Family reunification rules in the European Union and Hungary

The EU regimes of family reunification

We should first of all state that the provisions on family reunification follow the existing differentiation between those having the right to free movement and residence and those third-country nationals not in the possession of such right by EU rules setting out many preferential provisions for the family reunification of those belonging to the first group. Consequently two EU regimes can be identified based on EU Directives, namely the so-called Free Movement Directive (2004/38/EC)[6] and the Family Reunification Directive (2003/86/EC)[7].

The Family Reunification Directive sets out provisions that contain material conditions for exercising the right to family reunification that should be determined on the basis of common criteria in order to protect the family and establish or preserve family life by providing the right to family reunification between third-country national family members. As a result, although the Directive has received several critiques that it contains too many optional provisions allowing Member States to introduce restrictions, the fact that the right to family reunification was laid down in this Directive is of great importance.

One of the principles of the Free Movement Directive is that the right of all Union citizens to move and reside freely within the territory of the Member States should be also granted to their family members, irrespective of nationality. Furthermore we can not only recognize widening the scope of those family members joining an EU citizen as for their nationality, but the Directive also allows Member States to extend the definition of family members to registered partners or even allow granting entry and residence as family members to persons not belonging to the narrow concept of family members, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

Yet the application of the Free Movement Directive necessitates a cross-border element, which is a condition that the Union citizen and their family members can only claim rights based on the Directive in case another Member State other than the one whose nationality the EU citizen holds is touched upon by the situation of the family (most commonly if the family moves to a Member State other than that where the EU citizen bears nationality). In case no such cross-border element is involved, the Free Movement Directive does not apply to that situation.

Taking into consideration the existing EU rules on family reunification we can come to the conclusion that three different regimes of provisions on family reunification can exist in the national legislation of Member States: firstly, one governing the family reunification between third-country nationals (based on the Family Reunification Directive); secondly one governing the family reunification of non-national EU citizens and their family members, be they EU citizens or third-country nationals (based on the Free Movement Directive); and thirdly, one governing the family reunification of the Member States own nationals and their third-country national family members. This third stipulation is not covered by EU law, therefore Member States have the discretion to regulate it according to their own interests, although the recent case-law of the Court of Justice of the European Union to some extent interfered with this field of rules limiting the freedom of Member States.[8]

Different forms of family reunification under Hungarian law

Family members with the right to free movement and residence

Hungarian legislation on migration provides the right of free movement not only to family members of the Union citizen but also to the third-country national family members of Hungarian nationals in order to avoid reverse discrimination and provide the same preferential rules for the family members of Hungary’s own nationals. As a result, Act I of 2007 on the entry and residence of persons having the right to free movement and residence, transposing Directive 2004/38/EC, covers EU citizens as well as third-country national family members of EU citizens and of Hungarian nationals.

Consequently the Hungarian national legislation provides equal status to third-country family members of Hungarian citizens with third-country national family members of EU citizens, thus allowing the gaining of residence and work rights under more favourable provisions, which results in a faster and more efficient integration. The Hungarian legislation therefore not only complies fully with Directive 2004/38/EC, but provides the right to free movement and residence for a wider scope of persons.

Several years after the transposition of the Free Movement Directive the European Commission is focusing on discovering and eliminating remaining obstacles that hinder the complete enjoyment of the rights deriving from EU citizenship, including free movement rights. The outcome of the investigation of the European Commission is summarized in the so-called Citizenship Reports.[9] As for Hungary’s future tasks concerning free movement, we should primarily guarantee the practical enforcement of rights linked to the freedom of movement and residence and ensure proper provision of information on such rights.

Family reunification of third-country nationals[10]

In Hungary Act II of 2007 on the admission and right of residence of third-country nationals (hereinafter referred to as Act II of 2007) and Implementing Government Decree No. 114/2007. (V. 24.) implement the Family Reunification Directive. In general, it can be stated that Hungarian legislation already contains more favourable provisions when implementing the Directive reflecting a liberal approach to family reunification on behalf of the Hungarian legislators in order to support family life and provide for the effective integration of third-country nationals.

Hungarian implementing legislation provides for the possibility of family reunification with respect to all types of purpose of stay, as national legislation does not require the verification whether the sponsor has reasonable prospects of obtaining the right of permanent residence; accordingly family reunification is possible on the basis of any kind of residence permit. Furthermore family reunification can be applied for, both in cases when the family member has already obtained a residence permit and also when it is being applied for, thus family reunification is possible without having to meet any integration requirement[11] or requiring any previous stay in the territory of Hungary from the sponsor.

As the Family Reunification Directive was the first of those dealing with legal migration, the European Commission wished to identify the way in which such provisions could be enhanced, therefore in 2011 it launched a public consultation on the right to family reunification of third-country nationals living in the EU.[12] The questions based on which the contributions of any of the stakeholders were welcomed had been discussed in a Green Paper.[13] The Summary of stakeholders responses concluded that ‘a number of organisations sounded a note of caution about reopening the Directive on the basis that in the current political climate an updated Directive would be more restrictive and would further exacerbate the disadvantaged position of migrants. Instead, many organisations also called for the publication of guidance on the Directive, and for better enforcement of existing provisions, including infringement procedures.’[14] Consequently the European Commission is presently working on certain guidelines in order to provide a harmonized and effective application of the provisions of the Family Reunification Directive.

Abuses concerning family reunification

Relations of convenience represents a current problem, not only in the European Union, but also in Hungary. Hungary has not detected any major problem of sham marriages in relation to family reunification between third-country nationals, as abuses have rather been detected in case of family reunification between Hungarian or other EEA nationals and their third-country national family members.[15]

As a result of the more favourable provisions provided for both EU citizens and their family members as well as for third-country national family members of Hungarian citizens, a substantial number of abuses of legal migration channels is also related to the attempt to acquire the right to free movement. Many abuses have occurred in a way that false family relationships were presented as real ones and on this basis third-country nationals tried to obtain the right to free movement and residence. Typical forms of such abuses are marriages of convenience, or false statement of paternity.

Such abuses can have an effect on the public security of both Hungary and the EU as third-country nationals involved in such false relationships may claim residence rights throughout the EU. Therefore in order to be able to ensure the sustainability of these preferential provisions, effective actions are required taking into account public policy, public security and national security aspects, particularly with regard to the phenomenon of abuse of legal migration channels showing international trends. The actions against family reunification-related abuses of the right of free movement therefore are of high importance.

Consequently reactions can be found both on national and international levels to fight against such abuses. The new Criminal Code[16] of Hungary has set out that anyone above 18, who - for the sole purpose of financial gain - establishes a family relationship or gives a fully effective paternal declaration in order only to create eligibility for residence documents, commits an offense and can face up to 2 years’ imprisonment as a penalty. Furthermore on a Union level the European Commission has been working on developing a Handbook on marriages of convenience, with the help of the Member States, so that practical investigations or actions in such situations can become more effective in the future.

Conclusions

Not only the concept of family has gradually been changing throughout different eras, but the legislative approach to family reunification can create further complexities. Although Hungary needs to apply two different sets of rules for foreign members of families depending on whether those family members have the right to free movement and residence or not, it can be concluded that Hungary aims at providing preferential rules for family reunification of all groups of migrants, and therefore acknowledges the role that families can make in the successful integration of migrants to the host society. This concept has also been confirmed by the recently adopted Migration Strategy[17] of Hungary.

Yet, abusing the legal channels of migration is a way for irregular migrants to find a way for regularizing their status, therefore preferential family reunification rules can lead to a rise in abuses. Nevertheless it should not prevent a country from removing obstacles of family reunification for those who lawfully enter the country with the view of finding a new home in Hungary; the problems emerging should rather be solved by thorough investigation in suspected cases and effective sanctions against those abusing the system. In order to carry out these tasks successfully, both national and Union-level actions have been carried out or are being developed.

The article has been written as part of the project Migration to the Centre supported by the by the Europe for Citizens Programme of the European Union and the International Visegrad Fund.

This article reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein.