trends in international migration - oecdtemporary workers are nor-mally denied this option, although...

TRENDSIN INTERNATIONAL

MIGRATION

Continuous Reporting System on Migration

ANNUAL REPORT

2000 EDITION

ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT

SOPEMI

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Part II

COMPARATIVE ANALYSIS OF THE LEGISLATION AND THE PROCEDURES GOVERNING THE IMMIGRATION

OF FAMILY MEMBERS IN CERTAIN OECD COUNTRIES

A. INTRODUCTION

This study1 focuses mainly on the followingOECD countries: Australia, Belgium, Canada, theCzech Republic, Finland, France, Germany, Italy, theNetherlands, Norway, Spain, Sweden, Switzerland,the United Kingdom and the United States, as wellas on Bulgaria and the Slovak Republic. These coun-tries have had to deal with the presence and growthof substantial groups of foreign workers who havebeen settled there for long periods of time; theyhave accordingly introduced family reunion, andturned it into a specific right that is generallyrestricted to foreigners, although some countriesapply this procedure to the foreign families of theirown nationals.

The arrival of families enables immigrant work-ers to lead normal family lives, contributes to theirsecurity, and integrates them into the countrieswhere they have settled. Furthermore, since restric-tions were applied to immigration in several OECDcountries in Europe, family reunion has become themain legal means of entering certain countries. How-ever, in non-European OECD countries such asAustralia, Canada and the United States, permanentimmigration is not subject to major restrictions.In 1998, family immigration accounted for two-thirdsof all immigration into the United States, and over aquarter of all immigration into Australia and Canada(see Table II.1). In all three countries, the most com-mon form of family immigration is when permanentmigrants enter the country accompanied by theirfamilies. It should be noted, however, that this is notusually an automatic right in the case of temporarymigration.

The legal basis for family reunion is set out ininternational instruments and national laws (A), butsince the principle was first established, it has been

interpreted in different ways in all the countriesunder discussion.

A distinction is generally drawn between per-manent and temporary workers in European coun-tries; the exception is the United Kingdom. As far aspermanent workers are concerned, the processinvolves authorising family members to join theworker when he has been settled in the country for ashorter or longer period of time, and issuing themwith residence permits. Temporary workers are nor-mally denied this option, although exceptions maybe made in the case of highly skilled workers, whomay be accompanied by their families (accompany-ing families); the latter are not allowed to enter thelabour market.

This question is tackled quite differently innon-European countries (i.e. Australia, the UnitedStates and New Zealand) and the United Kingdom.These countries do not issue residence permits, andauthorisation to remain in the country is linked tovisas of which there are many categories (e.g. in theUnited States), and whose number is limited by pre-determined quotas. This means that it is no longerthe immigrant who applies for reunion, but the fam-ily member who puts in for the visa that is appropri-ate to his category; this will be issued to him if hemeets the qualifying conditions. Visas certainlyfavour members of the families of permanent resi-dents, but they may also be issued to temporaryworkers, particularly when they enable foreigners toarrive directly with their families (accompanying fami-lies). This situation is generally more like to arise inthe above countries than in European countries.

The large number of visas and the programmesthat have been specially designed to cater to certaincategories of immigrant foster definitional issuesthat makes it difficult to draw comparisons anddevelop syntheses. Reference should also be made

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Table II.1. Inflows of permanent settlers by entry class in Australia, Canada and the United States, 1990-1999

Thousands

1. Actual arrivals of permanent settlers. Counts include both primary applicants and their accompanying dependents, if any. Data refer to fiscal years (July toJune of the given year).

2. A landing corresponds to a person obtaining the right of permanent residence, either within Canada or from abroad. Including accompanying dependentsfor economic and humanitarian categories.

3. With the exception of immediate relatives of US citizens, immigrants in a class of admission include “principal beneficiaries”, i.e. those aliens who directlyqualify for the class of admission under US immigration laws, and “derivative beneficiaries”, i.e. the spouses and unmarried children of principal immigrants.Data refer to fiscal years (October to September of the given year).

4. Numerically unrestricted immigrants comprising spouses, unmarried minor children, and orphans adopted by US citizens as well as parents of adult US citizens.5. Numerically restricted relatives comprise the following four preference classes: i) Unmarried adult sons and daughters of US citizens; ii) Spouses and unmar-

ried sons and daughters of permanent resident aliens; iii) Married sons and daughters of US citizens; iv) Brothers and sisters of adult US citizens.6. Prior to fiscal year 1992, data include members of the professions or persons of exceptional ability in the sciences and arts, skilled and unskilled workers in

short supply, and special immigrant visas. Data include immigrants issued employment-based preference visas from fiscal year 1992 on.7. Refugees were admitted under various laws. The Refugee Act of 1980 now governs all refugee admissions.8. Under the 1986 Immigration Reform and Control Act, foreigners who had been accorded temporary legal status could apply, between December 1988 and

December 1990, for a permanent residence permit.9. Under the Immigration Act of 1990, a 3-year program (1992-1994) authorized 40 000 visas annually for natives of the 34 countries determined to have been

adversely affected by the 1965 immigration reform. In 1995, a permanent programme authorized 55 000 visas annually.Source: DIMA Overseas arrivals and departures data, Department of Immigration and Multicultural Affairs (DIMA); Citizenship and Immigration Canada;

US Department of Justice.

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

AUSTRALIA1

IMMIGRATION PROGRAMME 94.0 102.8 89.3 54.5 46.7 57.7 67.0 56.6 47.3 49.6

1. Family 49.9 53.9 48.6 32.1 33.6 37.1 46.5 36.5 21.1 21.52. Skill 42.8 48.4 40.3 22.1 12.8 20.2 20.0 19.7 26.0 27.93. Special eligibility 1.2 0.5 0.3 0.3 0.3 0.4 0.5 0.4 0.2 0.2

HUMANITARIAN PROGRAMME 11.9 7.7 7.2 10.9 11.4 13.6 13.8 9.9 8.8 8.8

NON-PROGRAMME MIGRATIONS 15.3 11.1 11.0 10.8 11.7 16.1 18.3 19.3 21.2 25.7

TOTAL 121.2 121.7 107.4 76.3 69.8 87.4 99.1 85.8 77.3 84.1

CANADA2

Immediate family 41.4 46.8 54.8 67.9 52.3 44.1 43.7 39.7 36.7 40.8Parents and grandparents 32.9 39.1 42.0 42.6 41.4 33.1 24.6 20.2 14.2 14.5

TOTAL FAMILY 74.4 85.9 96.8 110.4 93.7 77.2 68.3 60.0 50.9 55.2

Skilled workers – Principal applicants 32.7 31.4 26.6 29.8 28.6 34.6 42.1 44.9 35.9 41.5Skilled workers – Spouses or dependants 44.3 31.4 27.4 33.1 40.5 46.9 55.7 60.7 45.3 50.9Business – Principal applicants 4.7 4.3 7.0 8.3 7.0 5.3 6.2 5.6 3.8 3.6Business – Spouses or dependants 14.0 12.8 21.4 24.4 20.4 14.2 16.3 14.3 10.0 9.4

TOTAL ECONOMIC 95.6 80.0 82.3 95.7 96.6 100.9 120.3 125.5 94.9 105.4

Live-in Caregiver – Principal applicants – – – 3.0 4.8 4.7 3.8 2.3 2.4 2.6Live-in Caregiver – Spouses or dependants – – – – 0.2 0.8 0.9 0.5 0.4 0.6Other 3.6 4.2 5.5 7.8 7.5 0.8 4.1 3.4 2.5 1.5

TOTAL MIGRATION PROGRAMME 173.6 170.2 184.6 216.9 202.7 184.4 197.5 191.6 151.2 165.4

REFUGEE PROGRAMME 36.1 35.9 37.0 24.9 19.7 27.8 28.3 24.1 22.6 24.4

Backlog 6.7 26.7 33.2 15.0 1.9 0.7 0.3 0.3 0.3 0.1

TOTAL 212.8 228.5 249.3 249.0 216.9 212.9 226.1 216.0 174.1 189.8

UNITED STATES3

Immediate relatives of US citizens4 231.7 237.1 235.5 255.1 249.8 220.4 300.4 322.4 284.3Relative preferences5 214.6 216.1 213.1 226.8 212.0 238.1 294.2 213.3 191.5TOTAL FAMILY 446.2 453.2 448.6 481.8 461.7 458.5 594.6 535.8 475.8

WORKERS PREFERENCES6 58.2 59.5 116.2 147.0 123.3 85.3 117.5 90.6 77.5

REFUGEES7 97.4 139.1 117.0 127.3 121.4 114.7 128.6 112.2 54.7

IRCA legalization8 880.4 1 123.2 163.3 24.3 6.0 4.3 4.6 2.5 1.0Legalization dependants – – 52.3 55.3 34.1 0.3 0.2 0.1 0.0

Diversity Programme9 – – 33.9 33.5 41.1 47.2 58.8 49.4 45.5

Others 54.3 52.2 42.6 35.0 16.8 10.2 11.6 7.9 6.0

TOTAL 1 536.5 1 827.2 974.0 904.3 804.4 720.5 915.9 798.4 660.5

Comparative Analysis of the Legislation and the Procedures Governing the Immigration of Family Members in Certain OECD Countries

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to the frequent use of the “sponsor” techniquewhereby family members may obtain a visa if theyare sponsored, that is to say if a citizen or perma-nent resident undertakes to provide for all theirneeds for a variable period of time. This approachopens up a broader interpretation of the family thatencompasses a sponsor’s fiancé(e), cousins andmore distant relatives such as nephews, nieces,grandchildren or orphans.

It follows that family reunion is a concept thatvaries according to economic factors and to more orless restrictive conceptions of the family. There ishence a need to identify those who are likely to ben-efit from reunion (B), and we shall then examine theconditions governing family reunion and the entry ofthe accompanying family (C). Lastly, family memberscome under legal systems that may vary from onecountry to the next, for example in respect of accessto the labour market and social welfare (D).

B. THE LEGAL FOUNDATIONOF FAMILY REUNION

1. International conventions

Many international agreements contain refer-ences to the individual’s right to family l i fe:Article 16 of the Universal Declaration of HumanRights of 10 December 1948 says that anyone hasthe right to marry and found a family; Article 8 of theEuropean Convention for the Protection of HumanRights says that everyone has the right to respect forhis private and family life; Article 19 of the EuropeanSocial Charter of 8 October 1961 says that countriesmust make every effort to facilitate the familyreunion of migrant workers who themselves havepermission to stay in the country; Article 12 of theConvention on the Legal Status of Migrant Workersof 24 November 1977 makes provision for familyreunion; and lastly, the United Nations Conventionon the Rights of the Child of 26 January 19902

stresses the protection of the child’s interests, whichin turn relates to family life. The same applies tobilateral agreements, but these go no further thanarticulate the principle of family reunion, and leavepractical details to national laws.3

2. National laws

Many countries have brought in legislation onfamily reunion during the last 25 years or so. Itshould be pointed out in this context that as familyreunion was introduced at the same time as a ban on

permanent immigration, it is the only means, apartfrom asylum, of enabling foreigners to settlepermanently in most of the countries under examination.

Germany refused to be an immigration countryfor a long time, but it has now finally accepted familyimmigration. Family reunion was initially theresponsibility of the Länder, but a right now covers itunder a federal Law on foreigners of 9 July 1998.

Since 1989, the question of which visa shouldbe issued to members of a foreigner’s family hasbeen dealt with in Australia by the “Migration Regu-lations”, backed up by the “Procedure Advice Man-ual” and the “Migration Series Instructions”. The“Migrat ion Regulations” were amended o n1 November 1999. In Belgium, the right to familyreunion is covered by the Law of 15 December 1980,as amended in this respect by the Laws of 6 Mayand 6 August 1993. In Bulgaria, the issue comesunder Article 8(a) of the Law on foreigners living inBulgaria; family reunion is also covered in Article 25of the draft law on foreign citizens in Bulgaria andArticle 24 of the draft law on refugees.

In Canada, the Immigration Act of 1976 andrelated regulations cover family reunion. However, adraft reform of immigration law is currently underway. In Spain, the conditions for family reunion areset out in Article 54 of Royal Decree 155/1996 of2 February 1996 and the Implementation Decree ofOrganic Law 7/1985 on the rights and freedoms of for-eigners in Spain. Family reunion is not understood inthe same way in the United States and Canada as it isin European countries.

American law is traditionally favourable to fam-ily immigration. The US Immigration Act deals withfamily immigration, and manages the situationthrough the issue of visas. As far as immigrant work-ers are concerned, the entry of family members isbased on the “family preference” system (seeTable II.2), and most immigration quotas have pro-moted family reunion. The US Immigration Act 1990also contains a long list of visas to suit various circum-stances, particularly those that are issued to familymembers who are deemed to be non-immigrants.

The 1990 Act also introduces quotas for mem-bers of families of American citizens who are not“immediate relatives”, that is to say relatives otherthan spouses, children under the age of 18 and par-ents. This provision previously existed for foreign-ers’ family members, the foreign members offamilies of American citizens not being covered byquotas. However, the 1990 Act provides that the


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total number of an American’s immediate familymembers who entered the country in the previousyear must be set against the total number of visasissued for family reunion or family preference in theprevious year. This has had the effect of furtherreducing the number of visas issued to members offoreigners’ families.

In Finland, the question is governed by the Lawon foreigners of 1997, and by Ministerial Instructionsof 1993 relating to family reunion for refugees andresidence and work permits. In France, apart from aDecree of 24 December 1945 enabling the familiesof foreigners to settle, it was not until 1976 that adesire to integrate foreigners prompted regulationson family reunion designed to enable foreign peo-ple to lead normal family lives. A Decree of 26 April1976 set out the conditions under which familymembers of a foreigner living legally in France couldcome and join him or her. The right of foreigners in aregular situation to be joined by their families4 hashad legal protection since the Law of 24 August 1993and is also covered by Articles 29-30 bis of the Ordi-nance of 2 November 1945 as amended by the Lawof 11 May 1998.

Family reunion in Italy is dealt with by LawNo. 40 of 19 February 1998 and a PresidentialDecree of 30 December 1965. In Norway, it is cov-ered by the Immigration Law of 24 July 1988. In theNetherlands, the main legislation is contained in theLaw on foreigners of 13 January 1965 (recentlyamended in 1998), the Decree and Regulation onforeigners, and a Circular with no real legal standingwhich contains the instructions given to the immi-gration and nationality services and to the localimmigration police.

In the United Kingdom, the 1984 ImmigrationRules have been amended on several occasions, themost recent being in 1997. Slovakia has legal provi-sions on family reunion in Law 73/95 on foreigners’residence, Law 283/95 on refugees, Law 387/96 onemployment, and Law 70/97 on ethnic Slovakians. InSweden the relevant provisions are set out in the1989 Law on foreigners. The relevant legislation inSwitzerland is the Law of 26 March 1931 on the resi-dence and settlement of foreigners, and its Imple-mentation Ordinances, particularly the Ordinance of6 October 1986. In the Czech Republic, the Lawof 1992 on foreigners living in the Republic, asamended in 1994 and 1996, contains provisionsrelating to family reunion.

C. BENEFICIARIES OF FAMILY REUNION

Generally speaking, a distinction may be drawnbetween permanent and temporary workers, in thatthe former have a right to family reunion whereasthe latter do so only rarely. Family reunion for tem-porary workers appears to be out of kilter with thetemporary nature of their residence.

That is why family reunion is denied to temporaryworkers in Germany where, like temporary residents,family members must have a work permit. In Canada,temporary workers may usually be accompanied bymembers of their family but these are usually not enti-tled to work. However, a recent regulation permitsemployment authorizations to be issued to thespouses of highly skilled temporary workers so theymay accept employment in Canada without job valida-tion. The spouses of foreign students who are not full-time students themselves may be issued employmentauthorizations without requiring job validation.

Table II.2. Family reunification, by type of relationship with the sponsor 1992-1998, United States

Thousands

Source: Statistical Yearbooks of the Immigration and Naturalization Service, Department of Justice.

1992 1993 1994 1995 1996 1997 1998

Family members of an American citizen 235.5 255.1 249.8 220.4 300.4 322.4 284.3Spouses 128.4 145.8 145.2 123.2 169.8 170.3 . .Children 42.3 46.8 48.1 48.7 64.0 76.6 . .Other relatives 64.8 62.4 56.4 48.4 66.7 75.5 . .

Family-sponsored immigrants 213.1 226.8 212.0 238.1 294.2 213.3 191.5 Non married children of an American citizen 12.5 12.8 13.2 15.2 20.9 22.5 . .Spouses and children of permanent immigrants 118.2 128.3 115.0 144.5 182.8 113.7 . .Married children of an American citizen 22.2 23.4 22.2 20.9 25.5 21.9 . .Brothers and sisters of an American citizen 60.2 62.3 61.6 57.5 65.0 55.2 . .

Total 448.6 481.8 461.7 458.5 594.6 535.8 475.8

Total (% of total inflows of permanent immigrants) 46.1 53.3 57.4 63.6 64.9 67.1 72.0


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The United States takes a more lenient line byallowing temporary workers to be joined by theirfamilies, but it does not give them an entitlement towork. In France, family reunion for temporary work-ers is not normally possible unless it is subject tothe accompanying family procedure: it may only beused in exceptional cases where those concernedappear to have a good chance of adapting to life inFrance; it does not give them a right to get a job.

Switzer land exc ludes certain categories– seasonal workers, people with short-stay resi-dence permits, trainees and people taking thewaters – from any entitlement to family reunion.Some countries also include members of the fami-lies of their own nationals in specially amendedfamily reunion laws. Examples of this includeBulgaria, Canada, the United Kingdom where per-man en t re s ide nt s are t re ate d as n at io nals ,Australia and the United States where nationalshave preference over foreigners, and Finland, theNetherlands, Slovakia, Switzerland and the CzechRepublic where the criterion for a worker (whethera national or a foreigner) to be joined by his familyis permanent residence.

By contrast, under French and Belgian law, for-eign members of a national’s family receive a resi-dence permit automatically. In Germany, protectionof the family is covered by Article 6 of the Funda-mental Law; although it covers everyone, it isdesigned to apply to nationals first and foremost.The foreign members of the family of a German liv-ing in Germany are entitled to a residence permit(Article 23 of the Law of 1990).

Australia distinguishes between two kinds ofimmigration: that of family members and that ofskilled workers. The former are allowed to enterAustralia on the basis of their family links5 with a“sponsor” who may be a national, a permanentimmigrant (Canada is the same in this respect) or aNew Zealand national; the latter have to meet spe-cific criteria relating to skills and knowledge of thelanguage. Several types of visa reflect differentkinds of family link, but nationals have priority whenit comes to being joined by their families.

The concept of the family, whether it is that of aworker, a student or a refugee, is open to broadinterpretation. In all the countries under consider-ation, the family includes the spouse and childrenunder the age of 18, but it is sometimes extended toembrace older relatives and, in certain cases, otherfamily members (see Table II.3).

However, a special point needs to be made inconnection with member countries of the EuropeanCommunity: strictly speaking, under EC law, there isno such thing as family reunion, as family membershave a right to follow or join an EC national whoexercises his right to freedom of movement; theyreceive a residence permit immediately. In additionto the spouse and children under the age of 21, thefamily (irrespective of the members’ nationalities)includes an EC national’s dependent relatives in theascending line and his spouse.

1. The worker’s family

a) The spouse

The notion of spouse is open to a large numberof definitions. In practice, the question is whether itincorporates co-habitees or the wives of a polyga-mous foreigner. Replies vary. Most countries insiston married couples living together.

The status of spouse

The status of spouse has to be proved; it is usu-ally contained in a certificate that sets out theholder’s civil status. Where the marriage has takenplace abroad, or if there is any doubt as to theauthenticity of the certificate that has been pro-duced, in Belgium, France, Germany and theNetherlands, the diplomatic or consular authoritiesmay be asked to authenticate the claim.

A marriage of convenience acts as an impedi-me nt to fam i ly re un i f icat io n in Fr ance , th eNetherlands, Spain, and Switzerland, whether it isbetween foreigners or between a Swiss national anda foreigner. The marriage must have taken place atleast two years earlier for family reunion to be per-mitted in Bulgaria. By way of combating the forcedmarriages of very young children, Belgian law statesthat both spouses must be at least 18 years of age.

Co-habitees

A distinction may be drawn between countriesthat reject co-habitees for family reunion and thosethat accept them. The former category includesBelgium, Bulgaria, Canada, the Czech Republic,France, Germany, Italy and the United States.6 Here,particularly in the case of homosexual unions,co-habitees have no right to family reunion. How-ever, it should be noted that, under France’s Law of15 November 1999,7 two adults of the same or differ-ent gender may sign a “civil covenant of solidarity”


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(Pacte civil de solidari té , or PACS) as a basis forco-habitation. The new arrangements will probablyhave implications for family reunion. For the timebeing, they entitle co-habitees to a temporary resi-dence permit (marked “vie privée et familiale” ), pro-vided that the two have already lived together for atleast three years in the case of co-habitation with aFrench or EU national, or five years for co-habitationwith a non-EU national.

By contrast, in Finland, Norway, and the UnitedKingdom if the relationship has existed for at leasttwo years, Switzerland, Australia, the Netherlandsand Sweden, co-habitees do have entitlement tofamily reunion. In the two last-named countries, ahomosexual relationship is no obstacle to familyreunion, while in Australia it must have been inexistence for a year. A homosexual relationship isacceptable as long as one of the parties is a

Table II.3. Family members eligible to benefit from the family reunification procedure

1. Polygamous spouses are not allowed to benefit from family reunification in the countries presented in this Table.2. Must be orphans, unmarried and less than 19 years of age.

Spouses1 Non marriedpartners

Minor children ParentsBrothers

and sistersOthers

Australia X XThe relationship

(homosexual included) must

have existed for at least 1 year

X X X XNephews, nieces,

fiancé(e)s

Belgium X X XOnly of

Belgium nationals

only in exceptional circonstances

Bulgaria X X

Canada X (Under review) X X X2 X(Nephews, nieces,

grandchildren)2

Fiancé(e)s

Czech Rep. X X X X

Finland XThe couple must

have cohabited for at least 1 year

X X Only inexceptional cases

Only inexceptional cases

XFiancé(e)s

France X X

Germany X X

Italy X X X X Dependent parents (first,

second or third generation only)

Netherlands X X(Including

homosexual partners)

X X

Slovak Rep. X X

Spain X X

Switzerland X X X

United States X XQuotas

XAmerican

nationals’ Quotas

Married childrenof an American

national


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national, or has a settlement permit, or has beengiven asylum.8 There is no reference to this criterionin Bulgaria.

Polygamous husbands

The question as to whether polygamous fami-lies should benefit from family reunion has beenraised in many countries, particularly in Europeancountries. The current situation is quite clear: law-makers only acknowledge the European family, andpolygamous marriages are therefore ruled out. Thisis the solution that has been adopted in all the leg-islative systems examined.9 Justification for thisexclusion is based on the idea that family reunion isdesigned to further the integration of foreigners inthe society in which they are living, and polygamy, amatter on which western law is totally silent, makesintegration into western society much more difficult,not to say impossible. Generally speaking, polyga-mous husbands may only be joined by one wife andher children. However, in Australia, polygamous hus-bands do not meet the statutory definition of“spouse” and they are therefore unable to takeadvantage of any family link; however, they maybring over all of their (natural and adopted) childrenas long as they are dependent.

In France, the Council of State decided in 198010

that the right to lead a normal family life meant thata polygamous husband could bring his wives intothe country. This solution was replaced by the Lawof 24 August 1993,11 and the regularisation exercisecarried out in June 1997 excluded foreigners living inpolygamous relationships.

An obligation to co-habit

To be sure that a marriage has really taken place,many countries insist that the spouses (or co-habitees)live together for a period of time. Failure to do so mayencourage suspicions that it is a marriage of conve-nience ( e.g. in the Netherlands, Switzerland and theUnited States). Separation and divorce therefore affectthe spouse’s leave to remain, particularly if it happensduring a waiting period following effective reunion.Countries respond differently to death: some(e.g. Australia, Canada, the Netherlands, Slovakia andSwitzerland) assimilate it into divorce; in Canada,death does not affect the right to remain provided thespouse has arrived in Canada, and most of the othercountries in the survey adopt the same attitude.

In most countries, divorce means that thespouse’s right to stay is withdrawn. This is the

situation in Spain, for instance, unless the spouseshad been living together for the previous two years,in France if the divorce occurs within one year ofreunion, in the Netherlands and in Sweden when itoccurs within two years of reunion, and in Switzerlandwhen it occurs within five years of reunion. A similarsolution is employed in Slovakia where the resi-dence permit cannot be renewed, particularly if thecouple have no children of their own.

A waiting period of one year applies in Belgiumand France. Under Belgian law,12 the Minister has aone-year waiting period that may be extended bythree months during which he may decide whether aspouse may stay; he may therefore check on thecohabitation rule during this period.13 If the spousesno longer live together, or if they are in the processof getting divorced during the year following theirentry into France, the card issued to the spouse maynot be renewed (temporary card) and may even bewithdrawn (resident’s card).

In Finland, divorce within two years of familyreunion cancels the entitlement to stay if thespouses have no children of their own. In theNetherlands, if the marriage (or co-habitation)breaks up in the three months that follow familyreunion, the spouse no longer has any right to stayexcept for humanitarian reasons. After three years ofmarriage, the spouse has a personal entitlement tostay as long as he has lived legally in the Netherlandsfor a year as a result of his marriage, and can supporthimself. He also has free access to the labour marketwithout the need for authorisation. A refusal to grantleave to remain must take account of Article 8 of theEuropean Convention on Human Rights. Finally,when the spouse or co-habitee has been living inthe country legally for five years, he is entitled to apermanent residence permit as long as he has themeans to support himself, and is no threat to publicorder and public or national security.

In G erm any, fa i lu re to co mply wi th t heco-habitation rule results in the residence permitbeing withdrawn if the couple have lived in theFederal Republic for under four years. In Bulgaria,the right to family reunion is cancelled if the mar-riage breaks up within five years, or there is suffi-cient evidence that co-habitation has ceased.However, in the case of refugees, divorce does notterminate the right to stay of spouses and children.In Norway, the right to stay terminates if the mar-riage ends within three years of reunion, througheither divorce or death.


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In Switzerland, the right to stay granted tospouses terminates as soon as they cease livingtogether or get divorced within five years of familyreunion. The government then has discretionary pow-ers to allow the individuals to stay. Different provi-sions apply to spouses who have been given anentitlement to settle: they only lose their right to stayif they commit breaches of public order or if their set-tlement entitlement is revoked. Children have thesame status as the parent in whose charge they are.

However, in some countries, the break-up of amarriage and death make no difference to familymembers. This is true of Australia or Italy (where theresidence permit may be altered to include a rightto work or follow a course of study). It is also true ofthe United Kingdom if the spouse or children havebeen granted permanent leave to remain. The solu-tion is more uncertain for those with only temporaryleave to remain. In the Czech Republic, a foreigner’sresidence permit may expire if he fails to declare anabsence of more than 180 days. Fraud and failure tocomply with criminal law will similarly cause a resi-dence permit to be withdrawn. In most countries,when a couple no longer live together as a result of adeath, this does not result in the refusal of aresidence permit.

In Germany, the death of a spouse does notautomatically lead to the loss of a residence permit;this can be renewed from the t ime th at theco-habitation became effective. The same provi-sions apply in Belgium and in Spain where peoplewho have benefited from family reunion have a rightthat cannot be taken away from them: spouses andchildren are entitled to their own residence permit ifthe initiator of family reunion was a legal resident inthe country at the time of death. In the Netherlands,the residence permits of family members are notrenewed following the death of the initiator of familyreunion. Death has no effect on the right to stay inBulgaria, Canada (if permanent resident status hasbeen granted), Finland, Italy and the Czech Repub-lic. In France, where there are no specific provisions,cases are looked at compassionately.

Conversely, in Norway the death of a spousewithin three years of reunion leads to the loss of a resi-dence permit. In Sweden, death within two years ofreunion is an obstacle to further residence in the coun-try, while in Switzerland death has the same effect asdivorce if it occurs within five years of reunion.

In many countries, the government may refuseto issue residence permits to foreigners who have

entered marriages of convenience. Examples includeGermany,14 Spain, France,15 Switzerland and theUnited States where a fraudulent marriage blocksrights to family reunion,16 or even invalidates them. Inorder to establish whether it is fraudulent, the USauthorities (Immigration and Naturalization Service)check on the facts surrounding the co-habitation.

b) Children

The children taken into consideration are usu-ally legitimate or natural children with a legallyestablished relationship. Children who have beenadopted (in Australia, France, Germany and Spain)or are in the process of being adopted (Canada) maybenefit from family reunion procedures (See for thecase of France, the distribution of persons who havebenefited from family reunion according to theirfamily ties in Table II.4.) Australia also allows instepchildren.17

Generally speaking, family reunion concernsthe applicant’s unmarried children, under the ageof 18, or who do not live independently of their par-ents (Spain), but the age limit varies from country tocountry: 16 years of age in Germany (raised to 18 inthe case of the children of refugees); 18 in Belgium,Bulgaria, Finland, France, Italy, the Netherlands,Slovakia, Spain, Switzerland and the United States;and 19 in Canada. The age limit is 21 for the childrenof nationals of a country that was signatory to theEuropean Social Charter of 18 October 1961.18 InAustralia the age limit is 25 if the child is a full-timestudent or disabled person. Some countries, likethe Czech Republic, have no age limit for children.

The right to family reunion is often extended tochildren who are dependent on the applicant’sspouse, and who must obviously meet the sameentry requirements as the applicant’s children(Australia, Canada, the Czech Republic, Finland (aslong as they arrive with the foreigner’s spouse),France, Ita ly, Germany, the Netherlands andSwitzerland). Specific conditions are sometimesattached: for example, in Germany, family reunion isan entitlement for children both of whose parentslive legally in the country, while the reunion of chil-dren aged over 16 is at the discretion of the relevantauthorities; in Bulgaria, the children of Bulgarian citi-zens and of permanent residents are includedunder family reunion procedures, although adoptedchildren aged over 18 are excluded.

In France, family reunion also concerns childrenunder the age of 18 (in Canada, under the age of 19)


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of an earlier marriage of the applicant or his spouse,whether their relationship has been established inthat parent’s name or the other parent has died orhas no longer any claim to his parental rights (inFrance, this also includes polygamous people). InSwitzerland, family reunion rights are open to chil-dren under 20 of nationals of Portugal, Spain andItaly. However, if the parents and children havebeen living separately for many years and onlycome together as the children reach their majority,requests for family reunion are turned down on thegrounds of suspected fraud. In the Czech Republic,all children qualify for family reunion, whether theyare the children of the couple or just one of the par-ents, and whether they are dependent on these par-ents or are independent.

In some countries, older children also qualifyfor family reunion if they are dependent on theirparents and/or have a disability: they includeBelgium, Bulgaria, Canada, the Czech Republic,Finland, Germany, Italy (when reunion is requestedby an Italian citizen, his children – and thoseof his spouse who are over the age of 18 andindependent – may also benefit), the Netherlands,Spain and Switzerland. Australia allows children whoare over the age of 18 and are not dependent ontheir parents to apply for a skilled worker’s visa, andnot one that covers family immigration. Generallyspeaking, the break-up of a marriage makes no dif-ference to the children’s leave to remain, althoughthe Netherlands insists that the child should haveresided in the country for at least a year.

c) Relatives in the ascending line

Relatives in the ascending line, or elderlydependants , are often excluded from familyreunion, except in unusual circumstances where thegovernment has discretionary powers. In this con-text, some countries draw a distinction between theparents of foreign nationals who have no right tofamily reunion, and the parents of their own nation-als who do qualify: they include Belgium, Bulgaria(new Bulgarian legislation restricts the right to familyreunion to the parents of Bulgarian citizens; in thepast, it had also been granted to the parents of per-manent residents), the United States (it is muchmore difficult for the foreign parents of a foreignerliving in the United States than for the foreign par-ents of an American citizen to obtain a visa) andSwitzerland.

In Germany, family reunion of an immigrant’sparents is normally not allowed except whererefusal could have serious consequences, whenthe foreigner requesting family reunion is under18 years of age, and when the decision is justifiedby humanitarian considerations. In Australia,there are no provisions specifically dealing withparents and grandparents, although they may bepermitted to enter the country as “family mem-bers dependent” on the foreigner or national.They qualify for a special visa issued under familyimmigration rules, but it may only be requested ifthe “sponsor” has been “established” in Australiafor two years.

Table II.4. Family reunification by type of relationship with the applicant, France, 1992-1998

Thousands

Source: Migration yearbooks, OMISTATS, Office des migrations internationales.

1992 1993 1994 1995 1996 1997 1998

Related to a French national 23.0 24.3 16.1 16.5 15.6 14.4 15.6

Related to a permanent resident 32.7 32.4 20.6 14.4 13.9 15.5 21.7

By type of immigrationEntry of family members 26.5 25.2 15.7 12.4 12.0 13.2 15.2Regularisation of family members 6.1 7.2 5.0 1.9 1.9 2.4 6.5

By relationship with the applicantHusband 3.7 3.5 2.2 1.5 1.5 1.9 1.8Wife 11.4 11.3 7.5 5.8 5.8 6.6 7.0Child 16.7 16.7 10.7 7.1 6.6 7.1 12.8Other 0.8 0.9 0.1 – – – –

Family members of refugees or stateless persons 1.1 1.2 0.8 0.7 0.9 1.1 1.0

Total 56.8 58.0 37.5 31.6 30.4 31.1 38.3

Total (% of total inflows) 50.6 61.6 58.5 62.6 65.1 66.3 70.6


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Canada and Finland permit family reunionwhere the beneficiaries are parents. Canada evenallows reunion for grandparents when the request ismade by a Canadian national or a permanent resi-dent aged 19 or over. In France, the elderly depen-dants of a foreign national may not use familyreunion procedures, and may only enter the countryas visitors if they can show that they have sufficientmeans to live and pay for health insurance. A state-ment that their children living in France will see totheir needs may be taken into account in determiningfinancial contribution.

Spain allows the family reunion of a foreigner’selderly dependants on condition that they are finan-cially dependent on the foreigner and there are rea-sons justifying their continued stay in Spain. Italy,the Netherlands, Sweden and the Czech Republicallow family reunion of parents and grandparents;the latter country also allows the reunion of closefamily members and, for humanitarian reasons, eld-erly persons and people living alone. The parents ofa child under 18 years of age qualify for familyreunion rights in Slovakia.

d) Brothers and sisters

Most countries exclude brothers and sistersfrom family reunion: they include Belgium (exceptunder terms set out in an agreement);19 Finland(although the close relative of a foreigner mayexceptionally be allowed to enter Finland if he isentirely dependent on the foreigner living there);France; Germany; Slovakia; and Switzerland. How-ever, certain countries do admit brothers and sis-ters: in Australia, for instance, the category ofbrothers and sisters is larger than that of “remainingrelatives” and “carers”. This latter group consists ofpeople who wish to, and are able to, give substantialassistance to a family member, or to an Australian ifhe has a serious handicap that would disable him/her for at least two years. However, there must be noAustralian person or organisation able to cover thiscost. The family of a foreigner’s fiancé(e) is alsoallowed to enter.

Canada provides for the family reunion ofbrothers and sisters, of a nephew or a niece, and ofgrandchildren if they are orphans, single and under19 years of age. It also allows family reunion for theapplicant’s fiancé(e)20 and for anyone else relatedto the applicant if he has no relatives, whetherCanadians or permanent residents. Italy also offersthis option to family members up to the third

degree of consanguinity providing that the appli-cant takes responsibility for him (this condition isnot required of Italian citizens requesting familyreunion), and, as prescribed by Italian law, to fam-ily members with disabilities. The Netherlands andthe Czech Republic also allow the family reunion ofbrothers and sisters: if the applicant is a Czechnational, he may also ask for his uncles, aunts andcousins to join him as well.

2. The families of students

Wide ranges of solutions are adopted accordingto the country. Some countries deny students theright to family reunion; this is the case in Spainand Switzerland. Others allow it, or only do so incertain circumstances: the United States and theNetherlands allow a student’s family to enter thecountry as long as they do not work. In Canada,where family reunion mainly concerns permanentimmigrants, a student’s spouse may work. In France,students normally have a right to family reunionsince the Constitutional Court quashed the Law of24 August 1993 (they were denied under this latterlegislation),21 but in practice they rarely qualifybecause they are unable to show that they have suf-ficient financial resources. In Italy, only studentswith residence permits qualify.

Like Belgium, Germany gives no right of familyreunion to the spouses of foreign students, but doesnot rule out the possibility either.22 Under Belgianlaw, reunion of a student’s family is conditional onthe student having sufficient means to live and sat-isfactory accommodation. In Finland, students onlyhave entitlement to family reunion if their studiesextend over a period of several years, and if theyhave permanent leave to remain.

3. The families of refugees and asylum seekers

The conditions governing the family reunion ofrefugees are usually set out in more flexible termsthan in common law. In Germany, a refugee’s spouseand family members have a full entitlement tofamily reunion.

In other countries, family reunion may begranted to refugees more easily than to other for-eigners: in Bulgaria, this applies to refugees, foreign-ers with humanitarian status, and asylum-seekersproviding they have acquired this status; in Finland,family reunion is open to refugees and people whohave been given a permit for humanitarian reasons,or because they are in need of protection, and who


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have permanent leave to remain. In the Netherlands,a refugee’s children under the age of 18 and hisspouse qualify for family reunion without having tomeet conditions relating to income and accommo-dation, if they have the same nationality as the refu-gee and asked to enter the Netherlands as the sametime as him/her, or have the same nationality as therefugee and have followed him to the Netherlandsfrom their country of origin or a third country withina short space of time.

Some countries issue residence permits with-out making the refugees pass through the familyreunion procedure; these include Belgium andFrance. In Belgium, the family members of a for-eigner who has asked for refugee status receive astatement of registration that has the same durationas the foreigner’s residence permit. In France, thefamilies of refugees are not covered by familyreunion provisions, but by Article 15(10) of the Ordi-nance of 1945. This law grants a full resident’s card,except where there is a threat to public order, to arefugee recognised as such by the OFPRA (Officefrançais de protection des réfugiés et apatrides), to hisspouse, to children who are under the age of 18 orwill celebrate their 18th birthday in the followingyear, when the marriage has taken place prior to thisrecognition as a refugee. If the marriage has takenplace subsequently, the resident’s permit is issuedunder the conditions that would apply to the foreignspouse of a French person, the marriage must havetaken place at least a year before, and the couplemust effectively be living together. They must alsoobtain a temporary residence permit during the firstyear of their marriage.

In the Czech Republic, a refugee’s spouse quali-fies for reunion, and both here and in Slovakia,reunion may be authorised for reasons linked to theinterests of foreign policy.

The definition of family reunion beneficiary var-ies considerably from one country to the next, butthere is an increasing convergence of practice on theconditions.

D. THE CONDITIONS FOR FAMILY REUNION

Although the conditions for family reunion varyfrom country to country, they share certain featureswith regard to the basic conditions and procedure.These conditions do not apply to members of thefamilies of EC nationals exercising their right of free-dom of movement: they are covered by the sameprovisions as EC nationals.

1. The basic conditions

The basic conditions needed for family reunioncover both the immigrant and his family members.

a) Conditions that must be met by an immigrant requesting family reunion

The foreign applicant, who is known in Australiaand Canada as the “sponsor”, is normally requiredto fulfil the following three conditions : they relate tolength of stay, means of subsistence and accommo-dation (see Table II.5). However, in Slovakia, onlyforeigners of Slovak origin, refugees, members ofthe diplomatic corps and representatives of interna-tional government organisations may have theirfamilies join them.

Length of stay

A minimum period of stay is normally requiredbefore a foreigner can be joined by his family (exceptin Slovakia). This often involves applying for a partic-ular residence permit that is not obtainable until aftera certain period of stay: for example, in Germany, thespouse’s entry and residence are protected by law ifthe first-generation immigrant holds either a resi-dent’s card (obtainable after a stay of seven years) ora simple permit to stay if he was married when heentered the country. An exception is made in respectof migrants who are allowed to come into Germanyfor humanitarian reasons and who have exceptionalleave to remain: in such cases, family reunion may begranted if it is not possible in the country of origin(Article 31 of the Ausländer Gesetz).

However, family reunion is not open to foreign-ers who have received the court’s “tolerance” (Dul-dung) or have been found guilty of a criminal offence.Second-generation foreigners must be over the ageof 18, they must have lived in Germany for eightyears, and they must have indefinite leave toremain; this permit is only issued after five years ofliving in a regular situation. In Australia and Canada,the “sponsor”23 is a national or a foreigner with resi-dent status (i.e. someone who has a visa entitlinghim live in the country on a regular basis). For aforeigner to be joined by his family in Belgium, hemust have been given authorisation either to stayfor over three months or to settle. Family mem-bers may stay, but they must meet the same con-ditions as other foreigners, that is to say theymust have permission to stay for over threemonths or permission to settle.


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In Canada and Australia, only nationals and theholders of a permanent residence permit may act assponsor. In Bulgaria, Spain, Italy and the Czech

Republic, foreigners must have permanent leaveto remain; this means that they have already beenin the country for a certain time. To obtain the

Table II.5. Conditions required of applicants for family immigration in some OECD countries

I.n.a. means information not available.X: Financing/Housing conditions required.1. Permanent status refers to three kinds of persons: family, skilled workers, refugees.

Required residence status/permit

Minimum duration of stay Financing conditions Housing conditions

Australia Permanent visaStudents are therefore

excluded

A permanent visa(often granted on arrival)

suffices except for the admittance of certain categories of family member for whom

an additional 2 yearsof residence is required

X X

Belgium 3-month authorisationof stay

I.n.a.

Bulgaria Permanent residence permit

I.n.a.

Canada Permanent visa1

Students are therefore excluded

A permanent visasuffices

Proof of the sponsor’s ability to support incoming

family members

X

Czech Rep. Permanent residence permit

I.n.a. X X

Finland I.n.a. I.n.a.

France 1-year temporary residence permit

or permanent residence permit (10 years)

The obtentionof a temporary residence permit is sufficient for the

procedures to begin

X X

Germany Permanent residence permit

Resident permits may only be obtained upon 8 years

legal residence

X X

Italy Permanent residence permit or 1-year residence permit (permit obtained

for reasons of work)

5 years X X

Netherlands Residence permit validfor more than 1 year

I.n.a. X X

Slovak Rep. Foreigners of Slovak extraction, refugees,

diplomats

I.n.a. X

Spain Permanent residence permit (Students are therefore excluded)

6 years X

Switzerland Permanent residence permit (Students are therefore excluded)

10 years (5 years in some exceptional cases)

X X

United States Permanent visa(green card)

A permanent visasuffices

X


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documentation, they must have spent at least sixmonths in Spain, and five years24 in Italy. In Italy, for-eigners may also hold permits allowing them tospend at least a year in the country for the purposeof taking employment or working in self-employment,or other documentation giving them asylum status,allowing them study, and granting them entry forreligious reasons.

In Finland and the Netherlands, foreignersmust have permanent leave to remain for at least ayear. The same rule applies in France where theapplicant must have lived there legally and had atleast a one-year permit25 (i.e. leave to remain or aresident’s card). In Switzerland, a foreigner has noentitlement to family reunion unless he holds apermission to settle: this permit is only issuedafter a stay of ten years (five years in the case ofsome foreigners).

Financial resources

Family members must not be a charge on thepublic purse of the receiving country. For this rea-son, the applicant must provide evidence of regularand sufficient personal financial resources to caterfor his family’s needs: in most cases this means hemust have a job and be covered by a social insur-ance scheme. This is a normal condition for perma-nent or long-term leave to remain. These provisionsalso apply in Germany and the Netherlands wherethe right to family reunion is withheld from peoplewho are in receipt of benefits and social assistance.

In Australia, the sponsor has to make an under-taking to pay for his family members’ needs for atleast two years, and possibly take out an insurancepolicy against having to rely on social aid. InCanada, although state aid can be taken intoaccount, the sponsor normally has to prove that hehad enough money during the twelve months pre-ceding the application, and promise to cater for hisfamily’s needs for a period of ten years. Failure tocomply with this undertaking may prevent him fromstanding again as a sponsor.

In Switzerland and the Czech Republic, it is nec-essary for an applicant to provide evidence of suffi-cient financial resources accruing from his goods orhis spouse’s job, or else set out in a bank statementthat he has the equivalent of the monthly minimumwage each month for a year. In Slovakia, the personreceiving family members must also pay for theirexpenses.

No condition attached to money or having a jobis imposed in Belgium (family members are not cov-ered by Article 3(1) of the Law of 15 December 1980whereby, to enter the country, a foreigner mustmanifestly have means of subsistence) and in Bulgaria.

In Finland, means-testing is applied, but thereis no obligation to have a job. Means-testing is notrequired of refugees, people who are in need of pro-tection, or those who have been granted entry forhumanitarian reasons.

In France, an entrant’s financial resources mustbe no less than the SMIC26 and these are assessedindependently from any family contributions hemay receive. A regular source of income is the solecondition demanded of EC nationals.

In Italy, with the exception of refugees, foreign-ers who seek family reunion must show evidence ofa legal income of no less than the Family AssistanceBenefit (i.e. FRF 1 500 per month) if they want tobring in only one family member; this minimum isdoubled for two or three people, and tripled for fouror more. Total income is calculated on the basis ofthe incomes of all the people living with the for-eigner, but this condition does not apply to Italiancitizens who request reunion.

The Netherlands say that a foreigner who hasworked uninterruptedly for three years, and earnedthe minimum wage set by law, is deemed to havesufficient means of subsistence27 as long as the pay-ment of this minimum wage is guaranteed for sixmonths. Compensation payments received for shortp e r i o ds o f u n e m pl o y m e n t a r e c o u n t e d a semployment income.

Special conditions apply to four particular typesof applicant: Dutch nationals, refugees, refugees withleave to remain (status C), and people with perma-nent leave to remain. Furthermore, the means-testingcondition is waived in respect of some people: peo-ple aged 57 and over, a parent living alone with oneor more children aged under 5, people with a total,permanent disability, and some cases of long-termunemployment. These exceptions only apply to thefamily reunion of the spouse and children of a couplebelonging to the four aforementioned categories.28

Accommodation

In Au stra l ia , Can ada, G e rma ny an d t heNetherlands, the applicant must show evidence ofadequate accommodation in which to house hisfamily when he makes the application.


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This condition is waived in the Netherlands inthe case of people with Dutch nationality, refugeesand those who have been granted asylum; the samecondition is required in France where the applicantmust, when the family reunion takes effect, haveaccommodation deemed to be normal for a similarlyconstituted family living in France. In Italy, appli-cants must have suitable accommodation thatmeets statutory requirements. The consent of theowner of the accommodation is necessary in thecase of family reunion affecting children under theage of 14, although this condition is waived forItalian citizens seeking reunion; refugees are notcovered by this rule. Similarly, in Switzerland, suit-able accommodation and child-care arrangementsare compulsory.

In the Czech Republic, the applicant must ownthe property, and be able to present the title deedor lease. This accommodation test is not applied inBelgium, Bulgaria, Spain, the United States, Finlandor Slovakia.

b) Conditions that must be met by family members who come in under a family reunion scheme

No threat to public order

In no country may family members constitute athreat to public order, public security or nationalsecurity (see Table II.6). In France, they must nothave been expelled from a country or banned fromentering another, and in Canada, Finland and theCzech Republic they must not have a criminalrecord. In Italy, family members must not be a threatto public order either in Italy or in another countrythat implements the Schengen agreements. In the

Netherlands, family members over the age of 18must hand in a signed statement that they do nothave a criminal record; imprisonment for a criminaloffence with no possibility of remission may begrounds for refusing reunion. More lenient rulesapply to a Dutch person’s family members, refugeesand those who have been given asylum. In Slovakia,a family member must not have committed a seriousoffence or worked in the country illegally.

The health test

In some countries, people covered by a familyreunion procedure must not have an illness or condi-tion that endangers public health, public order or pub-lic security. In Canada, Spain, France and theNetherlands, they must produce a valid medical certif-icate. In Canada, the medical certificate must be validat the time of landing. This condition is not enforced inother countries.

“Once-and-for-all” reunion and cascade reunion

Only some countries have regulations coveringthis. Australia limits sponsoring the reunion of aspouse, fiancé(e) or homosexual partner to twooccasions within a space of five years. Moreover, aspouse, fiancé(e) or homosexual partner who hasbeen sponsored may not act as a sponsor for anotherfive years. There are a few exceptions to this rule inthe case of death and in the event of separationwhere there are children.

Since the law of 1984, Belgian law has bannedcascade reunion except where a treaty states to thecontrary.29 Therefore, when a foreigner has beengiven permission to stay under provisions relating

Table II.6. Conditions to be fulfilled by family members seeking to be accepted under family reunification procedure

Not known to be a threat to public order

Absence of criminal record Health conditions Possibility of changing status

Australia X X XBelgium X XBulgaria XCanada X X XCzech Rep. X XFinland X X XFrance X X XGermany X in some exceptional casesItaly X XNetherlands X X X X (only refugees)Slovak Rep. X XSpain X XSwitzerland XUnited States X


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to family reunion, he is not allowed to benefit fromthis procedure again. Moreover, when family reunionhas been requested in respect of some family mem-bers, the reunion of other members may not berequested during that year or in the year followingthe initial reunion.

The Law of 1993 in France states that familyreunion may be requested in respect of all familymembers, but lawmakers included an exceptionwhen they decided the family reunion could begranted for reasons linked to the child’s interests. Thelaw provides for Prefects to have wide powers of dis-cretion in this regard; these provisions do not applyto Algerians. In the Netherlands, family members whohave entered the country under family reunion pro-cedures since 17 September 1993 cannot themselvesapply for family reunion for another three years.

Regularisation of family members already in the country

Family members frequently need not havelived in the country in order to use the familyreunion procedure, but this right is subject toamendment in certain countries; it is even abol-ished when the law provides for possible regularisa-tion. In Germany, regularisation very rarely appliesin the event of a marriage that takes place afterimmigration and when a child is born in the country;however, regularisation is out of the question if thefamily member holds an ordinary tourist visa.

In France, no regularisation is possible underfamily reunion rules for foreigners already living inthe country; however, the Circular of 25 June 1997 onthe regularisation of certain foreigners provides forthe regularisation of children under 16 who enteredFrance in breach of the family reunion procedure.30

The principle of non-regularisation has applied inthe Netherlands since the Law of 11 December 1998whereby foreigners have to request a long-stay visafrom their country of origin. Exceptions are made inthe case of refugees. Regularisation is officiallyimpossible in Switzerland.

By contrast, some countries allow the regulari-sation of family members who are already in thecountry. For example, Australia allows them to applyfor a permanent visa when they are already inAustralia. In Belgium, a check is made to ensure thatentry into the country was regular, but a foreignerwho presents papers proving that he falls into oneof the categories contained in Article 10 of the Lawof 1980 must be listed on the register of foreigners.The local authority informs the Minister and gets his

agreement; this means that the foreigner’s presencein the country is not an obstacle to family reunion.

In Finland, regularisation is possible if a refusalwould be unreasonable. This is also true in Italywhere a valid permit to stay may be turned into apermit to stay issued for family reasons, although itdoes not apply to members of an Italian’s family whohold a residence card and therefore have an entitle-ment to live in Italy. Bulgaria and Slovakia dispensewith this limitation.

2. The procedure

In most countries, the government has wide dis-cretionary powers to allow or reject family reunion,although there are cases where reunion is a right(Germany) or where the government cannot turndown an application for reunion if the conditions aremet (Belgium and France). The procedures vary: insome countries they are operated by special organi-sations; in others the immigration authorities controlthem. The latter system applies in Australia,Belgium and Canada.

a) The competent authorities and the processingof requests

Competence to decide on family reunion lieswith the Federal governments (Foreign Ministries),Foreigners’ Offices in the Länder, and authoritiesspecialising in the status of foreigners in certain cit-ies. The application is made to the department atthe Mayor’s Office in the main town in the regionwith responsibility for foreigners. The applicantmust provide all necessary documentary evidence.Because of the wide powers of discretion availableto the government, failure to meet these conditionsdoes not necessarily mean that the application willbe turned down.

In Australia, the Department of Immigration andMulticultural Affairs has authority to grant immigra-tion papers and issue permanent entry visas. InBelgium, the normal procedure for foreigners enter-ing the country is used. A foreigner with leave toremain only has to provide the government withproof that he falls into one of the categories listed inArticle 10 of the Law, and in particular paragraph 4.He is given full leave to remain if he meets these con-ditions, the government’s role being simply to checkthat the conditions are met. An initial examinationphase looking at the admissibility of the applicationto remain is the task of local authority; a second


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phase that focuses on the cogency of the request isthe responsibility of the Foreigners’ Office.

In Bulgaria, the application is addressed to theMinistry of the Interior, the national law-and-orderenforcement department with authority to issue visasand passports. In Finland, the Director of Immigration(Ministry of the Interior) has authority to allow familyreunion; he takes advice from the Foreign Embassyand local law-and-order agencies. In Canada, familymembers are given permission to enter the countryby the immigration authorities or by the immigrationservices in Quebec for people wishing to settle there.If there is a crime or security issue, responsibility ispassed to the Royal Canadian Mounted Police andthe Canadian Security Intelligence Service.

In France, a request for family reunion is sub-mitted to the DDASS (Direction départementale de l’actionsanitaire et sociale), which examines admissibility. If theapplicant meets the conditions relating to stay andperiod of stay, and family members meet conditionsset out in Article 29 of the Ordinance of 1945, theDDASS issues the applicant with a statement in sup-port and sends a copy of the file to the Prefecture,and to the OMI (Office des Migrations Internationales)which oversees conditions relating to the applicant’saccommodation31 and finances. The Prefecture isthen contacted to check that family members arenot a threat to public order.

In Italy, the Commissioner of Police grants per-mission in the applicant’s town of residence; theapplicant may appeal against refusal to the court inthe area where he lives. If the applicant is an Italiancitizen, the visa is issued by the Italian embassy orconsulate abroad. In the Netherlands, the compe-tent authorities are the Department of Immigrationand Naturalisation (at national level), which comesunder the Ministry of Justice, and the Foreigners’Police (at local level). In Switzerland, authority lieswith cantonal governments.

In Slovakia, the responsibility rests with theMinistry of Foreign Affairs, as far as people ofSlovakian origin are concerned, and the Ministry ofthe Interior for the others. Similarly, in the CzechRepublic, it is a matter for the Ministry of the Inte-rior’s Department of Foreigners’ and Border Police.The request is submitted in the first instance torepresentatives of the district.

b) The decision

In general terms, there is hierarchical and/oradministrative, and sometimes legal, recourse to

decisions blocking family reunion. Finland is the onlyexception. In Germany, reasoned decisions are takenby the local or regional government to which the appli-cation was made; a refusal, or the absence of a replyafter a period of three months, brings the matter to theattention of the Administrative Tribunal. This challengemust be preceded by a hierarchical approach, and it isnot possible if the applicant is abroad.

If a visa application is refused in Australia,application can be made for review by the MigrationInternal Review Office (MIRO) and for appeal to theImmigration Review Tribunal (IRT). In Belgium, the deci-sion is taken by the competent Minister within oneyear; this period may be extended once by threemonths; the foreigner’s name is then listed on thelocal authority’s register of foreigners. Refusal togrant permission triggers a hierarchical recourse inlaw by way of a review before the Minister; the lattermust seek an opinion from the Consultative Com-mission of Foreigners, and possibly seek annulmentbefore the Council of State.

In Bulgaria, the person who is refused familyreunion may take his case to the Regional Courtwithin 7 days of being notified of the decision, or tothe Supreme Administrative Court within 14 days,depending on the department that took the decision.

In Canada, the person whose sponsorshipapplication for family reunion has been refusedmay appeal to the Immigration Appeal Division of theImmigration and Refugee Board (IRB). The ImmigrationAppeal Division sends the decision and reasons forrefusal to the government department responsiblefor visas.

In France, the Prefect may, within six months ofthe initial application being submitted, decide in areasoned argument to permit family reunion if theconditions are met. Appeals against possible refus-als are heard by the Ministry of the Interior (Directiondes libertés publiques et des affaires juridiques, or DLPAJ),the Ministry of Social Affairs (Direction de la Populationet des Migrations, or DPM), depending on the compe-tence of each of its departments. Actions ultra viresmay be brought before Administrative Tribunals at alater date.

In Italy, appeals against a decision to refuse fam-ily reunion are heard by the regional administrativetribunal of the foreigner’s legal hometown. In theNetherlands, an administrative challenge may bemade to the Ministry of Justice’s Department of Immi-gration and Naturalisations; the case may then go onto the district tribunal specialising in immigration law.


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In Switzerland, cantonal decisions that are alsoadministrative decisions may be challenged undereach canton’s procedural law. Where the federalauthorities have competence, a challenge is possi-ble under federal procedural rules. Lastly, when aforeigner has a permit to stay, he can take his caseto the Federal Tribunal.

In Slovakia, a decision must be taken within60 days of the application being made; ordinaryadministrative procedures may be invoked in theevent of refusal. In the Czech Republic, the appli-cant may appeal against the district authorities’decision to the Minister of the Interior’s Departmentof the Foreigners’ and Frontier Police; their decisionis final. In Finland, there is no way of appealing arefusal to grant entry. Draft legislation provides forthe possibility of an appeal, but it has not yet beenvoted on; however, the family member who isalready in the country may go to the administrativetribunals to appeal against a decision to refuse.

E. THE EFFECTS OF FAMILY REUNION

The granting of family reunion brings with it anumber of rights: they include leave to remain, theright to work, social protection, and protection frombeing removed from the country. The situation var-ies considerably from country to country (seeTable II.7).

1. The granting of a permit to stay

Generally speaking, family members aregranted the same permit to stay as the person theyhave come to join; it may be temporary or perma-nent, although there are sometimes exceptions. InGermany, for example, when the foreigner has a per-mit that has limitations of time or space (Aufenthalt-besichtigung), family members are only entitled tolimited leave to remain renewable every year(Aufenthalterlaubnis). He may be issued with anAufenthaltbewilligung (Ausländer Gesetz, Article 29), atemporary residence permit for a maximum of twoyears if the initiator of family reunion is on missionor has a specific activity to conduct in Germany for alimited period (e.g. a course of studies), or a specialpermit for family reunion (Familienzusammenführung).The spouse or other family members are entitled toan indefinite residence permit once they have livedin the country for five years with a temporary permit,provided that they speak sufficient German, meetthe relevant accommodation criteria, have sufficientmeans and are not likely to be deported. With

regard to the foreign members of the family of aGerman citizen living in Germany, they are given anindefinite permit after three years’ residence, pro-vided that they speak sufficient German and havenot committed breaches of the peace. Childrenallowed into the country on grounds of familyreunion are entitled to an unlimited residence per-mit if, on their sixteenth birthday, they have held atemporary residence permit for eight years.

A one-year permit is issued in most countries,but a permanent visa is issued in Australia andCanada. In Australia, this is issued within the limitsof the quota applying to specific categories of for-eigners and it entitles the holder to live in the coun-try for an indefinite period. In Canada, the holdermay take out Canadian citizenship after a permanentstay of three years.

In Belgium, like ordinary foreigners, familymembers may ask to be listed in the register of for-eigners when they receive a permit to stay; this per-mission is granted for an unlimited period, but theleave to remain that gave the initial entitlement isvalid for only one year. The applicant must seekextension or renewal from the local authority for hisplace of residence. Family members qualify for asettlement permit if the foreigner for whose benefitthe family reunion has taken place also has one. InSpain the first residence permit is valid for one yearand renewable for two further years. The ordinarypermit is valid for three years. A permanent resi-dence permit is issued to foreigners after six yearsin the country as a legal resident. In Finland, familymembers receive the same kind of leave to remainas foreigners, but for a maximum of one year. Thespouse of a Finnish citizen receives permanentleave to remain that is based on the marriage; thepermit is valid for one year and is renewable.

In France, family members receive a one-year,unconditional temporary permit to stay32 (familymember rules) or a ten-year resident’s card,depending on the circumstances. When the Prefectrules in favour of family reunion, the OMI is handedthe task of bringing the family into the country. ThePrefect also makes a small charge. The permit is ren-dered null and void if reunion does not take placewithin six months of the Prefect announcing hisfavourable decision.

In the Netherlands, the permit to stay setsout the purpose of the stay (e.g. marriage orco-habitation); it is valid for one year and is renew-able. A refugee’s spouse and children are entitled to


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Table II.7. The rights accorded to those entering under family reunification procedures

1. The right to take up employment is granted immediately to the spouses of Finns, to refugees and to other persons who have been permitted to enter forhumanitarian reasons.

2. Those family members who arrive with the sponsor are however not permitted to work.3. The possibility to claim that expulsion would cause particular hardship to the family is left open.

Authorisation of stay grantedAccess to the labour

marketSocial

security

Protectionagainst

expulsion

Reexamination of family reunification in the case of:

Permanent TemporaryDeath

of the sponsorDivorce

Australia After 2 yearsof stay

2-year visa (quota)

9-month visa (quota) for fiancé(e)

X Usually after 2 years

Belgium 1 year X X X XIf it occurs

within 1 year

Bulgaria 5 years X XIf it occurs

within 5 years

Canada Permanent visa (Canadian

citizenship may be obtained after 3 yearsof residence)

X X(same rights

as other categories

of permanent residents)

X(same rights

as other categories

of permanent residents)

Czech Rep. 5 years X

Finland If the sponsor has this status

1 year X1 XIf it occurs

within 2 years

France 10-year permit if the sponsor has

this status

1 year, if the sponsor holds

this kindof permit

X2 X X Cases are treated

on their merits, sympathetically

XIf it occurs

within 1 year

Germany 1 year (3 years for the family

membersof a national)

One year to obtain a Betugnis; 4 years to

obtain a Aufenthalterlaubnis; 6 years to have

unrestricted access to the labour market

X X XIf it occurs

within 4 years

Italy If the sponsor has this status

If the sponsor holds this kind

of permit

XExcept for parents

X

Netherlands 1 year X X XIf it occurs

within 3 years

Slovak Rep. 1 year X Death is treated in the same way

as divorce

X

Spain I.n.a. I.n.a. X X

Switzerland 2 years (permanent

permit) or 1 year if the applicant

holds a temporary

residence permit

X Death is treated in the same way

as divorce

X

United States I.n.a. I.n.a. Depends on the kind of visa

Partial X3


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a derived refugee status with the right to permanentstay. After five years as a legal resident, the spouseor co-habitee may apply for a permanent settlementpermit, provided that the family has an adequate,stable income and that no serious offence has beencommitted. The children obtain a settlement permiton their eighteenth birthday, with no conditions inrespect of resources, if they have been legalresidents in the country for five years.

In the United Kingdom, if the person at the ori-gin of family reunion is a British national or has per-manent leave to remain in the country, familymembers will be given unlimited leave to remain.Otherwise, the family members will be given tempo-rary leave to remain and will only be able to obtainunlimited leave to remain after four years in thecountry.

In Slovakia, the stay is normally permanent, butthe permit is issued for one year renewable. In Italy,the validity of a permit to stay issued for family rea-sons is copied from the foreigner’s leave to remain,and is renewable at the same time. If the applicantis an Italian citizen, the authorisation given to familymembers takes the form of a permanent resident’sc a r d u n l e s s t h e y c o m m i t ce r t a i n o f f e n c e s(Articles 380 & 381 of the Italian Criminal Code).Under legislation applying the Strasbourg Conven-tion of 5 February 1992 on the Participation of For-eigners in Public Life at Local Level, this card allowsthe holder to enter the country without a visa, takeany job in Italy, make use of public services, andexercise the right to vote.

In Switzerland, a spouse who joins a foreigner withsettlement papers has a right to the same entitlementas long as the couple lives together; the settlementpermit allows permanent stay, but is renewable aftertwo years. After a regular and uninterrupted stay of fiveyears, the spouse has a personal right to a settlementpermit. If the foreigner only has permission to stay, hisfamily members are only entitled to a permit to stayfor one year renewable as long as reunion conditionsare complied with. The same one-year permit is issuedto the foreign spouse of a Swiss citizen, although hehas a right to a settlement permit after he has lived inthe country for five years. The law makes no provisionfor a Swiss citizen’s foreign, single children under theage of 18. Analogously, case law contains legislationcovering the children of foreigners who have settled inSwitzerland subject to keeping public order and abuseof rights. A child qualifies for a settlement permit,although in certain circumstances he may only receivea permit for one year renewable.

In Bulgaria, there are foreigners’ identity cardsvalid for five years, permanent residents’ cards andrefugee cards. Travel documents are given torefugees and stateless persons.

2. The right to work

In this area, there is a difference in approachbetween countries that allow family members towork, and those that deny them this right or applymore or less stringent conditions.

a) Countries that allow family members to work

In many countries, family members have theright to work as soon as they arrive in the country. Adistinction is sometimes drawn depending onwhether family members come to join a foreigner, anational or a refugee. In Belgium, Work Permit A,which gives unlimited leave to remain, is issued tothe spouse and children of foreigners who alreadyhold that Permit. In Bulgaria, foreigners with anidentity card may perform any job except one thatforeigners are banned from taking under the Consti-tution. In both Canada and Australia, a foreigner maywork as soon as he has a permanent resident’s visa.

Spain allows family members to work andplaces no obstacles in their way. In Finland, the rightto work immediately is only extended to peoplewho have refugee status, are in need of protection,or are the spouse of a Finnish citizen. In France,both the temporary permit to stay and the resident’scard give the holder the right to take any kind ofemployment permitted by current legislation. InItaly, a person with leave to remain for family rea-sons is allowed to start work immediately inemployment or self-employment.

The Netherlands allows family members to startwork immediately; the same right applies to thefamily members of refugees, of people with Dutchnationality, of foreigners with permanent or one-yearleave to remain with no restrictions, and of foreignerswith limited leave to remain. However, a student’sfamily is not allowed to work.

In the United Kingdom, the right to work stemsfrom the right to remain and, as soon as family mem-bers have been authorised to stay, they may take upemployment. In Slovakia, foreigners of Slovakianorigin who have a right to stay may take employ-ment without a work permit; the same applies to ref-ugees. Otherwise, only long-term permits give aright to work, but only if they have been issued forthat purpose. Both Sweden and Norway require


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family members to hold work permits if they are tobe authorised to work, unless they have settlementpermits. In Switzerland, a permit to stay includesthe right to start work immediately. In the CzechRepublic, a foreigner with permanent leave toremain is deemed to be a Czech citizen except inrespect of the right to vote and conscription.

b) Countries that do not allow family members to work

There are very few countries in this category. Infact, only in Germany are family members notallowed to enter the labour market immediately.Holders of an Aufenthalterlaubnis must wait for fouryears, whereas those with a permit specificallylinked to family reunion (Betugnis) may enter thelabour market after one year. The employment situ-ation is uneven as far as they are concerned: on theone hand, family members may only obtain a workpermit without restriction after being in the countrylegally for six years.33 On the other hand, a foreignfamily member of a German person who lives inGermany and holds an Arbeitsberechtigung faces norestrictions to labour market access. A similar situa-tion is found in Switzerland where family memberscannot enter the labour market immediately. Theyhave to wait for a work permit to be issued by thecantonal authorities. However, there is no minimumwaiting period before the permit is granted.

Generally speaking, in the United States, thefamily members of non-immigrants are not allowedto work. Some distinctions need to be drawn accord-ing to the different visas that family members hold.The following family members may not work: tempo-rary workers holding an H-4 visa, employees oninter-company transfers (L-1 visa), investors andbusinessmen with entitlements under a treaty (E-1and E-2 visas), foreigners with exceptional skills,athletes and performers (O-3 and P-4 visas), repre-sentatives of the information sector and news media(I visa), students (F-1 and M-1 visas), religious(R-2 visa), and exchange visitors (i.e. researchers anduniversity teachers) (J-2 visa); the latter may beallowed to work in certain circumstances. The sameprocedure is applied on a case-by-case basis, and,subject to reciprocal arrangements, to the familymembers of a foreign diplomat (visas A-1 and A-2)and the families of foreign representatives of inter-national organisations (visas G-1 and G-4). Thoseholding visas G-2 and G-3 may not work.

In France, the accompanying family34 admit-ted for exceptional reasons with a temporary

worker (particularly an executive on secondment)may not work.

3. Entitlement to social protection

Foreign workers in Belgium, France, Germany,Italy, the Netherlands and Spain normally qualify forthe same social protection as nationals; this protec-tion is extended to family members who live legallyin the country, particularly with regard to social ben-efits. However, there are differences in the kind ofprotection sought. In Australia, social protection isonly made available after a period of two years start-ing from the date of arrival in the country, or fromthe issue of a permanent visa . In the UnitedKingdom, entitlement to social protection variesaccording to the category of leave to stay. Further-more, the situation regarding access to social securityand social assistance is highly complex.

4. Protection against being removedfrom the country

Not all countries have a system of protectingfamily members from removal, but such protectionis relative as it only makes removal more difficult,and does not rule it out altogether. The fault oftenlies with the kind of permit. In Germany, in theevent of removal, Article 45(2) of the Law on foreign-ers obliges the government to take account of theforeigner’s period of stay, particularly any familylinks he may have with the country, and the conse-quences that exclusion may have for the familymembers with whom he lives legally in Germany.

In Belgium, the husband or wife of a Belgian,foreigners living in Belgium legally and uninterrupt-edly for at least ten years, foreigners settled inBelgium but have become incapable of working, andforeigners permanently incapable of working areprotected against removal or expulsion exceptwhere there is a threat to public order or publicsecurity (Article 21 of the Law of 1980). Similarly, inFrance, Article 25 of the Ordinance of 1945 expresslyprovides for those affected to be accompanied tothe frontier, and for expulsion never to be used inthe case of the following: a child under the age of 18,a foreigner who can show he has lived normally inFrance since the age of 10 at the most (or at least15 years), the spouse of a French person where theyare still living together and the spouse still hasFrench nationality, the foreign mother or father of aFrench child, or a foreigner in receipt of an occupa-tional accident or illness pension paid by a French


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organisation, or who has a permanent disability of atleast 20%.

There is no question of absolute protection ascommitting a crime that results in an unsuspendedsentence of five years’ imprisonment leads to a lossof immunity (except in the case of children underthe age of 18), and to expulsion because of the needto ensure the safety of the state or public security.35

In this context, it is important to refer to the protec-tion given in European countries under Article 8 ofthe European Convention of Human Rights: it hasbeen frequently used to place restrictions on theremoval of family members.

In Canada, once migrants have obtained the sta-tus of permanent resident, the conditions under whichthey are protected against removal from the countryare the same, regardless of their status upon entry(with the exception of Convention refugees).

In the United States, family members cannotavoid expulsion, but, in seeking to have the immi-gration judge’s decision overturned, they may pointto the particular “hardship” that the measure iscausing to family life. In Spain, the removal of familymembers after two years’ legal residence is subjectto restrictions. In particular, the family members of amigrant with a permanent residence permit may notbe removed. The same applies if the migrant waspreviously Spanish or was born in Spain and haslived there for five years, or if he receives a pensionin respect of an occupational disease or accident.36

In Norway, settlement permit holders are pro-tected against expulsion, unless they have commit-ted serious offences37 and provided that thesanction is not disproportionate with the family lifeof the person concerned. In the Netherlands, chil-dren aged under 18 living with a parent may not beremoved, nor can foreigners born in the Netherlandsor allowed in before the age of ten if they have livedin the country for at least 15 years. After 10 years’residence, removal is only possible if the personhas been convicted of a major drug-dealing offence.

In Sweden, those who have spent more thanfour years in the Kingdom will only be subject toexpulsion under exceptional circumstances. Expul-sion is not possible for foreigners who enteredSweden before the age of 15 and have lived therefor over five years.

F. CONCLUSIONS

This comparative study of family reunion high-lights certain lines of convergence: the recent intro-

duction of legislation covering family reunion, theexclusion of temporary workers from entitlement,the more favourable status given to refugees, therejection of polygamy, the obligation to cohabit, andthe right of family members to have a job. There arealso great similarities in the requirements that theapplicant must meet with respect to financialresources and accommodation, and the absence ofany threat to public order by the incoming familymembers. Governments play a key role in allowingreunion, and their decisions are usually appealablebefore the courts. Appeals against refusals to issue avisa stand little chance of success.

This similarity that marks family reunion lawdoes not mean that, for example, there are no diver-gences affecting the definition of family members:there is widespread agreement that this termincludes the spouse and children of a foreigner oreven a national, but a wider range is achieved byextending the family, for example to includeco-habitees, elderly dependants, brothers and sis-ters. The concept of the accompanying family, too,triggers differences. There is also disagreement inrespect of the length of stay giving entitlement tofamily reunion, the possibility for family membersalready in the country to be legalised by proceduresother than those governing family reunion, and thekinds of permit issued to family members.

This study has not provided scope to look indepth at the social protection afforded to familymembers. Furthermore, the concept of the familyneeds to be more clearly defined. This is becausethere would appear to be a number of situationsthat do not necessarily require the same solutions:

– The immigrant’s family, consisting of no morethan the spouse and children, may alreadyexist when the immigrant arrives. This leavesus with two scenarios: either the immigrantarrives with his family, and we are dealingwith an accompanying family, or he leaves hisfamily in his country of origin and seeks familyreunion as soon as he settles in the receivingcountry.

– The immigrant settles his family in the receiv-ing country, and this in turn gives rise to threesituations: either the immigrant marries anational of the receiving country, or he mar-ries someone who has the same nationalitybut who lives in the receiving country, or hereturns to his country temporarily in order tomarry someone with his nationality. All three


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possibilities could give rise to quite differentlegal approaches.

– A sponsored family avoids this dichotomy, asultimately this is a purely financial matter.

Depending on how the law and regulations dealwith these various situations, the economic impactwill always vary, particularly as far as access to the

labour market and social protection are concerned.Consideration might also be given to how muchaccount is taken of the status of the family in thecountry of origin, as this would result in a moreaccurate picture of the status of legally constitutedpolygamous families in countries of origin.

Notes

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NOTES

1. This part was written by Mrs Nicole Guimezanes, Pro-fessor at the Faculty of Law of Paris-Saint-Maur, Uni-versité de Paris XII. This study is based on certainlaws and on replies to a questionnaire sent tonational representatives.

2. Art. 9.: 1. Parties shall ensure that a child shall not beseparated from his or her parents against his or herwill… 2. Parties shall respect the right of the child whois separated from one or both parents to maintainpersonal relations and direct contact with both parentson a regular basis.

3. O. de Schutter, Le droit au regroupement familial aucroisement des ordres juridiques européens, Rev. dr.des étrangers, 1996, p. 531.

4. The Constitutional Council has acknowledged that theright to have a normal family life is incorporated intothe fundamental constitutional freedoms and rightsaccorded to all who live in the country and enjoy theprotection of the provisions of public order: Discus-sion No. 93-325 DC, 13 August 1993: OJ of 18 August1993; JCP 1993, Ed. G III, 66372.

5. The amendments made to the “Migration Regula-tions” in 1999 restructured and simplified the visacategories for family members.

6. US Court of Appeals, 9th Circuit, 1982, 673 F.2d 1036.

7. Law No. 99-944, 15 November 1999, published in theJournal Officiel of 16 November 1999.

8. In the Netherlands, the relevant legislation is atAr t i c l e 4 7 o f t h e D e cr e e on f o r e i g ne r s o f19 September 1966, and Article 24 of the Prescriptionon foreigners of 22 September 1966.

9. This limitation on the reunion of polygamous familiesis expressly covered in Germany (Article 17 of the Lawof 1990, Administrative Court of Lower Saxony 6 July1992, InfAuslIR 1992); Belgium (Council of State 9 July1986, Rev, dr. étr 1986, No. 40, p. 114); Canada, Spain(Article 54.6 of the Implementation Regulation of theLaw of 1985 on foreigners – this legislation states thata residence permit may only be issued to onespouse); France (Article 30 of the Ordinance of2 November 1945); Italy, the Netherlands, Switzerlandand the Czech Republic (where foreigners may onlybe joined by one spouse, although the problem hasnot really arisen yet in practice).

10. Council of State, 11 July 1980.

11. This ban was backed up by a dual sanction: on theone hand, a polygamous husband who brings morethan one wife into the country will have his residence

permit withdrawn whether it is a temporary authorisa-tion or a resident’s card; on the other hand, the resi-dent’s permit will be refused, or even withdrawn, if ithas been issued to the second wife. Only resident’spermits issued after the 1993 Act came into force maybe withdrawn. The Prefect has a linked competence inthis matter as long as the conditions legally associ-ated with the withdrawal are met. However, attentionshould also be drawn to an exception in that Algeriansare not covered by the 1945 Ordinance, but by theFranco-Algerian Accord of 27 December 1968. TheMarseille Administrative Tribunal determined thatthe ban on polygamy did not only apply to them:28 March 1997, Mr. Drizi, No. 95-6277.

12. Article 10.4 of the law of 15 December 1980. Council ofState, 20 October 1989 and 24 November 1989.

13. Article 12bis of the Law of 15 December 1980, asincorporated by the Law of August 1993.

14. Requesting a residence permit when the marriage isone of convenience is an offence punishable by up toa year’s imprisonment or a fine.

15. Council of State 16 June 1995. It has been decidedthat, where family reunion has been authorised forthe benefit of a foreigner residing in France, the aim isto make it possible for the couple to live together.However, if they cease to live together between thepoint at which the spouse enters the country and thedate when the government decides on the request fora residence permit, the conditions for family reunionare no longer met on that date.

16. S.H. Legomsky, Immigration and Refugee Law and Policy,Foundation Press 1997, p. 146.

17. That is why there is an exception in France that isen sh ri ne d i n t he F ran co- Al ger ia n Accor d o f27 December 1968, as amended on 22 December1985; this relates to children under the age of 18whose applicant has legal responsibility arising out ofa decision handed down by an Algerian court. It is setout in a judgement (Circular of 14 March 1986)sanctioning a child’s legal adoption (“kafala”).

18. This convention covers Cyprus, Iceland, Malta,Norway and Turkey in addition to members of theEuropean Union.

19. Under the terms of an agreement between Belgiumand Turkey relating to the jobs of Turkish workers inBelgium, Turkish workers qualify for the right to haveelderly dependants join them (Council of State29 November 1991).

trends in international migration - oecdtemporary workers are nor-mally denied this option, although...

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