Papers by Domitilla D'Erme
The purpose of this dissertation is to analyze the European protection of family, deriving from t... more The purpose of this dissertation is to analyze the European protection of family, deriving from the recognition of the right to family reunification, its evolution in the relevant case-law and the achievements in this field. On the basis of family reunification, it has been possible to lay the foundation for the protection of the family as well as for the safeguard of the best interest of the child.
Family is one of the most important pillars of culture and society, that may be one of the reasons that justifies the recognition and the protection granted by several European and International legal instruments.
As known, the fundamental relevance for the life of the individual has been affirmed since 1948 in the Universal Declaration of Human Rights in Article 16.3, according to which “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” as well as in the Convention on the Rights of the Child, who defines the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”
Such right has been reaffirmed in the following years through various instruments –that is the reason why we will emphasize that fundamental rights which are strictly linked to it are granted a “multilevel” protection- but the two leading provisions that will be scrutinized in the first chapter are contained in the EU Charter of Fundamental Rights at Article 7 as well as in the European Convention on Human Rights at Article 8.
It has to be emphasized that this discipline has been built up throughout the years, due to the fact that, initially, the European Community was born for improving the Internal Market and, hence, for economic reasons.
Gradually –in the light of the need for workers to move from one Member State to another and with the creation of the European citizenship- also the person and the rights to which everyone is entitled started to be taken into account and the concept of the protection of the family began to make headway.
A crucial role is constantly played by the two Judicial Bodies that, pursuant to their respective prerogatives, have ensured a judicial protection of the aforementioned family rights at European level: the European Court of Justice and the European Court of Human Rights.
Thanks to their judgments, it has been possible to lay the groundwork for the adoption of a common framework on such a sensitive issue, which is represented by the enactment of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, that amended Regulation (EEC) N. 1612/68 and repealed the previous Directives on this matter, as well as by Council Directive 2003/86 on family reunification.
This latter represents the first instrument adopted by the Council after the amendment to the TEU brought by the 1997 Amsterdam Treaty in the field of asylum and immigration and it sets out the conditions for being granted the right to family reunification for third country nationals, who legally reside in a Member State.
The analysis will mainly revolve around the children, because the safeguard of family life is even more important when there are children involved, who are more in need of care, support and protection by their parents, due to their age and development.
But why is family reunification so important? In the words of the Directive 2003/86 on family reunification, “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 ”
However, EU competence in this field is limited and Member States prefer to retain their powers in such a sensitive matter, basing their need on Article 4.2 of the Treaty on European Union, which states that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.” Thus, it will be described how to deal with this matter by balancing EU competence with the Member States’ sovereignty.
Furthermore in the second chapter, through the judgments on which we will focus on, it will be showed the evolution made by the two judicial Bodies –the European Court of Justice and the European Court of Human Rights- in the field of family and, consequently, in family reunification; in fact, starting from 1980s, it will be analyzed the first Strasbourg Case regarding expulsion that can be considered as the first awareness by the Court of a non compliance with Article 8 of the European Convention on Human Rights.
In addition, it will be showed how the Courts reasoned in deciding cases concerning long-term immigrants convicted of criminal offences and on how to balance their conduct with the right to respect for private and family life, by applying the so-called Boultif Criteria which is a sort of test that judges have to take into consideration in delivering their judgments, concerning aspects such as the nature and seriousness of the offence committed by the applicant as well as the applicant’s family situation.
Besides this assessment, it must be borne in mind that the derogations that are expressly allowed in those circumstances concern public policy, public security and public health. This means that at all times the State must strike a fair balance between the competing interests of the individual and the community as a whole.
It should be underlined that a major step forward in the recognition of the best interest of the child has been represented by four leading judgments of the Court of Justice , which prioritized the ties that children had with EU territory instead of considering the fact that their parents were no longer entitled to remain in the host Member State.
Thus-from these judgments onward- the question that has begun to arise was whether provisions of Directive 2003/86 were lawful and in compliance with fundamental rights, as well as if the discretion left to Member States had to be narrowed or not.
Instead, the third chapter has been assigned the function of describing the Italian Legislation on this topic, by virtue of the fact that Italy preceded the adoption of the Directive on family reunification with the enactment of Turco-Napolitano and Bossi-Fini laws and was, therefore, considered as a model for Europe. Moreover, through the analysis of the decisions held by Italian Courts, we will see whether Italy could be still considered as a model for Europe, as well as its implementation of the Directive into the domestic legal order.
Finally, the fourth chapter will dwell on the proposals raised by the European Commission to the stakeholders for a reform of Directive 2003/86. In fact, as abovementioned, it has been called into question the discretion left to the Member States on the implementation of the Directive and it has been remarked the urgency for a uniform set of rules throughout the EU territory, due to the fact that nowadays family reunification has been one of the main reasons for immigration into the EU and there is therefore the need of managing such flux of immigrants in a manner consistent with the protection of fundamental rights, notably regarding the respect for family life and the principle of the best interests of the child.
Uploads
Papers by Domitilla D'Erme
Family is one of the most important pillars of culture and society, that may be one of the reasons that justifies the recognition and the protection granted by several European and International legal instruments.
As known, the fundamental relevance for the life of the individual has been affirmed since 1948 in the Universal Declaration of Human Rights in Article 16.3, according to which “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” as well as in the Convention on the Rights of the Child, who defines the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”
Such right has been reaffirmed in the following years through various instruments –that is the reason why we will emphasize that fundamental rights which are strictly linked to it are granted a “multilevel” protection- but the two leading provisions that will be scrutinized in the first chapter are contained in the EU Charter of Fundamental Rights at Article 7 as well as in the European Convention on Human Rights at Article 8.
It has to be emphasized that this discipline has been built up throughout the years, due to the fact that, initially, the European Community was born for improving the Internal Market and, hence, for economic reasons.
Gradually –in the light of the need for workers to move from one Member State to another and with the creation of the European citizenship- also the person and the rights to which everyone is entitled started to be taken into account and the concept of the protection of the family began to make headway.
A crucial role is constantly played by the two Judicial Bodies that, pursuant to their respective prerogatives, have ensured a judicial protection of the aforementioned family rights at European level: the European Court of Justice and the European Court of Human Rights.
Thanks to their judgments, it has been possible to lay the groundwork for the adoption of a common framework on such a sensitive issue, which is represented by the enactment of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, that amended Regulation (EEC) N. 1612/68 and repealed the previous Directives on this matter, as well as by Council Directive 2003/86 on family reunification.
This latter represents the first instrument adopted by the Council after the amendment to the TEU brought by the 1997 Amsterdam Treaty in the field of asylum and immigration and it sets out the conditions for being granted the right to family reunification for third country nationals, who legally reside in a Member State.
The analysis will mainly revolve around the children, because the safeguard of family life is even more important when there are children involved, who are more in need of care, support and protection by their parents, due to their age and development.
But why is family reunification so important? In the words of the Directive 2003/86 on family reunification, “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 ”
However, EU competence in this field is limited and Member States prefer to retain their powers in such a sensitive matter, basing their need on Article 4.2 of the Treaty on European Union, which states that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.” Thus, it will be described how to deal with this matter by balancing EU competence with the Member States’ sovereignty.
Furthermore in the second chapter, through the judgments on which we will focus on, it will be showed the evolution made by the two judicial Bodies –the European Court of Justice and the European Court of Human Rights- in the field of family and, consequently, in family reunification; in fact, starting from 1980s, it will be analyzed the first Strasbourg Case regarding expulsion that can be considered as the first awareness by the Court of a non compliance with Article 8 of the European Convention on Human Rights.
In addition, it will be showed how the Courts reasoned in deciding cases concerning long-term immigrants convicted of criminal offences and on how to balance their conduct with the right to respect for private and family life, by applying the so-called Boultif Criteria which is a sort of test that judges have to take into consideration in delivering their judgments, concerning aspects such as the nature and seriousness of the offence committed by the applicant as well as the applicant’s family situation.
Besides this assessment, it must be borne in mind that the derogations that are expressly allowed in those circumstances concern public policy, public security and public health. This means that at all times the State must strike a fair balance between the competing interests of the individual and the community as a whole.
It should be underlined that a major step forward in the recognition of the best interest of the child has been represented by four leading judgments of the Court of Justice , which prioritized the ties that children had with EU territory instead of considering the fact that their parents were no longer entitled to remain in the host Member State.
Thus-from these judgments onward- the question that has begun to arise was whether provisions of Directive 2003/86 were lawful and in compliance with fundamental rights, as well as if the discretion left to Member States had to be narrowed or not.
Instead, the third chapter has been assigned the function of describing the Italian Legislation on this topic, by virtue of the fact that Italy preceded the adoption of the Directive on family reunification with the enactment of Turco-Napolitano and Bossi-Fini laws and was, therefore, considered as a model for Europe. Moreover, through the analysis of the decisions held by Italian Courts, we will see whether Italy could be still considered as a model for Europe, as well as its implementation of the Directive into the domestic legal order.
Finally, the fourth chapter will dwell on the proposals raised by the European Commission to the stakeholders for a reform of Directive 2003/86. In fact, as abovementioned, it has been called into question the discretion left to the Member States on the implementation of the Directive and it has been remarked the urgency for a uniform set of rules throughout the EU territory, due to the fact that nowadays family reunification has been one of the main reasons for immigration into the EU and there is therefore the need of managing such flux of immigrants in a manner consistent with the protection of fundamental rights, notably regarding the respect for family life and the principle of the best interests of the child.
Family is one of the most important pillars of culture and society, that may be one of the reasons that justifies the recognition and the protection granted by several European and International legal instruments.
As known, the fundamental relevance for the life of the individual has been affirmed since 1948 in the Universal Declaration of Human Rights in Article 16.3, according to which “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” as well as in the Convention on the Rights of the Child, who defines the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”
Such right has been reaffirmed in the following years through various instruments –that is the reason why we will emphasize that fundamental rights which are strictly linked to it are granted a “multilevel” protection- but the two leading provisions that will be scrutinized in the first chapter are contained in the EU Charter of Fundamental Rights at Article 7 as well as in the European Convention on Human Rights at Article 8.
It has to be emphasized that this discipline has been built up throughout the years, due to the fact that, initially, the European Community was born for improving the Internal Market and, hence, for economic reasons.
Gradually –in the light of the need for workers to move from one Member State to another and with the creation of the European citizenship- also the person and the rights to which everyone is entitled started to be taken into account and the concept of the protection of the family began to make headway.
A crucial role is constantly played by the two Judicial Bodies that, pursuant to their respective prerogatives, have ensured a judicial protection of the aforementioned family rights at European level: the European Court of Justice and the European Court of Human Rights.
Thanks to their judgments, it has been possible to lay the groundwork for the adoption of a common framework on such a sensitive issue, which is represented by the enactment of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, that amended Regulation (EEC) N. 1612/68 and repealed the previous Directives on this matter, as well as by Council Directive 2003/86 on family reunification.
This latter represents the first instrument adopted by the Council after the amendment to the TEU brought by the 1997 Amsterdam Treaty in the field of asylum and immigration and it sets out the conditions for being granted the right to family reunification for third country nationals, who legally reside in a Member State.
The analysis will mainly revolve around the children, because the safeguard of family life is even more important when there are children involved, who are more in need of care, support and protection by their parents, due to their age and development.
But why is family reunification so important? In the words of the Directive 2003/86 on family reunification, “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 ”
However, EU competence in this field is limited and Member States prefer to retain their powers in such a sensitive matter, basing their need on Article 4.2 of the Treaty on European Union, which states that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.” Thus, it will be described how to deal with this matter by balancing EU competence with the Member States’ sovereignty.
Furthermore in the second chapter, through the judgments on which we will focus on, it will be showed the evolution made by the two judicial Bodies –the European Court of Justice and the European Court of Human Rights- in the field of family and, consequently, in family reunification; in fact, starting from 1980s, it will be analyzed the first Strasbourg Case regarding expulsion that can be considered as the first awareness by the Court of a non compliance with Article 8 of the European Convention on Human Rights.
In addition, it will be showed how the Courts reasoned in deciding cases concerning long-term immigrants convicted of criminal offences and on how to balance their conduct with the right to respect for private and family life, by applying the so-called Boultif Criteria which is a sort of test that judges have to take into consideration in delivering their judgments, concerning aspects such as the nature and seriousness of the offence committed by the applicant as well as the applicant’s family situation.
Besides this assessment, it must be borne in mind that the derogations that are expressly allowed in those circumstances concern public policy, public security and public health. This means that at all times the State must strike a fair balance between the competing interests of the individual and the community as a whole.
It should be underlined that a major step forward in the recognition of the best interest of the child has been represented by four leading judgments of the Court of Justice , which prioritized the ties that children had with EU territory instead of considering the fact that their parents were no longer entitled to remain in the host Member State.
Thus-from these judgments onward- the question that has begun to arise was whether provisions of Directive 2003/86 were lawful and in compliance with fundamental rights, as well as if the discretion left to Member States had to be narrowed or not.
Instead, the third chapter has been assigned the function of describing the Italian Legislation on this topic, by virtue of the fact that Italy preceded the adoption of the Directive on family reunification with the enactment of Turco-Napolitano and Bossi-Fini laws and was, therefore, considered as a model for Europe. Moreover, through the analysis of the decisions held by Italian Courts, we will see whether Italy could be still considered as a model for Europe, as well as its implementation of the Directive into the domestic legal order.
Finally, the fourth chapter will dwell on the proposals raised by the European Commission to the stakeholders for a reform of Directive 2003/86. In fact, as abovementioned, it has been called into question the discretion left to the Member States on the implementation of the Directive and it has been remarked the urgency for a uniform set of rules throughout the EU territory, due to the fact that nowadays family reunification has been one of the main reasons for immigration into the EU and there is therefore the need of managing such flux of immigrants in a manner consistent with the protection of fundamental rights, notably regarding the respect for family life and the principle of the best interests of the child.