Family reunification

A. Ebejer writes:

I am married to a Russian woman who gave up her Russian passport in exchange for Maltese citizenship. We now have two young children and we would like my wife's parents to come to live in Malta. What does EU law state about the status of parents and grandparents in such a case? We currently have to go through a lot of red tape just to extend their visa.

My view is that, in this kind of situation, it is within the discretion of the Maltese authorities to decide on the granting of an entry and residence permit to the Russian parents of the reader's wife. The EU does not come into it.

There are two EU laws that are connected to this situation but which, to my mind, do not apply in this case. By elimination, this case is not covered by EU law and, therefore, it is up to national authorities, not to the EU, to deal with it.

Let me briefly explain the two EU laws for the benefit of readers who may need to rely on them.

The first is an EU directive on the right to family reunification (Directive 2003/86). This law lays down the conditions for the exercise of the right to family reunification by third country nationals who are residing lawfully in the territory of an EU country.

Under this law, EU countries are obliged to authorise the entry and residence in their territory of the minor children of the non-EU nationals who are residing lawfully in their territory. This is required to enable family reunification and would typically be available to non-EU nationals who have been legally resident in an EU country for a period of about two years.

It must be recalled that non-EU nationals who are legally resident in an EU country for a continuous period of five years become entitled to what is known as a long-term residence status, that is, they would be able to live in that country indefinitely and even work there.

The EU law on family reunification also refers to other relatives, namely (a) the adult (as against minor) unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health and (b) first-degree relatives in the direct ascending line (that is, parents) of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin. It must be noted, however, that in this case, EU countries have an option and not an obligation to authorise entry and residence. Moreover, EU countries may also reject applications for entry and residence of family members on grounds of public policy, public security or public health.

The law also makes provision for certain conditions which may have to be satisfied before the application is accepted, such as accommodation requirements and a requirement that the non-EU national has resided lawfully in the member state's territory for a certain period of time. As such, this law is not applicable to the reader's case because, having taken Maltese citizenship, his wife is not a non-EU national.

The second law is EU Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states.

This law gives a number of rights to EU citizens when they move to another EU country. For instance, they have the right to be accompanied by their spouses, even if they are non-EU nationals and by their ascendants who are financially dependent on them. Thus, non-EU nationals who are married to EU citizens may benefit from certain rights when the EU citizen has exercised his or her rights of free movement and moved to another EU country. These rights generally relate to entry and residence in another EU country. But they are dependent on the EU citizen and only apply if the non-EU national is accompanying his or her "EU spouse".

However, this law applies only in cases where the EU citizens exercise their right of free movement and move to another EU country, which, again, is not the case raised by the reader.

These are the two cases where EU law embraces the notion of family reunification and the right to be joined or accompanied by family members even when family members are non-EU nationals. Consequently, other cases falling outside the remit of these laws are not covered by EU law and would be left to national authorities to determine. In other words, in cases such as those raised by the reader, the discretion lies in the hands of the national authorities and the EU can provide no remedy as it has no competence to do so.

Readers who would like to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.