Sweden: Study on the implementation of the Family Reunification Directive 2003/86/EC
Type of text:
Published by: Nijmegan: Centre for Migration Law/Wolf Legal Publishers
Author: Örjan Edström
Available at: http://umu.diva-portal.org/smash/get/diva2:157395/FULLTEXT02.pdf
Short description of text
This text analyses the implementation of the Family Reunification Directive 2003/86/EC. It is formatted according to a Q&A style, with questions directed more generally to the implementation of it, including focusing on the reception of it within the political and public sphere and whether national courts have had any concerns regarding the interpretation of the Directive. Furthermore, questions are asked upon some of the provisions of the Directive and how/whether they have been implemented into national law.
Most important results
“Has the Directive been implemented in your country? If so, please add the references and the texts of relevant legislative and administrative measures and the dates they entered into force. The Directive has been implemented into Swedish law by amendments of the Aliens Act (2005:716). The Aliens Act came into force on April 30, 2006, when it replaced the former Act (1989:529). However, already before that date – on February 2 – the Government presented amendments of the coming Aliens Act implementing the Family Reunification Directive 2003/86/EC. Regarding the Directive the amendments were coming into force on May 1, 2006.” (p.2)
“Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate. There has not been almost any public debate in Sweden concerning the Directive. From the circulate for consideration by the parties concerned, there are some opinions to report. For instance, the Children’s ombudsman was positive to the proposal to implement the Directive, but pointed out that even unaccompanied minors that have been granted resident permits referring to particular distressing circumstances, should have a right to family reunification.
From a law faculty it was pointed out that the proposal meant that in Swedish law there would be three different systems for the granting of residence permits referring to family connections (for third country nationals in general, asylum seekers and EU citizens). Hence, it was argued that the regulations will be unclear and that a risk for unequal treatment and even reverse discrimination could occur.
Some critical voices raised objections against the possibility to revoke granted residence permits; the requirements for family ties were said to be too rigid, the requirements for maintenance were said not to be necessary and more. This kind of criticism – which was delivered from the left wing (the social democratic party not included) in the Riksdag – was based on the general standpoint that the EU not should interfere in these matters, at least not in the way the Directive represented.” (p.2)
“What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?
The Aliens Act has been amended stipulating that a husband or wife respectively shall be granted a residence permit referring to a family relationship (before the regulation stipulated that a husband etc. may be granted such a permit), without any examination if the marriage or cohabitant relationship is serious and stable (the Aliens Act ch. 5 § 3).
Further, an important amendment is that the former examination concerning if a marriage or cohabitant relationship with someone who is residing or have been granted a residence permit in Sweden is serious, no longer has to be made (see).
A child’s independent right to family reunification has been more explicitly expressed in the amended law. Further, there is a new regulation explicitly stipulating that a parent still staying in the country of origin must consent to the child’s application for a residence permit in Sweden (the Aliens Act ch. 5 § 17).
An application for residence permit should be rejected referring to polygamy, for instance for a married partner when the reference person already is married and is living together with that person in Sweden. A new regulation is in force stipulating that reason for a rejection (the Aliens Act ch. 5 § 17b). However, children’s’ residence permits could be granted even if the parents are in a polygamies relationship.
In Swedish law there was no particular provision stipulating that an application for a residence permit should be rejected referring to public order and security. However, referring to the Directive a new provision has been inserted saying that for members of the core family, it should be possible to reject an application if the applicant constitutes a threat to public order or security (Aliens Act ch. 5 § 17). However, in practice that is not a more restricted order.” (p.3)
“Are there already judgments of national courts applying or interpreting the Directive? If so on which issues?
In 2006 there was a case at the Supreme Migration Court (Case UM317-06, 2006-11-02) where the Court took the decision that pregnancy was an acceptable reason for a deviation from the provision (the Aliens Act ch. 5 § 18), that stipulates that an application for a residence permit must be made from abroad and, further, that the residence permit must be granted before the foreigner can enter Swedish territory. The regulation in ch. 5 § 18 primarily refers to the Directive, article 5(3).” (p.3)
*see document for Q&A concerning particular provisions of the Directive