Belgium: Whether persons recognized as Convention refugees are entitled to family reunification

No information on whether persons recognized as Convention refugees in Belgium are entitled to family reunification, further to that contained in BEL33544.E of 27 January 2000 and in the entry on Belgium in World Refugee Survey, available at Regional Documentation Centres, could be found among the sources consulted by the Research Directorate.

However, on 20 January 2001 an article was published in European Report, which discussed, among other things, the proposed unified European policy on family reunification for immigrants and refugees. The text of the article has been attached to this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of sources consulted in researching this Information Request.

Electronic Attachment

JUSTICE AND HOME AFFAIRS: COUNCIL SPLIT OVER FAMILY REUNIFICATION FOR IMMIGRANTS AND REFUGEES

National experts within the relevant Council working group are still running into trouble over the scope of the proposal for a family reunification Directive the European Commission tabled in December 1999. This issue prevented the French Presidency making any progress last year in this area in the Justice and Home Affairs Council, to which the proposal was not, for that matter, referred. The Swedish Presidency is planning to bring the debate onto a broader footing in the context of the strategic committee on immigration, borders and asylum, whose next meeting is scheduled for 26 January. The application of the Directive to refugees and recipients of ancillary forms of protection has multi-sectoral implications for other proposals under discussion. An agreement on this issue would help move forward with talks on other key topics, such as the definition of the family and the conditions to meet for entitlement to family reunification. Owing to all the problems, France and Germany are seeking to have the application of the Directive, originally scheduled for 31 December 2002, postponed.

BODY:

The French Presidency bequeathed a proposal for Council Directive where each article, and often each sentence has given rise to a reservation for one reason or another. Austria has expressed general reservations about the actual title of Directive, as the Commission proposal fails to take account of the quota system applied in this country.

The sole definition of beneficiary generally agreed up involves a non-EU national residing lawfully in a Member State and holding a residence permit issued by that Member State for a period of at least one year, on a basis offering the prospect of durable residence. However, only Italy the Netherlands, Finland and Sweden believe individuals enjoying ancillary protection should be included in the Directive on the same basis as refugees. Even the apparently uncontroversial issue of allowing an EU citizen to benefit from the right to family reunification if the members of the family are non-EU nationals creates problems. Germany is seeking from the outset to ensure the Directive does not cover third-country nationals of German origin (Aussiedler), for whom German legislation acknowledges the right to obtain German nationality.

As for family members covered by the right to family reunification, this would primarily apply to the applicant's spouse, or an unmarried partner living in a lasting relationship with the applicant, if the legislation of the Member State concerned treats the situation of unmarried couples as corresponding to that of married couples. Next come under-age children, including adopted children of the ascending line of the applicant or his spouse or unmarried partner who are dependent on them and have no other means of family support in the country of origin, and finally, children of the applicant or his spouse or unmarried partner, being of full age, who are objectively unable to satisfy their needs by reason of their state of health. The question of cohabitation (unmarried partners) and children of this relationship has prompted Spain and Germany to raise questions, as does the issue of full-age children in Austria, Portugal and Finland. All countries agree the Directive should not cover second spouses and their children in the case of polygamous marriages, if the applicant already has a spouse living with him (or her) in a Member State.

The countries are also divided over the procedure for applying the right to family reunification. Each party agrees the relevant party should have a maximum of six months to reach a verdict. However, the debate is focused on the extra period the applicant needs to provide proof of the family situation. Italy, Luxembourg and Germany in particular believe that the Member States should be allowed some freedom of interpretation, given that if the reunification involves a refugee, the lack of documentary evidence alone cannot be used to reject an application. An application may be rejected if it is found that the sole purpose of a marriage or adoption is to allow the person concerned to enter or stay in a Member State. In all cases where an application is rejected, the applicant and family members should be able to make a legal appeal.

Material conditions and residence.

Under the heading of material conditions required to refuse a family reunification, the Member States could invoke reasons related to public order, national security and publish health. A Member State may also ask the applicant to provide proof that accommodation is available, health insurance, a stable source of income that is "higher than or at least equal to the level of resources beyond which social assistance may be granted in the Member State concerned". The Netherlands sees advantage in having a clearer definition of the concept of a stable source of income. France stresses that the level proposed in the Directive is not enough to allow the application to meet the needs of a family. The Commission replies that the criteria reflect Community law and seek to ensure that non-EU nationals receive the same treatment as EU citizens.

As for the conditions governing the entry and residence of family members forming part of the reunification, they could, according to the Directive, enjoy a residence permit, renewable, that is valid for the same amount of time as the applicant's. If the applicant's permit is permanent or unlimited, the Member States could restrict the first residence permit of the family members to 12 months. The applicant's family members would have the same right as EU citizens to claim entitlement to education, to paid employment or a self -employed activity; entitlement to guidance, training, further training and vocational retraining. At the latest four years after residence, as long as the family ties continue, the spouse or unmarried partner and the child who has reached majority, would be entitled to an autonomous residence permit, separate from the applicant's. France, Germany, Belgium, Spain, Greece, Portugal, Luxembourg, Austria, Finland and Sweden are challenging one or the other rights, as are the United Kingdom and Ireland, which intend to use their opt-out clause for this Directive.

Electronic Attachment

European Report. 20 January 2001. "Justice and Home Affairs: Council Split over Family Reunification for Immigrants and Refugees." (NEXIS)

Sources Consulted

IRB databases

Unsuccessful attempt to contact one non-documentary source