New Flophouse Address:

You will find all the posts, comments, and reading lists (old and some new ones I just published) here:

Sunday, February 21, 2016

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.  


Ellen Lebelle said...

Thank you for the clear explanation. When discussing it with Paul, I used the example of an American who marries a German in Brazil; since they both speak Portuguese, they decide to move to Portugal. The German can, but the American spouse cannot.

Victoria FERAUGE said...

Thanks, Ellen. These are all possible impacts of the new directive. I am sure there are others that I am not aware of. Could they be challenged? I guarantee that they will. The article I linked to suggested court challenges might be based on the "right to a family life" or on discrimination. This court case is, I think, important to read to understand the context and what the EU courts have already said about third-country nationals and EU citizen spouses living in another EU member state. Have a look and tell me what you think:

Inaka Nezumi said...

Interesting in light of a comment made on recently:

"[...]the UK stopped allowing UK citizens to bring non-EU spouses to live with them in the UK unless they meet certain conditions, while citizens of other EU countries may do so, under EU regulations. Thus, a lot of UK-Irish dual citizens were renouncing their UK citizenship in order to continue living in the UK with their spouses.

Yes, that is completely bonkers."

Sounds like this proposed EU directive would close that "loophole."
(As would the UK leaving the EU, presumably.)

Anonymous said...

Sounds like another case of misdirected legislative zeal. Like FATCA which falls on millions of supposedly unintended victims and probably very few of the originally targeted bad guys, this law is most likely aimed at the (sometimes multiple) spouses and typically large extended families of earlier hordes of low-skilled immigrant workers, now naturalized, and their jus soli descendants who are still not always comfortably integrated. Cj

Victoria FERAUGE said...

Nezumi-san, Yes, this would really cause a problem. I'm watching the brouhaha in the UK and I see that Boris Johnson (Mr. I am going to renounce my citizenship any day now) is leading the fight to get the UK to leave the EU. Interesting enough I discovered another marriage penalty which has since been fixed but I thought it was pretty surprising. I'm re-reading Lucy Williams book Global Marriage and she says that up until 1998, non-Korean men could not become citizens in South Korea even if they were married to a Korean citizen. Foreign women however married to Korean men have long had that right. I wonder if there are other countries that do that...

@Anonymous, Yes, if you look at the Metock cases these were residents of the UK who married third-country nationals and the UK did not like that at all.

Inaka Nezumi said...

@Victoria, didn't a lot of countries used to do that, or go even further? I think I've read it was pretty common up until mid-last-century or so that a woman getting married automatically acquired her husband's citizenship, and lost her original one.

Victoria FERAUGE said...

@Nezumi-san, Absolutely!!! It was very common at once point - France, Canada and the US all did that to women in the 19th and 20th centuries. It was in part an attempt to prevent dual citizenship. One citizenship per family, they said, and no duals. :-)