Ju2011/111/EMA 29 February 2012 Ministry of Justice Sweden Immigration and Integration Unit Green Paper on Family reunification Directorate General Home Affairs European Commission B-1049 Brussels Green Paper on the right to family reunification of third-country nationals living in European Union (Directive 2003/86/EC) Replies from the Swedish government Introductory remarks Challenges connected to family reunification are in large parts the same in all Member States. However, the general conditions and starting points of the Member States differ. Directive 2003/86/EC on the right to family reunification (hereinafter the Directive ) is a result of several compromises and might not be considered as a product of perfection. As a result of compromises, the Directive includes several optional provisions, leading to a rather low level of harmonisation. However, the Swedish Government is of the opinion that the Directive best be left the way it is, since it is difficult to predict the outcome of a reviewing process, which might result in stricter provisions being introduced. Replies to the Commission s questions - Scope of application - WHO CAN QUALIFY AS A SPONSOR FOR THE PURPOSE OF THE DIRECTIVE? Q1 Postal address Telephone E-mail: registrator@justice.ministry.se SE-103 33 Stockholm +46 8 405 10 00 SWEDEN Visitors' address Fax Telex Rosenbad 4 +46 8 20 27 34 178 20 PREMIER S
Are these criteria (reasonable prospect for the right of permanent residence at the time of application as regulated in Article 3 and a waiting period until reunification can actually take place as regulated in Article 8) the correct approach and the best way to qualify the sponsors? In Sweden the sponsor has to have a residence permit valid for at least one year and reasonable prospects of obtaining permanent residence permit. There is no requirement of minimum period of lawful residence. It can be noted that as a main rule, Swedish residence permits granted are permanent. 2 - ELIGIBLE FAMILY MEMBERS Q2 Is it legitimate to have a minimum age for the spouse which differs from the age of majority in a Member State? Are there other ways of preventing forced marriages within the context of family reunification and if yes, which? In Sweden the minimum age for the spouse is the same as the age of majority, i.e. 18 years. Forced marriages are, obviously, a severe problem that Member States have to deal with. One particular difficulty is that the forced party cannot be expected to come forward, other than in very few cases. It can be noted that if a marriage has been contracted abroad and under force, then the marriage will not be recognized by Swedish authorities. Consequently, such a marriage cannot constitute a basis for family reunification. Also to be noted is that the Swedish government has initiated an inquiry that will look into the question of forced marriages and child marriages and come forward with proposals in order to reinforce the protection against such marriages. Do you have clear evidence of the problem of forced marriages? If yes how big is this problem (statistics) and is it related to the rules on family reunification (to fix a different minimum age than the age of majority)? There is clear evidence, but only in very few cases. The Swedish government assigned the Migration Board to keep track of the number of forced marriages coming to the Migration
Board s attention during a certain period. From 1 September 2010 to 31 August 2011, eight such cases were encountered. Also, and as mentioned above, information regarding forced marriages is undoubtedly far from always disclosed to the Migration Board since the exposed party probably fears repercussions. Q3 Do you see an interest in maintaining those standstill clauses which are not used by Member States, such as the one concerning children older than 15? Sweden has not implemented these optional clauses. Q4 Are the rules on eligible family members adequate and broad enough to take into account the different definitions of family existing other than that of the nuclear family? Swedish family law recognizes same sex marriages and the Swedish Alien s Act does not discriminate against the right to family reunification in these cases. The Swedish Alien s Act has a provision according to which residence permit may be granted to parents of the sponsor and parents of the sponsor s spouse. 3 - INTEGRATION MEASURES Q5 Do these measures efficiently serve the purpose of integration? How can this be assessed in practice? Which integration measures are most effective in that respect? Would you consider it useful to further define these measures at EU level? Would you recommend pre-entry measures? If so, how can safeguards be introduced in order to ensure that they do not de facto lead to undue barriers for family reunification (such as disproportionate fees or requirements) and take into account individual abilities such as age, illiteracy, disability, educational level? Sweden does not require third-country nationals to comply with integration measures.
4 - WAITING PERIOD IN RELATION TO RECEPTION CAPACITY Q6 In view of its application, is it necessary and justified to keep such a derogation in the Directive to provide for a three year waiting period as from the submission of the application? Sweden has not implemented this optional clause. - Entry and residence of family members Q7 Should specific rules foresee the situation when the remaining validity of the sponsor's residence permit is less than one year, but to be renewed? It might lead to undesirable results if the family member would receive a residence permit with duration beyond that of the sponsor s permit. Even though the sponsor s permit is to be renewed, there may pass quite some time before the sponsor s permit is up for renewal. Also, relevant circumstances may change during that period of time which might affect the outcome of the renewal. - Asylum related questions - EXCLUSION OF SUBSIDIARY PROTECTION Q8 Should the family reunification of third country nationals who are beneficiaries of subsidiary protection be subject to the rules of the Family reunification Directive? In Sweden, beneficiaries of subsidiary protection are already subject to the rules of the Directive. Should beneficiaries of subsidiary protection benefit from the more favourable rules of the Family reunification Directive which exempt refugees from meeting certain requirements (accommodation, sickness insurance, stable and regular resources)? According to the Alien s Act, beneficiaries of subsidiary protection already benefit from the more favourable rules that exempt refugees from meeting these requirements.
5 - OTHER ASYLUM RELATED QUESTIONS Q9 Should Member States continue to have the possibility to limit the application of the more favourable provisions of the Directive to refugees whose family relationships predate their entry to the territory of a Member State? Sweden has not implemented this optional clause. Should family reunification be ensured for wider categories of family members who are dependent on the refugees, if so to which degree? The Swedish Alien s Act grants residence permit to a close relative of the sponsor if he or she has been a member of the same household as the sponsor and there is a special relationship of dependence between the relatives, that already existed in the country of origin. This provision is applicable no matter on what grounds the sponsor has been granted residence permit. Should refugees continue to be required to provide evidence that they fulfil the requirements regarding accommodation, sickness insurance and resources if the application for family reunification is not submitted within a period of three months after granting the refugee status? Sweden has not implemented these optional clauses. - Fraud, abuse, procedural issues - INTERVIEWS AND INVESTIGATIONS Q10 Do you have clear evidence of problems of fraud? How big is the problem (statistics)? Do you think rules on interviews and investigations, including DNA testing, can be instrumental to solve them? Would you consider it useful to regulate more specifically these interviews or investigations at EU level? If so, which type of rules would you consider? From time to time, applications are being denied on grounds of fraud. There are no statistics as to indicate how common the problem might be.
6 - MARRIAGES OF CONVENIENCE Q11 Do you have clear evidence of problems of marriages of convenience? Do you have statistics of such marriages (if detected)? Are they related to the rules of the Directive? Could the provisions in the Directive for checks and inspections be more effectively implemented, and if so, how? The problem of marriages of convenience is known, and has been known since before the Directive entered into force, but there are no statistics available. Naturally, information regarding marriages of convenience in specific cases only rarely reaches the Migrations Board and the problem is hard to tackle. When handling cases, the Migration Board does look at the Council Resolution of 4 December 1997 on measures to be adopted on the combating of marriages of convenience (97/C 382/01). - FEES Q12 Should administrative fees payable in the procedure be regulated? If so, should it be in a form of safeguards or should more precise indications be given? The Swedish government does not reject the thought of more harmonized fees for applications, residence permits etc. - LENGTH OF PROCEDURE - DEADLINE FOR THE ADMINISTRATIVE DECISION Q13 Is the administrative deadline laid down by the Directive for examination of the application justified? The deadline is justified but it lies in everybody s interest to keep the time for case-handling as short as possible. The Migration Board is constantly working to reduce handling time while at the same time providing greater legal security.
7 - HORIZONTAL CLAUSES Q14 How could the application of these horizontal clauses be facilitated and ensured in practice? The horizontal clauses in Articles 5(5) and 17 have corresponding provisions in the Swedish Aliens Act. It can be noted that the Migration Board has a method where the consequences for children are analysed when reaching an actual decision. Especially within the asylum procedure, methods and tools have been developed specifically for children.