‘Try to imagine what “living with one’s family” meant’.
They tried; but obviously without the smallest success.
‘And do you know what a “home” was?’
They shook their heads.
Aldous Huxley, Brave New World
While it took some time to accept the reality of being an appealing migration destination, the European Union still seems uneasy with its own strategy, as it enters the sixth year of the so-called refugee crisis. Not only public support has declined; the administrative incoherences within the Union have been ultimately revealed. Notwithstanding the severe divergences in the perception and enforcement of immigration and refugee law, the concurrent demonisation of elites and aliens has dragged EU Member States in a restrictive labyrinth of legal opportunism, for the sake of pacing the populist forces.
The Family Reunification policy, within the framework of Directive 2003/86, provides a very indicative example of the vacillation before adopting an inclusive scheme of immigrant integration. Family reunification constitutes one of the main legal avenues to enter Europe. The legislation at hand describes the common denominator of the conditions under which family reunification is granted to third country nationals; it establishes procedural guarantees; and it provides rights for the concerned family members. It mainly applies to spouses, unmarried partners, minor children, adult dependent children and dependent parents and grandparents of an individual (the sponsor) already accepted in a Member State. In spite of any divergences among national legislations, the residence permit of these family members depends on their commitment to educational and vocational programmes specifically designed for their social integration.
Furthermore, the Court of Justice of the European Union explicitly confirmed the existence of a right in several cases (i.e. Case C-540/03, European Parliament v Council, para. 60). It stated that the Directive imposes a precise positive obligation on the Member States to ensure family reunification of certain members of the sponsor’s family. However, while the Treaties proclaim the EU’s commitment to universal values such as the rule of law and the respect for human rights, the Member States err in facilitating them in practice.
All the above observations underline one particular feature of the EU legal order: the binding effect of a directive. In short, this legislative act binds the Member States solely as per the objectives to be achieved by the prescribed dates. It falls under the national authorities’ sovereign discretion how these objectives will be implemented. In most cases, this has allowed more or less intentional abstentions and circumventions such as the delay in transposing the provisions of many directives, as the one at hand.
That substantial margin of appreciation in the application of the Directive adds to the existing administrative and judicial obstacles to family reunification. Claiming to use this discretion to protect their ‘sovereign interests’, countries that used to be preferred immigrant destinations (such as Austria, Germany, or Sweden) now seek to reduce immigration in the name of presumably more effective integration. To this effect, Member States twist the provisions of the Directive, using a series of loopholes which can be categorised as follows:
i. Requirements for the sponsor. The Directive enables Member States to demand proof of adequate accommodation (article 7.1 (a)), sickness insurance (article 7.1 (b)), and stable and regular resources that are sufficient to maintain themselves without being completely dependent on social benefits (article 7.1 (c); Case C-578/08, Chakroun, para. 43; Cases C-356/11 and C-357/11, O. & S., para. 74). These requirements could constitute an insupportable burden for the parties;
ii. Requirements for the sponsored family member. These include language and integration measures, undertaken before and/or after arrival, irrespective of their previous educational level, and at times subject to fees (article 7.2), which may hold back the familial sentiment in the new residence;
iii. Procedural flaws. Family reunification procedures are lengthy and bureaucratic (articles 8 and 5.4). The burden of proof (which is occasionally lost) falls on the applicant (article 5.2 and 5.3) and in some cases includes taking a DNA test to determine family links. The sponsor and/or the members of their family have to pay fees. After the rejection of an application, an effective complaint procedure (article 18) is not substantially guaranteed in all cases. All these defects amount to the violation of the fundamental right to an effective judicial protection;
iv. Fluctuation. There are variations in the treatment of applicants based on national perceptions of their ethnic origin, health, gender, sexual orientation, or even their status as refugees or subsidiary protection beneficiaries. Member States also differ on the assessment of special circumstances of certain individuals; for example, the principle of observing a child’s best interests, recognised in article 5.5 of the Directive, but not expressly mentioned in some legislations, such the Hellenic. The definition of ‘dependent family member’, based on their age, also varies from one country to another. Finally, the disregard for the fate of those denied the reunification contributes as well to forum shopping (that is, cherry-picking the country whose jurisdiction is likely to yield the most favourable outcome) and/or to the unfair allocation of migrants.
Sociology shows that family bonds create a safety net around which cultural stability can be established. From the perspective of the law, it is essential to follow a predictable pattern of rules, where individual requests are processed and assessed fairly. Within EU law these safeguards constitute a precious family legacy: in our case, variations introduced by Member States must not undermine the directive’s objective and effectiveness for promoting family reunification. And this is so not only for the benefit of the immigrant, it also enhances solidarity and fair sharing of responsibility among Member States. Above all, as this legal procedure is the very first impression of a family’s wished new home, it must create the feeling that this will indeed be a home. Terminological and practical coherence is not, therefore, a merely legalistic ritual shared among the scholars of EU law but can also be the showcase of a Union ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities; ... pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men.’
Consequently, although much-detested and formalistic, the Union’s stance seems for now the most comprehensive solution. It involves a coherent – albeit contested – response to the crisis, and to the questions of how integration must be pursued and who is entitled to family reunification. Moreover, it arguably inspires optimism and solidarity compared to the insular politics of fear-mongering. Using the tactics of attack through defence, some Member States blame both Brussels and immigrants for their sovereignty shrinking instead of actually facing the truth of inward cultural changes. Contrariwise, the Union aims to offer an inclusive, pluralistic Area of Freedom, Security and Justice ‘without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.’
As far as third country nationals are concerned, family reunification remains the most humane policy of the post-Lisbon era. It is coherently centred on the individual, affirming the significance of fundamental rights – such as the right to a healthy and dignified family life – as a gesture of goodwill to newcomers and a paradigm of openness to diverse communities in the entire world.
Danai-Georgia (Danae) Koutsopoulou
Danai-Georgia (Danae) Koutsopoulou is a lawyer. She holds an LLM degree in European Studies and European Legal Studies from the University of Hamburg, where she is currently a Ph.D. candidate. Her main interests revolve around European affairs – especially asylum and immigration law and constitutional issues – global constitutionalism, human rights, and bioethics.