REGINE Regularisations in Europe Final Report - European ...

under EU legislation or international law may similarly become nominally illegally resident only on
more serious grounds, despite any infractions of immigration conditions.
In particular it is family members of third country nationals who enjoy a certain protection from loss
of residence status and expulsion under both the ECHR and EU legislation, with the ECHR
potentially providing much more extensive protection from expulsion than does the family
reunification directive. 21
Generally, the family reunification directive 22 provides only limited security of residence and
protection from expulsion to third country nationals who have been admitted as family members. This
reflects above all the fact that the family reunification directive is more concerned with regulating
conditions of admission of third country nationals for the purpose of family reunification than
defining the rights enjoyed by (de facto) family members already resident – on whatever terms – in a
Member State. Reflecting this, family members have to be explicitly admitted as family members to
enjoy any rights under the directive. Similarly, family members are – as a general rule – required to
submit applications for family reunification from abroad. 23 However, all Member States except
Cyprus provide for in-country applications in cases where family members already enjoy a right of
residence, however limited, i.e. essentially in cases of permit switching. 24 Indeed, the possibility to
switch to a family based permit may be considered an important safeguard to avoid the situation that
persons no longer meeting the conditions of residence on other than family grounds lose their right to
residence and become liable to be deported, or otherwise lapse into illegality. 25
In addition to procedural requirements (such as submitting an application from abroad), the right to
family reunification is conditional upon meeting housing, income and integration conditions
according to Article 7 of the Family Reunification Directive. Despite the (arguably) limited scope of
the directive, recent ECHR case law suggests that the power of states to withhold a legal status is
increasingly limited, in particular in cases where family members do not meet all, or some, of the
requirements or when de facto family members have never been admitted as family members or have
been illegally resident. 26
21 See Thym, D.(2008): ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A
Human Right to Regularize Illegal Stay?’ International and Comparative Law Quarterly, 57, 1, pp.81-112.
22 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification
23 See article 5(3) Directive 2003/86/EC. Two states (Ireland and Poland) allow for in-country applications. See
Groenendijk, K., Fernhout, R., van Dam, D., van Oers, R., Strik, T. (2007): The Family Reunification Directive
in EU Member States. The First Year of Implementation. Nijmegen: Wolf Legal Publishers, p.48f.
24 Ibid.
25 The results of an analysis of post-regularisation trajectories of immigrants in Italy on the basis of residence
permit data indicate that about 10% of women, who had been regularised on the basis of employment in the
2002 regularisation programme and still had a work related permit in 2004, had switched to a family based
permit by 2007 (1.2% in the case of males), while 11.6% of males had switched to a permit on the grounds of
self-employment. See Carfagna, S., Gabrielli, D., Sorvillo, M. P., Strozza, S. (2008): Changes of status of
immigrants in Italy: results of a record-linkage on administrative data sources. Presentation given at the
International Seminar on Longitudinal Follow-up of post-immigration patterns based on administrative data and
record-linkage, Belgian Federal Science Policy, Brussels, 23 June 2008.
26 See Chapter 6, for details.
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