Marriage Penalties for Bi-National Couples

Let me not to the marriage of true minds
Admit impediments. Love is not love
Which alters when it alteration finds,
Or bends with the remover to remove:
O no! it is an ever-fixed mark
That looks on tempests and is never shaken;
It is the star to every wandering bark,
Whose worth's unknown, although his height be taken.
Love's not Time's fool, though rosy lips and cheeks
Within his bending sickle's compass come:
Love alters not with his brief hours and weeks,
But bears it out even to the edge of doom.
If this be error and upon me proved,
I never writ, nor no man ever loved.

William Shakespeare, Sonnet 116

What would Shakespeare make of the growing number of impediments placed before two people from different countries who fall in love and wish to marry and settle in a country?  Bi-national couples are very common in our era of globalization and mass migration.  French students in Canada, German businessmen and women in the US, British expatriates in Thailand or Australian English teachers in Japan are very likely, during their sojourn abroad, to do something very human - to meet the man or woman of their dreams and to build a life together in one or the other country of citizenship.

Those of us who practice this rather extreme form of exogamy take our right to choose the person we wish to marry, and to live together in either country, for granted.  We shouldn't because it is not as easy as it was. More and more governments are placing conditions on or barriers to the right of bi-national spouses to be together and start families.

Family reunification immigration policies and laws exist because not only is the right to family life guaranteed by international human rights law, but because most of us have a moral compass that says that husbands and wives should be together (if they wish) and that keeping children separated from their parents is deeply deeply wrong.  If there is any commitment to families in a country than family reunification would seem to be so obviously consistent with those "family values" that politicians everywhere claim they support.

Why has family reunification has become much more controversial in recent years?  One answer is that states are responding to native citizens' demands to reduce immigration.  Since family reunification represents one of the largest flows of new immigrants in so many countries (2/3 of all legal immigration in the US)  it would be very hard, if not impossible, for governments to reduce the overall number of immigrants without looking at family reunification migrants and trying to keep them out.

That is one motivation but there are others.  To be very frank,  not all spouses are "quality foreigners" in the eyes of a state and its citizens.  Depending on the country of origin there are accusations of fraud and claims that some spouses are unlikely to assimilate or that they will become dependent on the social welfare systems of their husband's or wife's country.

For example, both the UK and Thailand have minimum income requirements that UK and Thai citizens must meet before they can apply for visas for their spouses.  In the UK the citizen-spouse must earn at least £18,600 a year and in Thailand the entire family must show an income of at least 40,000 baht per month from all sources.

Supporters of such measures point to the need to protect local social welfare programs and reading some of the headlines from Thailand, you can certainly understand the problem.  The Bangkok Post reported in 2011 that public hospitals  regularly admit foreigners (mostly Europeans) who are destitute. One hospital alone "spent 1.3 million baht treating 17 penniless foreigners. It was the third consecutive year that the hospital had logged unpaid bills." 

With that in mind income requirements may sound reasonable but is there not another way to look at the matter?  To be very blunt, are bi-national marriages only for the solidly middle and upper-middle classes?    The poor, the young just starting their careers, or the old on fixed incomes must be deprived of the human right to marry and live with the person of their choice for the greater good of society just because the bride or groom is a foreigner .  That does not seem at all reasonable to me.

But income requirements are only one strategy designed to better control or reduce marriage migration.  There are others.   France requires a language test and adherence to the "values of the Republic" before the spouse of a French man or woman can move to France. And, as I write this, the EU is contemplating a most interesting directive designed to strike fear in the hearts of all marriage migrants and their EU spouses living in Europe or abroad.

The forthcoming directive concerns spouses of EU citizens who are third-country nationals (citizens of USA, Canada, Japan, China and many other countries).  The EU wishes:

"to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State's immigration law will apply to the third country national."

What does this mean exactly?   Well, one interpretation of this would directly and adversely impact a Frenchman who marries a Canadian in Canada.  He can apply to bring his wife to France but because she was not a resident of France before they married, she would have no right to free movement with him within the European Union.  So, the couple could not move to Germany or Belgium - or, to be more precise, he could but she would have to stay in France.

It could also apply to a case where the groom or bride arrived in Germany on a tourist visa, got married to a German citizen and then applied for residency.  No prior residency means no right ever to free movement within the EU unless, of course, the foreign spouse becomes an EU citizen.

All measures to  reduce migration have unintended consequences and marriage migration is no exception. Did the nice young Frenchman I met in Japan who married his anglophone Vietnamese wife in the Kansai region check beforehand the requirements to bring her over to France once his expatriation contract expires?  I doubt it.  When you are young and in love, checking your country's immigration laws is the last thing on your mind.

Would this brilliant beautiful multi-lingual Vietnamese woman have accepted his proposal knowing that she would have to take a language test and subscribe to the values of the French Republic before she would be allowed entry into France?  Who knows?

What would both of them make of the restrictions on their freedom of movement as a couple if they return together to Europe?  I imagine they would be just as shocked as I was.

The end result of all this may very well be a refusal to return.  The Frenchman who marries a Canadian may stay in Canada, the German who marries an American may stay in the US, the British married to a Thai may stay in Thailand. Or any one of those couples could look for a third country that would be happy to receive both of them.

Countries and regions should be very careful before taking such couples to the "edge of doom". The result of these impediments may be a permanent loss of their own citizens who have very strong "family values" and place being together with their spouses and children above all other considerations.

Love, like life, will find a way.  

Happy Valentine's Day - Family Reunification in the EU

And a very Happy Valentine's Day to all of you.   It seems appropriate to use this day and this post to talk once again about family reunification policy in the EU.  

Our Franco-American family exists today because of those policies - the right of EU citizens and legal residents to bring those they love to live with them in an EU member state.  Today these rights are being challenged in some countries and have been diminished in others even though the EU Directive 2003/86/EC,  firmly lays down the EU's position: "Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty."

As I wrote in my original post last December, it used to be true that many EU states went above and beyond the minimum requirements to comply with the EU directive but in recent years a few have passed more onerous entry requirements (Denmark, for example).  Other states are taking note and considering similar actions. It is reported that both the U.K. and the Netherlands are looking closely at Danish policy. What kind of changes are being proposed? Education and income requirements, pre-entry tests (designed to measure the capacity of the person to assimilate), long waits for processing, application fees and "proof of attachment" to the host country are all possibilities.

In response to this flagrant disregard for EU policy the EU is holding a consultation.  They say they want to hear from all the stakeholders in this policy before they take action:  migrants and migrant rights organizations, family-members of EU citizens or legal residents wishing to come to the EU, member-states and even other states outside the EU. Yes, the last have an interest in this too. Countries of origin sometimes see other state's liberal family reunification policies as quite dangerous to their interests - it can diminish remittances, help migrants to integrate in the host country (not necessarily a good thing from their point of view), and reduce the likelihood that their people will one day return to the home country.

To get a good idea for the issues around this topic, have a look at the MIPEX blog and Thomas Huddleston's slides from the webinar they held late last year:

How to Respond to the EU Family Reunion Consultation - Webinar slides of 7 December 2012

View more PowerPoint from Migrant Integration Policy Index

I've heard many complaints about the EU being too bureaucratic and not responsive to the wishes and opinions of EU people.  Well, they do seem serious about getting feedback on this so I strongly urge everyone with an interest in this topic (and I think just about everyone is concerned since you never know who you might fall in love with) to use this opportunity well and wisely.  The deadline is March 1, 2012.   Contact details are here.  They accept contributions via both email and regular mail.

Family Reunification in the EU

The European Commission is holding a consultation and they would like you to join in.  The topic is a very emotional one and quite dangerous politically:  What rights should migrants have to bring their families to their host country?

Why has this topic come to the fore?  Because the EU directive on family reunification for third-country nationals is not being honored by many member-states.

The relevant legislation, passed in 2003 as Directive 2003/86/EC,  firmly lays down the EU's position: "Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty."

Of course the devil is always in the details.  As I read the directive, legal migrants have the absolute right to bring members of their nuclear family (spouse and minor children) to live with them in the host country provided that they are not a threat to public order or safety.  Member-states may, if they wish,  extend the definition of family to include "relatives in the direct ascending line, adult unmarried children, unmarried or registered partners as well as, in the event of a polygamous marriage, minor children of a further spouse and the sponsor."  However other states are not obliged to grant these people (let's call this the "extended family") the right to reside in their state if their laws contradict the laws of the original receiving state.

In times past many EU states went above and beyond these minimum requirements but in recent years a few have passed more onerous entry requirements (Denmark, for example) and other states are taking note and considering similar actions.  It is reported that both the U.K. and the Netherlands are looking closely at Danish policy.  What kind of changes are being proposed?  Education and income requirements, pre-entry tests (designed to measure the capacity of the person to assimilate), long waits for processing, application fees and "proof of attachment" to the host country are all possibilities.

As the 2011 IOM report so clearly states this is a subject on which public perceptions and reality simply do not correspond.  In a webinar on this topic with  MIPEX Policy Analyst, Thomas Huddleston (I was a participant), he reported that only 1 in 6 immigrants to France comes in under a family reunification program.  According to the European Commission this form of immigration has already fallen sharply, from 50% of all migrants in the year 2000 to about 30% today. In Europe overall, almost all those who enter any EU country this way are spouses and children.  Mostly children.

What is the EU's intent in holding this consultation?  They say they want to hear from all the stakeholders in this policy before they take action.  Migrants and migrant rights organizations, family-members of legal residents wishing to come to the EU, member-states and even other states outside the EU.  Yes, the last have an interest in this too.  Countries of origin sometimes see other state's liberal family reunification policies as quite dangerous to their interests - it can diminish remittances,  help migrants to  integrate in the host country (not necessarily a good thing from their point of view), and reduce the likelihood that their people will one day return to the home country.

To have your say before the deadline of March 1, 2012 (and I strongly urge everyone with an interest in this to reply) contact details are here.  It appears that they accept contributions via both email and regular mail.

Once the EU has all the feedback and closed the consultation, it intends to hold public hearings on this matter.  I'll be keeping an eye on it and I will keep you posted.