Written by Zvezda Vankova, Policy Analyst, Migration Policy Group
Hilkka Becker, Immigrant Council of Ireland, MIPEX national partner for Ireland
New Guidelines on Non-EEA Family Reunification were published by the Irish Government on the 31 of December 2013. According to the Minister for Justice, Equality and Defence, Alan Shatter, the guidelines “set out a comprehensive statement of Irish national immigration policy in the area of family reunification.” Our MIPEX partner, the Immigrant Council of Ireland (ICI), evaluated the document as “a positive first step” in developing a policy in this area but one that “leaves several important issues unresolved and will not bring clarity to many Irish citizens and legal migrants who have been separated from their loved ones.”
What if these guidelines are used as the basis for the Bill?
MIPEX argues that equal rights and opportunities in law for nationals, EU nationals, and third-country nationals sets favourable conditions for societal integration. These guidelines would not improve these conditions for integration, according to MIPEX, as they do not improve the legal position of separated families, who must still wait for an Immigration, Residence and Protection Bill to create Ireland’s first comprehensive law on family reunification.
Even though Ireland has not opted-in to the EU Directive on Family Reunification, the guidelines claim to “cover the same grounds as the EU Directive on Family Reunification” and take into consideration “comparative systems and practises in other common law jurisdictions where those are relevant to the Irish situation.” Despite a few improvements, Ireland’s policy remains more restrictive than all other MIPEX countries. Its provisions would not comply with the referenced EU law standards or with the average policy in other English-speaking countries where many Irish citizens benefit from these countries’ more generous family reunion policies. The one English-speaking and EU country that Ireland is generally following is the United Kingdom, which has recently adopted similar measures as those proposed by these guidelines, including a high economic resource requirement, but also high fees and a language requirement – as explicit parts of its government’s migration cap to restrict the number of incoming immigrants, including reuniting families.
Moreover, these guidelines do not change the fact that there is no right to family reunion in Ireland, unlike in nearly all EU countries.
What kind of MIPEX score changes can we expect, if the new Guidelines on Family Reunification form the basis for an Immigration, Residence and Protection Bill in 2014?
According to this MIPEX prospective impact assessment, the Guidelines would lead to only slightly more favourable conditions for reuniting families (+4 points on family reunification policies) due to more clarity for de facto partners (+10 on eligibility) and a guaranteed reasoned decision and appeal option (+13 on security of status). But the fees and conditions may become prohibitively expensive and the rights of reunited families remain too limited to facilitate their quick and stable integration into Irish society.
Ireland would not comply with the referenced EU law standards or with the average policy in other English-speaking countries
The guidelines slightly improve the eligibility criteria for family reunification by setting out in more detail how the ministerial discretion is intended to be applied towards ‘de facto partners’ (+10). Positively, the Minister decided to drop the idea to adopt a higher minimum 21-year-age requirement for spouses, civil partners and ‘de facto partners’ and keep the 18-year-age requirement, which is indeed what nearly all MIPEX countries do for equality reasons. In fact, the UK that Ireland usually follows had to drop its 21-year-age-limit for reunification of non-EU citizens with their British or non-EU sponsor, following a UK Supreme Court ruling.
The Guidelines could lead to even more restrictive conditions for family reunification that would go against the referenced EU law standards and the standard practices in most EU countries, Australia, Canada, New Zealand, and the US. The document mentions the possibility of introducing integration requirements (e.g. language and/or civic orientation requirements), claiming that this has become increasingly common in other EU jurisdictions. In fact, currently pre-entry tests exist in only 4 EU Member States, France, Germany, Austria and the Netherlands. The UK imposes pre-entry language tests for families upon arrival and Denmark has reduced its post-arrival integration requirement. Moreover, several of these requirements could go against the EU Family Reunification directive that the Guidelines are claiming to cover.
The Guidelines do not offer relief from the excessive income requirements for non-EEA national sponsors previously in place in relation to family members of work permit holders. ICI raised the issue that some applicants’ earnings are required to be 1000 EUR above the median equivalent net income and the Irish Immigrant Support Centre stressed that sponsors of one elderly parent have been required to earn 60 000 EUR per annum after tax and 75,000 EUR net for two parents, unlike the standards in the EU and in other common law jurisdictions. Most of the English-speaking countries like Australia, Canada, and New Zealand do not put an income requirement on reuniting with one’s spouse or children, except the UK, where it was introduced as part of the cap to reduce net migration and this requirement been already challenged in court. Some of the EU countries do not set a fixed amount (e.g. DK, DE) and others with fixed amounts use it as reference points (e.g. SE, ES, PT) to assess the applicant’s individual circumstances. In fact, these economic resource requirements would go against the EU family Reunification Directive, following the Chakroun case. The Guidelines envisage a review of the fees for family reunification cases and the introduction of a ‘more realistic approach in respect to costs’, which could lead to worse conditions for acquisition of status (-8 points). Moreover, this would go against the referenced EU law standards after the latest ruling of the ECJ on excessive fees for long-term residence and family reunification applicants in the Netherlands, which had to be reduced eventually.
Guidelines will only provide slightly more legal security for reuniting families. The policy document contains commitment to provide reasons for a refusal and introduce an internal appeals mechanism. Even though this will improve the score of Ireland (+13 on security of status), the policies in regards to security of status will still be slightly unfavourable for integration, unlike the majority of MIPEX countries, where families face fewer discretionary grounds, know that their personal circumstances must be taken into account in case of refusal, enjoy judicial oversight and independent appeals mechanism.
There will not be major developments in terms of rights associated with the status, since work restrictions on spouses of legal migrants will continue to exist. According to MIPEX, they have equal right to work in nearly all EU countries and in all English-speaking countries. Moreover, the right to autonomous residence permits will be in the hands of the Minister, even in situations where the family member has become a victim of domestic violence. Under EU law, spouses and children reaching the age of majority are entitled to some form of autonomous residence permit after a maximum of 5 years’ residence. However, there are EU countries (e.g. ES, PT, IT) that grant these permits immediately or after 3 years or less. The access to autonomous permit is even more facilitated in traditional countries of immigration such as Australia and Canada.