The right to family reunification is only addressed in two of the directives under discussion here. These are the Blue Card and the Intra-Corporate Transfer Directives, which grant family reunification with derogations from Directive 2003/86/EC on the right to family reunification in several important respects. First, it shall not depend on the holder of an EU Blue Card or intra-corporate transferee having the prospect of obtaining permanent residence or having a minimum period of residence.23 Second,
integration requirements may not be applied until after family reunification
19 See for example, Committee on Economic, Social and Cultural Rights, General
Comment No. 20, Non-discrimination in economic, social and cultural rights (2009), para. 30; see also Human Rights Committee, General Comment No. 15, The Position of Aliens under the Covenant (1986), para. 2.
20 ECtHR, Gaygusuz v Austria (No. 17371/90), 16 September 1996.
21 ECtHR, Niedzwiecki v Germany (No. 58453/00), 25 October 2005.
22 See for example, Groenendijk (2012), p. 135; and Guild and Peers (2006), p. 112.
EQUAL TREATMENT RIGHTS IN EU LAW ON LABOUR MIGRATION 57
has been granted.24 Third, the time limit given for granting the permits is
shorter, limited to 90 days in the Intra-Corporate Transfer Directive and 6 months in the Blue Card Directive.25 Additionally, in the case of the family
members of EU Blue Card holders, no time limit shall be applied for their access to the labour market (Art. 15(6) Blue Card Directive); likewise, the Intra-Corporate Transfer Directive provides for the access of family members to the labour market but without a time limit (Art. 19(6)). The rationale for the derogation in both cases is that it is “considered necessary to set out an attractive scheme” for these groups of workers and that this approach “follows a different logic from the Family Reunification Directive, which is a tool to foster integration of third-country nationals who could reasonably become permanent residents”.26 The Single Permit Directive is
silent on family reunification – there is no reference to it in the directive and the preamble of the Seasonal Workers Directive states that it does not provide for family reunification.27
This approach of employing the right to family reunification as a policy tool to attract highly skilled migrants could be found to be discriminatory. It bears a resemblance to the UK’s approach of offering students and workers the right to family reunification as part of actively seeking to attract them, while denying it to refugees, which it did not actively want to attract. In Hodi
and Abdi v the United Kingdom, the ECtHR found that this policy violated Art.
14 in conjunction with Art. 8, while there was no reasonable justification found for the preferential treatment28 of granting family reunification to
students and workers and not to refugees.
7.7
Conclusions
In EU law on labour migration, the right to equal treatment with nationals is granted to third-country nationals to a different degree, depending on the economic and labour market objectives of the EU with respect to each group of migrants.
24 See Art. 15(3) Blue Card Directive and Art. 19(3) Intra-Corporate Transfer Directive.
25 See Art. 15(4) Blue Card Directive and Art. 19(4) Intra-Corporate Transfer Directive.
26 See European Commission, COM(2007) 637, op. cit., 11.
27 See Directive 2014/36/EU, op. cit., Recital 46.
28 ECtHR, Hode and Abdi v The United Kingdom (No. 22341/09), 6 November 2012, para.
58 BJARNEY FRIDRIKSDOTTIR
This fundamental human rights principle is used as a policy tool in a way that results in the grant of preferential treatment. EU law on labour migration contravenes the principle of equal treatment based on nationality and administrative status as set forth in international and European human rights law and in international labour law, by dividing migrants into types and granting them the right to equal treatment based on their different administrative statuses. In comparative terms, the level of discrimination between the different groups of third-country nationals and nationals of the Member State where they reside and work, increases the less qualified and less economically desirable a group of migrants is considered to be for the competitiveness of the EU economy and the future demography of the EU.
Through the EU’s sectorial approach and by not adhering to international and European standards on the prohibition of discrimination based on nationality, EU Member States have adopted legislative instruments that differentiate between groups of migrants who are classified according to a hierarchical system that institutionalises discrimination, based on nationality and ‘status’, against third-country nationals compared with nationals of the Member State where they reside and work. Moreover, through this approach the EU Member States are violating their human rights obligations at the international and European levels.
References
Groenendijk, K. (2012), “Are third-country nationals protected by the Union law prohibition of discrimination on grounds of nationality?”, in K. Barwig and R. Dobbelstein (eds), Den Fremden akzeptieren: Festschrift für Gisbert
Brinkmann, Baden-Baden: Nomos.
Guild, E. and S. Peers (2006), “Out of the Ghetto? The Personal Scope of EU Law”, in S. Peers and N. Rogers (eds), EU Immigration and Asylum Law Text
and Commentary, Leiden and Boston: Martinus Nijhoff Publishers.
International Labour Organization (ILO) (2006), Multilateral Framework on Labour
Migration: Non-binding principles and guidelines for a rights-based approach to labour migration, Geneva, January.
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