National Law Restrictions on Family Reunification Rights of International Protection Beneficiaries from a ECHR/EU Law Perspective

Abstract

In light of the perceived refugee crisis, European countries are exploring new ways to restrict access of migrants to their territory. One such restriction relates to family reunification rights of international protection beneficiaries. Proposals in this area have already been adopted or are currently being considered in countries such as Norway, Denmark, Sweden, Austria and Germany most commonly in the form of waiting periods before applications for family reunification can be submitted. The personal scope of these proposals differs. In some countries the restrictions apply/are intended to apply to international beneficiaries in general while they in other countries are applicable/envisaged applicable only to persons with subsidiary protection status or persons fleeing from generalised violence. The intention of the paper is to examine whether this legislative trend is in conformity with the European Convention on Human Rights (ECHR) and EU law standards. It will fall in two main parts: firstly, key judgments of the European Court of Human Rights (ECtHR) concerning Article 8 ECHR and Article 14 ECHR are examined with a view to deducing the ECtHR’s stance on family reunification rights of persons holding international protection. In the second part, focus will be on EU law and the question of whether, and if so to what extent, international protection beneficiaries can derive family reunification rights from primary and secondary Union law sources, in particular the EU Charter on Fundamental Rights, the Family Reunification Directive (Directive 2003/86/EC) and the Qualification Directive (Directive 2011/95/EU). The paper concludes that particularly Article 8 ECHR and Article 14 ECHR taken together with Article 8 ECHR impose relatively strict limits on the national legislatures’ room of manoeuvre in family reunification cases involving international protection beneficiaries, including when it comes to introducing distinctions between refugees and persons with subsidiary protection status.