Family Reunification – A case for annulment before the ECJ?

This paper deals with the legal action launched by the Parliament on the compatibility of the Council Directive on the right to family reunification with the provisions of the European Convention on Human Rights on family life.

Family Reunification – A case for annulment before the ECJ?

The recognition of an explicit right to family reunification in EC law continues to be more a vision than a feasible reality in the European Union. The long-awaited and officially celebrated adoption of the Council Directive on the right to family reunification on 22 September 2003 has been seriously marred by grave challenges raised concerning its legality and its compatibility with respect for family life as provided for by Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

On 16 December 2003, European Parliament (EP) brought an action for annulment before the European Court of Justice (ECJ), following the procedure stipulated in Article 230 EC Treaty. This action was first recommended by the EP Legal Affairs Committee and the Committee on Citizen’s Freedoms and Rights, Justice and Home Affairs and was then endorsed by the EP President, Pat Cox. Article 67 EC Treaty clearly requires the Council to consult the European Parliament in the adoption of any measure dealing with immigration policy for a transitional period of five years following the Amsterdam Treaty’s entry into force (1 May 1999). According to the EP, the Council adopted the Directive on family reunification without consulting the Parliament, thereby infringing this essentially procedural requirement. The EP was not given the opportunity to examine the new version of the Directive or to present its comments and observations. This is the first instance in which the judicial procedure specified in Article 230 is going to be used to deal with human rights issues since that possibility was first created at Nice.

The Council Directive on family reunion is the only legislative proposal dealing with the so-called ‘legal immigration’ to be adopted in the EU, after four long years of discussions within the Council of Ministers. It constitutes the first of a set of measures based on Article 63.3(a) EC Treaty, presented by the European Commission on third country nationals. It is interesting to note how the wording in the final version of the Directive contains some substantial changes, which may be considered as more restrictive in character, in comparison to the original text proposed by the Commission in 1999. Furthermore, generally speaking, the regime presented within the Directive, which will have to be transposed into all the member states’ national legislation no later than 3 October 2005, only represents the first stage necessary to achieve the desired harmonisation on family reunion at European level.

Many concerns have been voiced by critics both in academia and in human rights organisations on whether the Directive meets well-established European and human rights standards, as well as whether this legal instrument will serve to reinforce the existing predisposition to discriminate against foreigners in the EU at the time of national implementation. There are indeed serious grounds on which to question the Directive’s compatibility with Article 8 of the ECHR, which is of universal scope and unequivocally commits the compliance of all state signatories.

The right to family reunification is not provided expressly in any of the Directive’s provisions, leaving considerable discretion in the hands of the member states as far as the conditions for family reunification are concerned, and thus not preventing the undesired ‘family separation’. On the other hand, the Council Directive presents a rather restrictive and narrow concept of family by recognising exclusively the reunion of the sponsor’s spouse, the minor children below the age of majority and not married of the sponsor and of his/her spouse, as well as those adopted by the sponsor and/or the spouse when they have custody and the children are dependent on them. Member states will have total discretion regarding all further relatives, as for instance first-degree relatives in direct ascending line who are dependent, the adult unmarried children as well as unmarried partner.

Another objectionable aspect of the Directive is its treatment of minors. The last paragraph of Article 4.1 stipulates:

This provision may contradict international and European human rights rules which have defined the concept of minor and the special protection that must be extended to them.

One may also take exception with Article 18 of the Council Directive, which provides that: “the member states shall ensure that the sponsor and/or the members of his/her family have the right to mount a legal challenge where an application for family reunification is rejected or a residence permit is either renewed or is withdrawn or removal is ordered”. The precise limits of the expression ‘legal challenge’ are not fully clarified within the Directive. In our view, the expression ‘right of appeal’ should have been introduced since the very beginning of the drafting process.

The procedural as well as substantial arguments presented by the European Parliament in relation to the Directive on family reunification are in our opinion justified on the basis of the European Treaties as well as the ECHR. Although non-binding in character, consultation of the European Parliament nevertheless represents a fundamental stage in the EU legislative process. The consultation aims to guarantee democratic control and respect for the rule of law as well as the human rights and civil liberties dimension in the still rather obscure European legislative procedure.

The goal highlighted at the Tampere European Council of 15-16 October 1999 to ensure the fair treatment of third country nationals residing legally in the EU is still far from being achieved. Member states must not forget that, as signatories to the ECHR, they have undertaken to fully respect it while developing a proactive immigration policy for the EU. Taking the Council Directive on the right to family reunification to Court may represent a key opportunity to officially refresh some states’ memories on their human rights obligations.

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