Monday, 12 November 2018

The effectiveness of the right to family reunion of refugees: An analysis of the K. & B. ruling of the CJEU





Mark Klaassen, Assistant professor at the Institute of Immigration Law at Leiden University


Introduction

For most EU Member States (the UK, Ireland and Denmark have opted out), family reunion between non-EU citizens residing on their territory and their non-EU citizen family members living abroad is governed by Directive 2003/86. This Directive includes a more favourable regime for refugees seeking family reunion, which Member States may limit to family relationships which predate entry to the Member State. These exceptions include the waiver of a number of conditions for family reunion: the optional derogation for those over 12; the conditions relating to accommodation, sickness insurance and “stable and regular resources”; and the waiting period. The rules on evidence of family relationships are also relaxed, in the event that documentary evidence is unavailable. Finally, the optional “integration measures” requirement can only be applied after family reunion, whether the family relationship existed before entry or not. 

However, Member States may limit the application of this more favourable regime as regards the waiver of the conditions relating to accommodation, sickness insurance and stable and regular resources if the sponsor or family members have “special links” with a non-EU country where family reunion is possible, or if the application for family reunification was lodged within a period of three months after refugee status has been granted. This latter competence is laid down in the last sub-paragraph of Article 12(1) of the Directive.

But how must the Member States deal with applications for family reunification by beneficiaries of international protection which are lodged after this three months period? This is essentially the question in Case C-380/17 K. & B., that was submitted to the Court of Justice of the EU (the Court) for a preliminary ruling by the Council of State – the Dutch court of highest instance in immigration matters.

In this blog I will first sketch the implementation of Article 12(1) of the Directive in the Netherlands. Then I will discuss the cases that have led to the preliminary reference. After that I will summarise the ruling of the Court. Finally I will discuss the implications of the ruling for the family reunification of refugees. Note that the judgment also confirmed the Court’s jurisdiction to interpret the Directive for the family reunion of persons with subsidiary protection in the Netherlands, even though they are excluded from the scope of the Directive, because the Netherlands has chosen to apply the Directive to them in the same way as refugees. I will not elaborate on the jurisdiction issue further.

Family reunification of refugees in the Netherlands

In the Netherlands there is a one-status system, meaning that no distinction is made between refugee status and subsidiary protection status. This has implications for the implementation of the Directive. Beneficiaries of subsidiary protection are excluded from the Directive. However, as no distinction between refugees and beneficiaries of subsidiary protection is made in Dutch asylum law, all beneficiaries of international protection are eligible for family reunification pursuant to the implementation of the Directive. From the moment that international protection is granted, the sponsor has three months to make the application for family reunification of family members that were left behind in the country of origin. In case the application is made within this three month period, no substantive requirements for family reunification are imposed, as is required by Article 12(1) Directive. Also, no administrative fee is charged for making the application.

When the application is made after the three months period has passed, the application is rejected. Only in very exceptional circumstances is an application lodged outside of the three months period accepted – even though there is no legal basis for that in Dutch law. In making the determination whether such special circumstances apply, the Dutch authorities neither take the best interests of the child (Article 5(5) Directive) nor the specific individual circumstances of the case (Article 17 Directive) into account. A sponsor with international protection status is eligible to submit a “regular” application for family reunification outside the three month period. In regular applications, the substantive requirements – which are based on Article 7(1) of the Directive – are fully applicable.

The applicants in K. and B.

Applicant K. is the Afghan mother of an unaccompanied minor in the Netherlands. The minor sponsor has been granted international protection in the Netherlands on 14 February 2012. As an unaccompanied minor, the legal guardian was assigned to the sponsor. The sponsor applied to be reunited with his mother on 27 November 2013. From the order of reference, it appears that his legal guardian did not inform the applicant of the possibility to apply for family reunion. The application was rejected because it was not made within the three month period after being granted international protection.

An appeal was lodged with the District Court of Zwolle, which ruled in favour of the applicant. Referring to the best interests of the child as laid down in Article 3(1) of the UN Convention on the Rights of the Child and the case law of the European Court of Human Rights on Article 8 ECHR (the right to private and family life), the District Court held that the Secretary was bound to make an individual assessment of the competing interests involved in the case. The Secretary appealed the decision of the District Court to the Council of State, which is the referring court in this case. In the order of reference to the Court, the Council of State blames the sponsor – who was fifteen years old on the moment the application was lodged – for not informing himself of the three months’ period in which the application for family reunification must be made. The Council of State deems that it was reasonable to attribute the lack of information provided by the legal guardian to the minor sponsor.

Applicant B. is the baby daughter of an Eritrean national who was granted international protection in the Netherlands on 23 September 2014. The sponsor applied to be reunited with his wife and baby daughter on 22 January 2015. The application was lodged one month after the three month period had elapsed. The applicant appealed the rejection of his application to the District Court of Amsterdam. His appeal was rejected on 24 June 2016, upon which he lodged a subsequent appeal to the Council of State. The reason for the late submission of the application was a misunderstanding between the sponsor and the Dutch Refugee Council, which has a formalised role in assisting beneficiaries of international protection in making an application for family reunification. He misinterpreted a conversation with the Dutch Refugee Council. In the order for reference to the Court, the Council of State attributes the misunderstanding to the applicant.

These two cases are no exceptions. In 2014 the Advisory Committee on Migrations Affairs – an independent Committee that advises the Dutch Government and Parliament on immigration law and policy – expressed the view that the absolute character of the three months’ period is problematic. The Committee held that it is important that beneficiaries of international protection are swiftly reunited with their family members, also in view of the integration in Dutch society. The Committee advised the Dutch government to proactively ask each beneficiary of international protection whether they want to apply for family reunion and to introduce a hardship clause for situations in which an application is made outside the three months’ period.

The ruling of the Court

The Court rules that the EU legislature has explicitly allowed the Member States to apply the conditions from Article 7(1) Directive to refugees who apply for family reunification after the time limit from Article 12(1) has elapsed (para 46). Based on that, the Member States are allowed not to process applications made after the three months’ period has elapsed under the more favourable rules for refugees but under the general rules instead (para. 47).

According to the Court, the EU legislature did not regulate on the procedure to be followed regarding out of time applications (para. 55). Therefore, the principle of procedural autonomy applies, which is limited by the general principles of equivalence and effectiveness (para. 56). The latter principle requires that the national procedure may not render the rights conferred by the Directive impossible in practice or excessively difficult. Concerning the application of the three month period, the Court finds that rejecting an application for not being made within the three month period does not per se render the exercise of the right to family reunification impossible in practice or excessively difficult when a fresh application can be lodged in which the conditions of Article 7(1) are applicable (para. 59). In this manner, the right to family reunification can still be safeguarded (para. 60). The Court notes that this is not the case in situations in which the late submission of the application is objectively excusable (para. 62).

In this regard, the Member States must fully inform the applicant of the consequences of rejecting the application for non-compliance with the three month period. Besides that, the Member State must inform the applicant how the right to family reunification can nevertheless be effectively realised (para. 63). The Court concludes by remarking that even though the Member States are allowed to impose the requirements of Article 7(1) Directive in case an application is lodged after the three months’ period has elapsed, the other provisions of the Chapter on family reunification of refugees still apply (para. 64-65).

Analysis: A pyrrhic victory for the Dutch government?

The ruling of the Court means that the distinction that is made in Dutch immigration law between the family reunification of beneficiaries of international protection and “regular” family reunification can be maintained. However, in the application of the “regular” family reunification regime, the fact that a sponsor has been granted international protection must be taken into account (para. 53). In the refugee family reunification procedure, there must be a codification of the requirement to not apply the three months’ period in cases in which it was objectively excusable that the application was lodged out of time.

This is the second ruling of the Court on family reunification of refugees in the Netherlands. In the A. & S. judgment (discussed here), the Court held that an unaccompanied minor who is considered a minor on the moment that he lodged the application for international protection has the right to family reunification with family members that were left behind in the country of origin. Essentially that case also considered the procedural autonomy of the Member States to regulate where the Directive does not provide for procedural rules. The Court held that to make the right to family reunification dependent on the moment on which the domestic authorities grant international protection would call the effectiveness of the protection provided for by the Directive into question (A. & S., para 55).

It is also in line with the interpretation of the Court with other provisions of the Directive. In Chakroun, the Court held that the competence of the Member State to require the sponsor to demonstrate stable, regular and sufficient resources may not be used in a manner which would undermine the effectiveness of the right to family reunification (Chakroun, para. 43). The Court confirmed this position in O., S. & L., in which the Court strongly emphasised the role of fundamental rights in determining the competence of the member states in imposing the requirement of stable, regular and sufficient resources (O., S. & L., para. 80). In that case, the Court held that “[i]t is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned. (para. 81)”  

The K. & B. judgment has demonstrated that even when an application was made outside the three month period laid down in Article 12(1) Directive, the effectiveness of the right to family reunification of a person with international protection may not be undermined by the application of the conditions of Article 7(1) Directive. This conclusion might sound obvious, but nevertheless has far-reaching implications.

To what extent can it be expected from the applicants in this case to comply with the stable and regular sufficient resources requirement? In order to answer this question, it is interesting to take a look at the drafting history of the Directive. In the initial proposal of the European Commission, refugees were always exempted from the substantive conditions, as “[r]efugees and persons enjoying subsidiary protection, given the overriding reasons why they have had to flee their country of origin and cannot lead a normal family life, cannot be subjected to the same additional conditions without their right lead a family life being imperilledCOM/1999/638 final. Even though the EU’s qualification Directive gives them a right to seek employment, beneficiaries of international protection start with an enormous backlog on the labour market, so requiring them to comply with the requirement of stable and regular sufficient resources could undermine the effectiveness of the right to family reunification. In this context, the reasoning of the Court in O., S. & L. that “a balanced and reasonable assessment of all the interests in play” must be conducted, is of utmost importance.

It must be noted that this assessment is different from the balancing of interests under the ECtHR case law on Article 8 ECHR, as the Directive grants a subjective right to family reunification. The question which must be assessed it whether imposing the stable and regular sufficient resources requirement would undermine the effectiveness of the Directive. The question is not (as under the ECtHR case law) whether a fair balance has been struck between the individual interest and the interests of the state to control immigration.

Lastly, as noted above, Article 12(1) allows the Member States to impose the conditions of Article 7(1) in case an application is lodged after the three month period has elapsed. This does not include the requirement to comply with integration measures from Article 7(2) Directive. This means that refugees can never be subjected to the requirement to pass a pre-entry integration exam in the country of origin, also in cases in which the application is lodged outside the three month period.

Barnard & Peers: chapter 26
JHA4: chapter I:6
Photo credit: AP/Boris Grdanoski



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