller har beviljats uppehållstillstånd för bosättning här, om utlänningen inte omfattas av 2 och om adoptionsbeslutet - har meddelats eller avses komma att meddelas av svensk domstol, - gäller i enligt lagen (1971:796) om internationella rättsförhållanden rörande adoption, eller - gäller i enligt lagen (1997:191) med anledning av Uppehållstillstånd får ges till en utlänning som är 1.gift med anknyt- ningspersonen eller sambo till denne, om makarna eller samborna stadigvarande sam- manbott utomlands, 2.under och ogift och som är barn till eller avses bli adopterad av anknytnings- personen genom beslut av svensk domstol, eller tillträde till Haag- konventionen om skydd av barn och samarbete vid interna- adoptioner, 3.en utlänning som på något annat sätt än som avses i 1-2 a är nära anhörig till någon som är bosatt i eller som har beviljats uppehållstillstånd för bosättning här och som ingått i samma hushåll som den personen, 4.en utlänning som annars har särskild anknytning till , 5.en utlänning som av humanitära skäl bör få bosätta sig i , 6.en utlänning som har fått arbetstillstånd eller som har sin försörjning ordnad på något annat sätt, och 7.en utlänning som önskar vistas här i landet för studier eller besök. Uppehållstillstånd får också ges till en utlänning som 1.är gift med eller sambo till någon som är bosatt i eller har beviljats uppe- hållstillstånd för bosättning här, utan att makarna eller samborna stadigvarande sammanbott utomlands, eller 2.har för avsikt att ingå äktenskap eller inleda ett samboförhållande med en person som är bosatt i eller som har fått uppe- hållstillstånd för bosättning här, om förhållandet framstår som seriöst och särskilda skäl inte talar mot att tillstånd ges. 3. ogift barn eller förälder till anknytnings- personen, om utlänningen är beroende av denne eller andra särskilda skäl föreligger. När en ansökan om uppehållstillstånd grundas på ett beslut om adoption som har meddelats av svensk domstol, skall den anknytning som har uppkommit genom beslutet godtas i ärendet om uppehållstillstånd. Vid prövningen av en ansökan om uppehållstillstånd enligt denna paragraf skall beaktas om utlänningen kan förväntas föra en hederlig vandel. Uppehållstillstånd får också ges till en utlänning som 1. är gift med eller sambo till anknytningspersonen, utan att makarna eller samborna stadig- varande sammanbott utomlands, eller 2. har för avsikt att ingå äktenskap eller inleda ett samboförhållande med anknyt- ningspersonen, om särskilda skäl inte talar mot att tillstånd ges, eller