Almost three years ago, on 25 July 2008, the European Court of Justice ruling on the Metock case engendered reverse discrimination in those Member States where national legislation on family reunification is stricter than what provided by European law, namely by directive 2004/38. Therefore, in such Member States, EU nationals exercising their right to free movement have more favourable provisions on family reunification than nationals of the host Member State, thus provoking what is called “reverse discrimination”
The Metock case included four cases: Mr Metock, a national of Cameroon, who arrived in Ireland and married Ms Ngo Ikeng, a national of Cameroon who had acquired UK nationality; Mr Ikogho, third-country national, who arrived in Ireland and married a UK national; Mr Chinedu, a Nigerian national, who arrived in Ireland and married Ms Babucke, a German national; Mr Igboanusi, a Nigerian national, who arrived in Ireland and married Ms Batkowska, a Polish national, and was eventually deported because of irregular residence. Family reunification was denied to all applicants who hence brought proceeding against that decision arguing that Irish legislation was not compatible with Directive 2004/38.
The European Court of Justice ruled that these cases were matter of EU law since the applicants concerned had exercised their right to free movement. Moreover, the Court stated that the directive applies also to family members of a Union citizen who are irregularly residing and that it does not provide for the possibility of the host Member State to ask for documents to demonstrate any prior lawful residence in another Member State. Furthermore, it makes no difference, according to the European Court of Justice, whether nationals of non-member countries who are family members of a Union citizen have entered the host Member State before or after becoming family members of that Union citizen.
Until some weeks ago Belgium was amongst the European countries where there is no reverse discrimination since Belgian legislation would provide the same conditions than European law. Since the 26th of May though, reverse discrimination would be a problem also for Belgian citizens who wants to marry a third-country national. Indeed, Belgian Lower House approved a family reunion Bill which will tighten up conditions and make Belgians subject to the same requirements of family reunion as third-country nationals. With the new family reunification Bill the following conditions have been introduced: ascendants will be excluded; the sponsoring family member must earn a minimum of 120% of the legal minimum wage (although this condition will not apply to sponsors who want to be joined by minor children); the probation period during which the truthfulness of the marriage can be verified, and the residence permit possibly withdrawn if the marriage is suspected to one of convenience, extended from two to three years; applicants must apply from abroad so it will not longer be possible for applicants who are irregularly residing in Belgium.
As reported by Flanders News, Jozef De Witte, the head of Belgium’s Anti-Racist Centre, “has warned that Belgians face discrimination as a result of the stricter rules on family reunifications that are being introduced”. He also referred to the situation in the Netherlands were too stricter rules were introduced causing problems elsewhere: “Today there are Dutch people who move to Belgium for a while in order to marry their partner and be together, something they can no longer do in the Netherlands. They come to Belgium temporarily and then later return home. This will not be stopped under the new rules. We will merely create new flows of Belgians who travel to France, the Netherlands and Germany to pursue their rights that they will no longer be able to exercise in Belgium”.Mauro Striano