Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive on the right to family reunification'
Date: 2000-05-25
Institutions: European Economic and Social Committee
Subjects: family law, family migration, foreign national, refugee, residence permit, rights of aliens

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Opinion of the Economic and Social Committee on the ‘Proposal for a Council Directive on the
right to family reunification’

(2000/C 204/09)

On 10 February 2000, the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs, and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 5 May 2000. The rapporteur was Ms Cassina.

At its 373rd plenary session on 25 May 2000, the Economic and Social Committee adopted the following
opinion by 81 votes to three, with eight abstentions.

1.

Introduction

workers, temporary workers or third country nationals who
hold residence permits valid for less than a year.

1.1.
The Commission’s draft directive is designed to under-
pin the right of third country nationals residing lawfully in a
Member State to family reunification and to establish a
harmonised framework for exercising that right (determining
to whom the right will apply, conditions for entering a
Member State, reunification application procedures, residence
In accordance with the
permits and related rights, etc.).
subsidiarity principle, the Member States will be responsible
for designing some of the procedures (e.g. practical conditions
to be met by the applicant, procedures for checking supporting
documents, the initial duration of the family members’ resi-
dence permit in the event that the applicant has an unlimited
residence permit, and procedures for applying rights connected
with residence).

1.2.
The directive fits in with the application of Title IV of
the Treaty (1), and is based on Article 63 (3). It follows on from
the conclusions of the Tampere European Council meeting
(15/16 October 1999), which recognised that the: ‘European
Union needs a comprehensive approach to migration’, and a
‘more vigorous integration policy (which) should aim at
granting (third country nationals) rights and obligations com-
parable to those of EU citizens’ and that there is a ‘need for
approximation of national legislations on the conditions for
admission and residence of third country nationals, based on
a shared assessment of
the economic and demographic
developments within the Union, as well as the situation in the
countries of origin’. The Tampere conclusions also stated the
need for ‘rapid decisions’, taking into account not only the
reception capacity of each Member State, but also their
historical and cultural links with the countries of origin.

1.2.1.
The directive does not apply to third country
nationals whose applications for refugee status have not
received definitive answers or to nationals who are covered by
temporary protection. Neither does it apply to seasonal

1.3.
The right to family reunification will apply to third
country nationals residing lawfully in a Member State, and to
refugees (within the meaning of the Geneva Convention),
stateless people and people enjoying subsidiary protection (for
humanitarian reasons, in cases of war or other events that
have caused expatriation). Applicants for reunification must
be in possession of a legal residence permit valid for at least
one year in the Member State in question (2).

Family reunification will apply to spouses, non-married
1.4.
children who are minors (including adopted children and
children in custody), partners with whom the applicants can
prove they have a durable relationship, dependent relatives in
the ascending line and children of full age who cannot look
after themselves for reasons of poor health or disability.
For refugees and people enjoying subsidiary protection, the
provision is extended to other family members (for humani-
tarian reasons, owing to dependency on the applicant). Stud-
ents may be joined by spouses and children only [Article 5(5)].

1.5.
As cases of Community citizens who are not exercising
or have not exercised their right to free movement are not
covered by Regulation (EEC) No 1612/68 or other texts
governing the free movement of persons, and are dealt with in
widely varying ways in the Member States, they are covered by
the current draft directive, with a view to ensuring equal
treatment for EU citizens in such circumstances (reunification,
with an EU citizen who has not exercised the right
to
free movement, of family members who are third country
nationals).

1.6.
Applications must be examined and a written response
given within six months. When family members are authorised
to join the applicant, any visas (including transit visas)
required must be issued promptly and free of charge. When
authorisation is refused, a written explanation must be given.
There are procedures for redress through the courts.

(1) ‘Visas, asylum,

immigration and other policies related to free

movement of persons’.

(2) This does not apply to refugees.

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1.7.
The Member States may require a number of practical
conditions to be met by the person applying for the right to
family reunification (sufficient resources, accommodation,
insurance cover for the family, etc.).

1.8.
The proposal provides for family members authorised
to join the applicant to be issued with residence permits valid
for the same period as that of the applicant. If the applicant
holds a permanent residence permit, they may be granted an
initial permit of one year. Family members will have immediate
right of access to education, vocational training and work
(employed and self-employed).

1.9.
After a maximum period of four years, the spouse or
partner and any children who have reached full age will
have the right to an autonomous residence permit. Where
circumstances are especially difficult (widowhood, divorce,
separation, abandonment, repudiation, or death of relatives in
the ascending or descending line), the permit may be granted
after just one year of residence.

1.10.
In proven cases of fraud, irregularities or falsification
of information or evidence, permits may be withdrawn and
family members expelled. Checks should be carried out in the
event of well-founded suspicions of irregularities or fraud, but
these must not be in any way abusive.

1.11.
The directive is without prejudice to more favourable
provisions of bilateral and multilateral agreements with third
countries, the European Social Charter (1961) and the Euro-
pean Convention on the Legal Status of Migrant Workers
(1977).

2. General comments

in its report have been ratified by all (or some) Member States;
nonetheless, the fact that the Commission proposal is taking
those texts into consideration as it begins to implement
Treaty Title IV, mentioned in point 1.2, bodes well for those
international standards to be ratified and implemented by
the Member States on a timely and more generalised and
responsible basis.

2.2.
The Committee is pleased to note that those eligible to
claim the right to family reunification include employees and
self-employed workers as well as displaced people, refugees,
and people enjoying subsidiary protection. It is also pleased
that more favourable conditions and procedures apply for
refugees and displaced persons. The fact that these categories
of people are dealt with together corresponds perfectly with
the legal basis chosen and highlights the social dimension and
the aim to promote the personal and family integration of
third country nationals in the EU. The one incontrovertible
condition is that the applicant be lawfully resident in a Member
State.

The Committee is glad to see that the Commission
2.3.
proposal (though somewhat more limited in scope) responds
to many of the demands it has made in a number of opinions (2)
issued from the early 1990s onwards, relating to the need to
establish a common legal framework to cover entry and
residence conditions for third country nationals and to guaran-
tee the right to family reunification in a clear and harmonised
manner, as more than a right in itself but also as a social,
personal and cultural instrument to favour the integration of
third country nationals. The Committee gives the Commission
its full backing to draft a series of proposals to cover other
aspects relating to third country nationals living on EU
territory and hopes that those proposals will soon be the
subject of a full debate leading to rapid practical decisions on
the part of the EU institutions.

The Committee warmly welcomes the Commission’s
2.1.
initiative for the fact that it applies the new Treaty provisions
by helping to develop a cohesive framework for Member States’
migration policies, while rigorously applying the principle of
subsidiarity, and because it is inspired by full respect for
families and minors, as
human rights, and the rights of
prescribed by the major international acts and conventions (1).
Not all the international instruments cited by the Commission

The principle of equal treatment with EU citizens,
2.4.
which the draft directive aims to promote, must be upheld. As
some provisions are deferred to national legislation under the
subsidiarity principle,
in its ‘specific
comments’, pinpoint articles which leave room for discretion
and therefore require the Member States to apply the basic
criteria contained in the directive, so as to ensure that

the Committee will,

(1) For instance: the Universal Declaration of Human Rights and the
International Covenants on Civil and Political Rights and on
Economic and Social Rights (1966); Convention No 143 of the
International Labour Organisation (1975); the UN’s International
Convention on the protection of the rights of all migrant workers
and members of their families (1990); various statements by the
High Commissioner for Refugees (UNHCR); the Convention on
the Rights of the Child (1989); the European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950);
the European Social Charter (1961) and the European Convention
on the Legal Status of Migrant Workers (1977).

(2) Opinion on the free movement and residence of workers — OJ
C 169, 16.6.1999; Opinion on the free movement of workers
— OJ C 235, 27.7.1998; Opinion on extension to third countries
— social security — OJ C 157, 25.5.1998; Opinion on the right
of third country nationals to travel in the Community — OJ
C 153, 28.5.1996; Opinion on immigration and asylum policies
— OJ C 393, 31.12.1994; Additional opinion on the status of
migrant workers from third countries — OJ C 339, 31.12.1991;
Opinion on the status of migrant workers from third countries —
OJ C 159, 17.6.1991.

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disparities in some of the conditions for the right to reunifi-
cation do not distort migratory flows or lead to major
differences in treatment from one country to another.

2.5.
The Committee notes that on signing the Treaty, the
UK and Ireland introduced protocols enabling them to opt in
or out of applying the above-mentioned Title IV. Denmark,
meanwhile, formally opted out under its own protocol. The
Committee very much hopes that Ireland and the UK will
decide to opt in and make a positive contribution to the
directive in question. The Committee believes, however, that
the practice of introducing opt-out procedures makes the
Community decision-making process vulnerable to pressure
from the Member States that have opted out and yet take part
in discussions on the legislation concerned. The Committee
hopes that the government of Denmark, whose opt-out is
definite, will contribute positively and constructively if it takes
part in the debate.

3. Specific comments

3.1.
The fact that the draft directive clearly states that the
objective of family reunification [Article 2 (e)] is ‘to form or
preserve the family unit’ (whether the relationship arose before
or after the applicant’s entry) is highly significant.

3.2.
The definition of ‘family members’ [Article 5(1)(a)]
includes the applicant’s spouse or an ‘unmarried partner living
in a durable relationship with the applicant’, providing that
the legislation of the Member State concerned treats the
situation of unmarried couples as ‘corresponding to’ that of
married couples. In the Committee’s view, the concept of
‘corresponding to’ should be interpreted in the light of
Article 2(e) mentioned in the previous point (forming or
preserving the family unit) and Article 7(5) (the best interests
of the children). What counts is that the non-married couples
are free to live together, support each other, secure legal
recognition for, raise and educate their children, and exercise
the rights and duties of parents. Restrictive interpretations are
therefore to be avoided, and for that reason, the Committee
calls upon the Commission to monitor the transposal of
Article 5 of the directive into national legislation and report
back as provided under Article 18.

Reunification with dependent relatives in the ascending
3.3.
line and children of
full age demands careful regard for
humanitarian and social considerations. Children of full age
may be reunited with the applicant providing they are
unmarried and unable to take care of themselves for health
reasons [Article 5(1)(e) and Article 12(2)], but they are not
eligible to claim the right to follow training or take up

employment. However, Article 13(2) states that this category
of family member too may claim an autonomous residence
permit, but mentions no time scale (apart from the maximum
residence period of four years). If an autonomous residence
permit can be issued in a Member State after, say, a year (thus
offering an opportunity to work or follow training),
it is
difficult to understand why those rights, linked to autonomous
residence, cannot apply from the time of entry. The exception
in Article 12(2) should therefore be removed.

The Committee would point out

3.3.1.
the draft
directive does not cover certain cases of vulnerable people in
particular difficulty, for instance where:

that

a) children of full age are married and both spouses are in

seriously bad health (entry is not permitted);

b) children of full age are disabled or seriously ill (in which
case entry is allowed but not access to training or work); it
would be unfortunate if reunification brought these people
help within the family but denied them the opportunity to
live a full personal and social life;

c)

relatives in the ascending line are living in extreme poverty
(but not allowed to work).

The Committee hopes that the Member States will facilitate
reunification and also social and occupational integration for
this type of humanitarian case too, in line with the provisions
of Article 5(4) of the proposal regarding refugees and people
enjoying subsidiary protection.

The Committee welcomes

3.4.
the provision made
[Article 5(2)] for reunification with just one wife in the event
of a polygamous marriage (reaffirming the principle of the
family unit), and the fact that reunification with children from
other wives is permitted if the ‘best interests of the child so
require’ [this idea is reiterated in Article 7(5)].

3.5.
The recognition of the specific circumstances of unac-
companied refugee children (with more favourable conditions)
is of major importance (Article 6). Under Article 6(a), such
children may be joined by other family members not men-
tioned under Article 5, if there are no relatives in the ascending
line or such relatives cannot be traced. However, this provision
should also cover cases where relatives in the ascending line
are unable to take responsibility for the child, always bearing
in mind the criterion mentioned under Article 7(5) (the best
interests of the child).

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3.5.1.
The Committee notes that unaccompanied children
do not always fall into the refugee category and that they are
arriving in the EU in increasingly problematic numbers
(take for instance minors who are exploited or forced into
prostitution or crime). This issue cannot be covered by the
present directive, but it should be treated as a matter of
urgency and tackled through legislation and measures designed
primarily to protect victims and promote social rehabilitation.
The same point was made at the Tampere summit, where
attention was drawn to the need to decide on penalties to
stamp down on the perpetrators of exploitation and human
trafficking and to protect victims and help them make a fresh
start. The Committee hopes that the Commission will lose no
time in publishing proposals on the subject.

3.6.
It is not clear why in Article 7 (submission of the
application) reference is made in the singular to ‘an application’
for ‘a member’ of the family. For the sake of clarity, the
Committee calls for the text to reworded to read: ‘one or more
members of his family’ (in line with the explanation given in
the comments on Article 7).

3.7.
Explanations for applicants whose applications for
reunification have been refused must be provided in good time
in writing, and must give the reasons for the decision.
Applicants must also be given an opportunity to appeal in
accordance with national legal procedures. The Committee
also believes that applicants whose applications for reunifi-
cation have been refused should be informed of the possibility
of appealing to the European Court of Justice in order to
establish whether national rules and procedures conform with
Community legislation.

The practical conditions referred to in Article 8 relate
3.8.
to the freedom to refuse entry for reasons of ‘public health’.
The Committee believes that refusal on these grounds should
be restricted to cases where it would be impossible to find
treatment in the EU or where there is a high and uncontrollable
risk of contagion. Member States should meanwhile allow
reunification in cases of serious or infectious illness, providing
the applicant is able to guarantee access to appropriate care,
often unavailable in certain countries of origin.

3.8.2.
The Committee sincerely hopes that family members
who are reunited will be given equal treatment with EU citizens
regarding health, welfare and social protection. In its opinion
on the Commission communication ‘A concerted strategy for
modernising social protection’,
the Committee called for
research into the need to make the Member States’ social
protection systems more open and responsive to the problems
third country
linked to the reception and integration of
nationals.

3.9.
The Committee warmly welcomes the provisions in
Article 13 for issuing autonomous residence permits to family
members, and especially the more favourable conditions
specified under Article 13(3) for difficult social or personal
the last sentence (‘Where
circumstances.
necessary by reason of particularly difficult situations, Member
States shall accept such applications.’) should be interpreted as
an obligation, as indicated in the comments on the article in
question.

It believes that

3.10.
The Committee agrees on the need for controls and
penalties in the event of fraud or non-compliance with the
rules governing reunification, but feels that it is extremely
difficult to tell whether a marriage has been contracted or a de
facto relationship established for the sole purpose of gaining
access to a Member State, without conducting demeaning
checks and invasive enquiries. The Committee stresses that
invasive checks and enquiries go against the spirit and the
letter of the directive and that the Member States should
conduct specific checks only ‘where there are grounds for
suspicion’ [Article 14(2)]. The Committee therefore calls on
the Member States to comply with these criteria, while also
ensuring that
local
government level.

invasive practices are not applied at

3.10.1.
As an aside, the Committee notes that the increase
in marriages of convenience is encouraged by the restrictions
on the entry of third country nationals, and by the red tape
and the complexity of the procedures imposed on people with
a legitimate desire to emigrate to the EU. The Committee is
convinced that clear and simple rules and procedures are
required to manage migratory flows, allowing for controlled
growth and uncovering illegal migratory practices. In this
respect
the Committee refers to the opinions quoted in
point 2.3 and to its contribution to the Paris Euro-Mediterrane-
an economic and social summit (1996), which proposed a
pilot scheme for managing migratory flows, to facilitate entry,
integration and possible repatriation if the ‘migration plan’
proved unsuccessful.

3.8.1.
The Committee hopes that the Member States will
apply Article 8(2) in accordance with the principle of pro-
portionality and that a distinction will be drawn between
minor offences and serious criminal offences for which
sentence has been passed. People who have committed minor
offences and have decided to mend their ways and integrate
fully and honestly into the host society have a greater incentive
to do so with direct support from family.

to ensure a high level of

3.10.2.
There should be broad harmony in the types of
check and penalty used. The Committee calls on the Member
States
coordination when
implementing the directive, to avoid overly disparate con-
ditions causing a distortion in migratory flows (tendency to
choose the most liberal country).

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3.10.3.
The Committee is fully aware that criminal rings
organise marriages of convenience either for financial gain, or
as a way of drawing their victims into prostitution or into their
own criminal activities. The Committee therefore calls on the
Commission to move fast to draw up — and on the Member
States to adopt as a matter of urgency — harmonised
provisions for identifying and punishing the leaders of such
rings, with effective, dissuasive and fitting penalties, alongside

other measures for protecting and rehabilitating victims, as
already mentioned under point 3.5.1.

3.11.
The Committee welcomes the provision (Article 18)
requiring the Commission to issue a report on the application
of the directive within two years of the transposition deadline.
The Committee expects its opinion to be sought and hopes
that the report will appear regularly (every two or three years).

Brussels, 25 May 2000.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

APPENDIX

to the Opinion of the Economic and Social Committee

Defeated amendment

The following amendment, which received at least a quarter of the votes cast, was defeated in the course of the
debate.

Point 2.5

Delete the last sentence (‘The Committee hopes that ... takes part in the debate.’)

Reason

The ESC should not judge the Member States’ willingness to take part in the debate on EU provisions. The Danish
opt-out is the result of a referendum approved by the Danish parliament and the other EU Member States.

An opt-out does not mean that Denmark is not prepared to respect the other Member States’ desire for a common
approach, nor does it mean that Denmark is not prepared to implement the EU’s common provisions.

Result of the vote

For: 34, against: 45, abstentions: 12.