Documentation Database: Questionnaires: Family Reunification Directive 2003/86/EC
Czech Republic

Subject Comparative study on the implementation of the Family Reunification Directive 2003/86/EC in (25) Member States
Data from other countries Go to Questionnaire (with links to the answers of all other countries)
This Form Data by Czech Republic (26/04/2007)

Section Question Answer

A. General
A.1 top Q: Has the Directive been implemented in your country? If so, please add the references and the texts of relevant legislative and administrative measures and the dates they entered into force.

answer Czech Republic A: The Directive has been transposed by several amendments to the existing laws (Alien's Act, Asylum Act).
Transposition was done mainly by the Law No. 428/2005 Coll. (amendment to the Alien's Act, entered into force on November, 24, 2005) and the Law No. 57/2005 Coll. (amendment to the Asylum Act, entered into force on February, 2, 2005).
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A.2 top Q: Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate.

answer Czech Republic A: There was no political or public debate on this issue.
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A.3 top Q: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?

answer Czech Republic A: We can say that the changes connected to the implementation of this Directive made the national rules more liberal. The law did not mention the possibility of the family reunification explicitly before the changes and the family issue has not been stressed much in the law.
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A.4 top Q: Are there already judgments of national courts applying or interpreting the Directive? If so on which issues?

answer Czech Republic A: No.
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A.5 top Q: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects.

answer Czech Republic A: No.
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B. Questions on specific provisions
B.1 top Q: Article 3(1):
How is the clause: who has reasonable prospects of obtaining the right of permanent residence
implemented in the national law?

answer Czech Republic A: This clause is not implemented in the national law as such. The law allows the family reunification even without the neccessity of reasonable prospects of obtaining the right of permanent residence.
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B.2 top Q: Article 3(3):
Will a third country national also having the nationality of your country be able to rely on the Directive?

answer Czech Republic A: Czech legislation basically does not allow for a dual nationality (some exceptions). If a person holds a Czech nationality (citizenship), then he is treated as Czech. Even if he has dual nationality, the person would not need to rely on the Directive - he can primarily be treated as Czech and the treatment for Czech nationals is the highest.
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B.3 top Q: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences.

answer Czech Republic A:
  1. Nationals of the Czech Republic have the highest treatment as nationals.
  2. Their third country national family members of Czech nationals are entitled to the same treatment as third country national family members of EU nationals.
  1. Nationals of Czech Republic do not need visas or residence permits, work permit etc. They also can not be expulded and they simply have a different regime then any foreigner.

  2. Third country national (hereinafter the 'TCN') family members of Czech nationals and third country national family members of EU nationals have much better and safer position then any other foreigner. The law contains two types of provisions (two parts of Alien's Act) - one part is focused on EU nationals and their TCN family members (including the TCN family members of Czech nationals) and the other part focuses on TCN foreigners.
TCN family members of EU nationals can ask for temporary residence permit (Art. 7 of the Directive 2004/38, right of residence for more then three month) or permanent residence permit (Chapter IV of the Directive 2004/38, 'right of permanent residence permit'). The issue of permit (negative decision) can be reviewed by a court. The number of documents, which must be presented to the application for residence certificate/permit is lower. TCN family members of EU have equal position with the Czech citizens in the field of employment or self employment. TCN family members of Czech national can ask for permanent residence permit.

TCN family members of TCN foreigners have different position (see below).


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B.4 top Q: Article 4(1):
Has the right to family reunification of spouses and minor children been codified in national law? If so, please mention the relevant provisions of national law.

answer Czech Republic A: Transposition was done by the Law No. 428/2005 Coll. (amendment to the Alien's Act, entered into force on November, 24, 2005) and the Law No. 57/2005 Coll. (amendment to the Asylum Act, entered into force on February, 2, 2005), the laws already contained some provisions on the family reunification issues (esp. Asylum Act), which we may call pre-transposition.

1. Family reunification of spouses and minor children of foreigners (with the exemption of asylum seekers, refugees, foreigners with subsidiary protection, foreigners seeking subsidiary protection) is codified the Alien's Act (see Sec. 42a Alien's Act- long term residence permit, some relevant point can be found also in Sec. 66 - permanent residence permit and Sec. 30 - visa).

a) Alien's Act states (Sec. 42a), that the request for the long term residence permit for the purposes of the family reunification can be submitted (the state is not obliged to issue the long term residence permit, the obligation exists only in several cases,, see Sec. 42a(5) AlA - refugee issues, sponsor staying longer then 15 months and both under 20, ff) and hh) (see below)) by the:

  • aa) Sponsor's spouse,
  • bb) Minor children of the sponsor,
  • cc) Adult children of the sponsor, who are dependent on the sponsor,
  • dd) Minor children of the sponsor's spouse,
  • ee) Adult children of the sponsor's spouse, who are dependent on the sponsor,
  • ff) Minor child, who is in custody of the sponsor or his/her spouse, or has been adopted by the sponsor or his/her spouse, or the sponsor or sponsor's spouse is his/her legal guardian - if the care will be enforced on the territory of the Czech Republic.
  • gg) Parent of a minor child - recognized refugee (in case that the minor child does not have a parent, any relatives in the direct ascending line is entitled, when there is no such a relative, then the request can be submitted by a legal guardian),
  • hh) A foreigner older then 65 years (lone - meaning without spouse), which is unable to provide for his own needs on account of his state of health (in case of family reunification with a parent or a child who has a residence permit).

In the above mentioned possibilities, the sponsor can have either long term residence permit or permanent residence permit. The family member gets long term residence permit. The request must be submitted on the embassy, the Act also allows for lodging the request on territory of CR in some cases (42a(3),4 AlA).

b) Alien's Act also states a possibility to reunite with a family in case that the sponsor has a permanent residence permit and there is a minor child or a dependent child. The child can ask for the permanent residence permit (Sec. 66 AlA). The request must be submitted on the embassy (Sec. 69(1) AlA).

c) Alien's Act does not explicitly state the possibility to ask for a visa for a purpose of a family reunification explicitly. But the possibility exists. The law only states that a purpose of the visa must be shown within the application (Sec. 31 AlA). The person then gets a one year visa (according to the length of the stay of the sponsor). It mazy be arguable whether or not should this ‘visa' be analyzed under the Directive, as the length of the stay is just one year and the reasonable prospect of obtaining the right of permanent residence is a question - but it might at least have some impact./

d) Issue of a residence permit for the purposes of family reunification in case of polygamy is not possible.

2. Family reunification of spouses and minor children of refugees and foreigners with granted subsidiary protection (asylum seekers and subsidiary protection seekers do not have a right to family reunification) is codified mainly the Asylum Act (and in some parts of the Alien's Act).

a) The Asylum Act states that in a case requiring special consideration the refugee status on the basis of family reunification shall be given to the family members (see Sec. 13(1) Asylum Act). The Asylum Act recognizes as Family members (Sec. 13(2) AsA)

  • spouse of a refugee,
  • unmarried child of a refugee below 18,
  • parent of a refugee below 18,
  • an adult responsible for an unaccompanied minor (this part was implemented by the act which implemented the Family Reunification Directive to the AsA).
b) The refugee status for the spouse of the refugee will apply only in cases when the family relationship predates the recognition of the refugee status of the sponsor (Sec. 13(3) AsA). In the case of a polygamous marriage, if the refugee already has a spouse living together with him/her in the territory of the Czech Republic, asylum may not be granted for the purpose of the reunion of a family to another person who is the refugee's spouse in accordance with legal regulations of another state (Sec. 13(4) AsA, this part was implemented by the act which implemented the Family Reunification Directive to the AsA).

c) The same applies to the family reunification of the family member of the foreigners with granted subsidiary protection (Sec. 14a AsA).

d) The family reunification of refugees is mentioned also in the Alien's Act. The long term residence permit shall be given to the minor of a refugee or spouse of a refugee (if the marriage predated the entry of the territory of the Czech Republic). The permanent residence permit shall be issued to a spouse of a refugee (if the marriage predated the entry of the territory of the Czech Republic), minor of a refugee (if the minor is dependent on the refugee and do not ask for a refugee status). The law is not very consistent in this issue.


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B.5 top Q: Article 4(1) and 4(6): (children over 12 or 15 years)
Does the national law of your country provide special rules concerning the admission of children aged over 12 or 15 years?

answer Czech Republic A: No.
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B.6 top Q: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)?

answer Czech Republic A: Children over 15 are not prevented from applying for family reunification.
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B.7 top Q: Is your country barred from using the exceptions in Article 4(1) last sentence and Article 4(6) by the standstill-clauses in those two provisions?

answer Czech Republic A: -
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B.8 top Q: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification?

answer Czech Republic A: TCN unmarried partners of TCN do not have a right to family reunification.
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B.9 top Q: Article 4(5) (minimum age spouse)
Does the national law require a minimum age for the admission of spouses that is higher than 18 years? If so what is the minimum age?

answer Czech Republic A: The Czech law basically does not require the minimum age. The condition is stated only in one case: for the obligation of a state to issue of a long term residence permit for the spouses of a third country national's spouses (the request is 20 for both and the sponsor must hold the permit and reside on the territory for longer then 15 months ) (see Sec. 42a(5)a). In other cases, there is almost no obligation for a state to issue a long term residence permit - and no request of the age.
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B.10 top Q: Article 5(2) (documents and fees)
What kind of documentary evidence has to be presented with a family reunification application?

answer Czech Republic A: When applying for long term residence permit a foreigner must present following evidence (Sec. 42b(1) AlA):
  • passport,
  • a document confirming accommodation,
  • extract from a Czech judicial record (this does not apply to child younger then 15),
  • photographs,
  • document certifying family relationship,
  • approval of a parent, other legal representative or guardian with the stay of a child on the territory of the Czech Republic (if the purpose of stay is not a family reunification with this parent, other legal representative or guardian),
  • a document confirming sufficient financial resources for the stay on the territory.
  • also a judicial record from a home country and a confirmation that he does not have a grave illness must be presented upon request of the officials.
In case of request of family reunification on the basis of the reunification with a refugee, only passport, photographs and document certifying conjugal ties must be presented. This condition applies only to the requests, which were submitted within a period of 3 month after the recognition of the sponsor as a refugee. But the law does not restrict the possibility to ask for the long term residence itself, the person can ask for the residence later, but then he/she must present more documents - the same as another foreigner (Sec. 42b(2) AlA).

Documents which must be presented with the request of a permanent residence permit are almost the same. Family member of a refugee can submit the request upon more simple conditions, but he must present also a document on the accommodation (Sec.70(3) AlA).

The Asylum Act does not require any documents.


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B.11 top Q: Does the applicant have to pay any fees and, if so, what is the (total) amount of those fees?

answer Czech Republic A: Yes, 1000 CZK for adult (aprox. 35 EUR), 500 CZK for minor (younger then 15), (aprox. 17.5 EUR) (See Act on Administrative Charges, Polozka 116). (Law. No. 634/2004, on Administrative Tariffs)
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B.12 top Q: Article 5(3) (place of application)
May an application be submitted when the family members are already residing in the Member State?

answer Czech Republic A: Yes. The long term residence permit can be submitted on the territory of the Czech Republic in case that the family member already hold a long term visa or a long term residence permit for another purpose. If the family member does not hold any permit, then the application must be submit on the embassy (Sec. 42a(3),(4) AlA).
The permanent residence permit for the reason of family reunification of the child (mentioned above) must be asked on embassy (Sec. 69(1) AlA).
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B.13 top Q: Article 5(4) (length of the procedure)
Is there any time limit for the decision on the application by the administration?

answer Czech Republic A: Yes, 270 days for the request of the long term residence permit when asked at the embassy (169(2)c AlA).
Permanent residence permit must be issued within 180 days (Sec. 169(1)b AlA), visa (the relevant one) within 120 days (Sec. 170(6) AlA).
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B.14 top Q: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law?

answer Czech Republic A: The national law has used this term before because of the requirements of the Convention of the Right of a Child (Art. 3). This provision is in the Family Act (Law No. 94/1963 Coll.) - pre-transposition.
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B.15 top Q: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law?

answer Czech Republic A:
  • the long term residence permit (up to five years of stay in CR): If it is found out that the foreigner would seriously violate the public policy or endanger state security during his stay, his long term residence permit is withdraw (Sec. 46a(2)d AlA).
  • the permanent residence permit (given basicaly after more then five years of stay in CR): In case of a permanent residence permit, the serious risk of a possible serious violation of the public policy and state security is the reason for rejecting the request of the status (Sec. 75(2)e AlA).

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B.16 top Q: What are the similarities and differences compared to the definitions of the same notions in the context of free movement of EU citizens?

answer Czech Republic A: The definition of withdrawing / rejecting the status of EU citizen is similar:
  • the serious risk of a possible violation of the public policy and state security is a reason for rejection of the request of the temporary residence certificate, the violation of the public policy and state security is a reason for withdrawal or termination of the status (Sec. 87d(1)c AlA).
  • the serious risk of a possible violation of the public policy and public security is a reason for rejection of the request of the permanent residence permit (Sec. 87k(1)b AlA), the violation of the public policy and public security is a reason for withdrawal or termination of the status (Sec 87l(1)a AlA).

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B.17 top Q: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law?

answer Czech Republic A: Income requirement is specified in the provisions of the Alien's Act (see Sec. 13 and 71 AlA). The income requirement differs according to presumed length of the stay and the character of the stay (long term / permanent stay). It is derived from the living subsistence.
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B.18 top Q: What is the level of net monthly income required (in euros)?

answer Czech Republic A: Depends on the number of family members. Approx. 350 EUR for two adults and one child per month, 250 EUR for two adults per month etc.
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B.19 top Q: Is there a housing requirement in force, and if so, what is the minimum surface of the accommodation (in square meters)?

answer Czech Republic A: There is a housing requirement in the law (Alien's Act).
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B.20 top Q: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.)

answer Czech Republic A: No, there are no integration measures required.
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B.21 top Q: Are there any positive or negative sanctions (privileges, subsidies, fines, residence rights or other) attached to the integration measures?

answer Czech Republic A: No (there are no integration measures).
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B.22 top Q: Does the national law distinguish between the concepts 'integration conditions' and 'integration measures' (compare Article 4(1) last indent and 7(2))?

answer Czech Republic A: No.
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B.23 top Q: Article 8 (waiting period)
Is there any waiting period before the family reunification application can be filed?

answer Czech Republic A: No.
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B.24 top Q: Article 9(2) (privileges for refugees)
Which privileges granted by the Articles 10-12 are in the national law limited to family relationship that predate the entry of the refugees?

answer Czech Republic A: None. The refugee status for the spouse of the refugee will apply only in cases when the family relationship predates the recognition of the refugee status of the sponsor.
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B.25 top Q: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive?

answer Czech Republic A: Yes, family members of the foreigners with the subsidiary protection granted according to the provisions of the Asylum Act.
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B.26 top Q: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law?

answer Czech Republic A:
  • A parent of a refugee below the age of 18, or an adult responsible for an unaccompanied minor can be granted asylum in ‘a case requiring special consideration' (Sec. 13 AsA).
  • A long term residence permit will be granted to the parents of a child, who has been granted a refugee status (Sec. 42a(5)c AlA).
  • For a long term residence permit can also apply a parent of a minor child - recognized refugee. In case that the minor child does not have a parent, any relatives in the direct ascending line is entitled and if there is no such a relative then the request can be submitted by a legal guardian (42a(1)e AlA.

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B.27 top Q: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law?

answer Czech Republic A: There is a possibility to prove the family relationship alternatively when asking for the long term residence permit in the case that the request is submitted by the family member of the recognized refugee. The law does not contain a provision on how to prove the relationship as it only says that the proof must be credible (Sec. 42b(1)b AlA.
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B.28 top Q: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law?

answer Czech Republic A: It depends on the type of residence permit that the family member asks.
  1. If he/she ask for a refugee status according to the provisions of the Asylum Act then nothing is required.
  2. If he/she asks for a long term residence permit according to the provisions of the Alien's Act then only passport, photographs and document certifying family relationship must be presented. But this condition applies only to the requests which were submitted within a period of 3 month after the recognition of the sponsor as a refugee (42b(2) AlA). If the request is submitted after 3 month then he must present all the documents as any other foreigner - see above).
  3. If he asks for a permanent residence permit then passport, photographs, document certifying family relationship and document confirming accommodation must be presented (Sec. 70(3) AlA).

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B.29 top Q: Article 13(1) (visa facilitation)
How has the obligation to grant third country family members 'every facility for obtaining the required visas' been implemented in national law?

answer Czech Republic A: There is one procedure out of which the foreigner gets
  1. the visa to get into the Czech Republic (in case that the residence permit was asked from abroad, of course),
  2. the long term or permanent residence permit itself.
The entrance visa (‘the visa to receive the long residence permit') is granted upon the same documents that the family member had presented together with the application for the long term or permanent residence permit.

The holder of a ‘visa to receive the long residence permit' does not have the obligation to present some documents on the border control which other foreigners might be asked to present.


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B.30 top Q: Article 14 (equal treatment)
How has the right of admitted family members to 'access to employment and self-employment in the same way as the sponsor' been implemented in national law?
answer Czech Republic A:
  1. Sponsor resides on the territory of the Czech Republic on the long term residence permit. The purpose of the residence permit can b e.g. employment and then the sponsor must obtain a work permit (Sec. 89 Employment Act). Family members of this foreigner will reside on the territory of the Czech Republic on the long term residence permit for the purposes of family reunification. The family reunification is his/her purpose of the stay. If he/she would like to work, he/she must have a work permit. Then a question rises whether there can exist two purposes for the residence permit at the same time (in other words whether the residence permit can still be issued for the purpose of family reunification when there is at the same time another ‘purpose of stay'). Czech law does not mention a possibility of two purposes of the residence permit and the practise is miscellaneous. But basically they do have the same possibility as a sponsor.
  2. Sponsor resides on the territory of the Czech Republic on the permanent residence permit (permanent residence permit + this status is issued when he is a recognized refugee). He does not need a work permit (Sec. 98(a), (c) Employment Act). Family members, who reside on the territory of the Czech Republic on the long term residence permit for the purposes of family reunification when the sponsor resides on the territory on the permanent residence permit or as the recognized refugee can work upon the same condition as the sponsor, they do not need a work permit (Sec. 98(l) Employment Act).
  3. Sponsor resides on the territory of the Czech Republic on the one year visa. Family members, who reside on the territory of the Czech Republic on the visa for the purposes of family reunification when the sponsor resides on the territory on the one year visa - the pattern is the same as in the point A).
The law does not explicitly mention possibility of self employment for the family members. Every person with a permanent residence permit or status of recognized refugee can be self employed upon the same condition as a Czech person (can get the trade licence upon the same conditions). Long term residence permit can also be issued for the purpose of the self employment and then the person, who ask for this type of residence permit, needs a trade license - the trade license is given on a certain period of time (the trade license of Czech nationals is given on indefinite period) and he needs an excerpt from judicial records from the home country etc.
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B.31 top Q: Did your country make use of the exception to that equal treatment allowed under Article 14(2) of the Directive?
answer Czech Republic A: No.
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B.32 top Q: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit?
answer Czech Republic A: Autonomous residence permit - as a residence permit independent on the sponsor's residence permit - can be issued to the family member under certain circumstances:
  1. family member is a survivor of a deceased sponsor. The family member must have the long term residence permit for the purpose of family reunification issued and reside on the territory continuously for at least 2 years (as of the date of death of the sponsor). The continuous stay is not required if the survivor lost his Czech citizenship as a result of a marriage to a sponsor or the death of the sponsor was caused by work-related accident or occupational disease (Sec. 45(3) AlA). The right to submit an application expires after one year (Sec. 45(6) AlA).
  2. family member is divorced with the sponsor. The marriage must have lasted for at least five years prior to the day of the divorce out of which the family member must have at least two years reside (stay continuously) in the Czech Republic. The condition of continuous stay is not required if the foreigner lost his Czech citizenship as a result of a marriage to a sponsor (Sec. 45(4) AlA). The right to submit an application expires after one year (Sec. 45(6) AlA).
  3. the foreigner is older then 18 and had a long term residence permit granted for the purpose of family reunification. He has a right to submit an application for a long term residence permit for another purpose after five years (Sec. 45(2) AlA).
The problem which can be see here is that the right is connected to the possibility to apply for the status. It is not the right to the issue of the residence permit itself.

Permanent residence permit will be issued to any TCN foreigner after five years of continuous stay. There are provisions of the Directive 2003/109/EC (Long term residence Directive) transposed to the law and the permanent residence permit is connected to the long-term resident status to third-country nationals.


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B.33 top Q: Under what conditions can an autonomous residence permit be obtained before the period of time normally required under national law?
answer Czech Republic A: To get the above mentioned long term residence permit, a foreigner must present (Sec. 45(5) AlA):
  • passport,
  • a document confirming above mentioned conditions - death of the sponsor or divorce and fulfilment of other above mentioned conditions (conditions given by the Secs. 45(3) or 45(4),
  • a document confirming accommodation,
  • a document confirming sufficient financial resources for the stay on the territory or a work permit,
  • a document on medical insurance
  • extract from a Czech judicial record (this does not apply to child younger then 15),
  • photographs.

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B.34 top Q: Article 16(1)(a) (resources)
Is the income of family members taken into account for the calculation of the sufficient resources at the time of the renewal of the permit?
answer Czech Republic A: Yes.
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B.35 top Q: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children?
answer Czech Republic A: The Alien's Act recognizes the possibility to withdraw a residence permit or not prolong if the reasons for the granting of the status no longer exists.
The withdrawal of the residence permit is explicitly mentioned for the permanent residence permit granted to the foreigner - spouse of a refugee or for the permanent residence permit granted to the foreigner in a case requiring special consideration (Sec. 77(2) AlA).
The long term residence permit will be withdrawn if the purpose is no longer fulfilled (46a(2)I AlA).
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B.36 top Q: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)?
answer Czech Republic A: The Alien's Act recognizes the possibility to withdraw a residence permit if the marriage is a marriage of convenience. The definition of the marriage of convenience does not exist in the law and we can discuss whether the content of the term ‘marriage of convenience' mentioned in the Directive is the same as the content of the provision in the Alien's Act: ‘foreigner entered into marriage with the sole aim to obtain a residence permit'.

The long term residence permit will be withdrawn if the foreigner entered into marriage with the aim to obtain a residence permit; the status will not be withdrawn if a child was born from the marriage or a child was irrevocably adopted (46a(2)j AlA) - the best interests of the child are taken into account. The same applies to the possibility of the withdrawal of the permanent residence permit, Sec. 77(1)a AlA). The definition, checks and practices are in conformity with Art. 16(4), there were some problems regarding the adequacy of questions on the interviews which are done by Police with the spouses reported by NGOs previously, there are no such a situations now (at least not reported).


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B.37 top Q: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law?
answer Czech Republic A: It is mentioned in the sections regarding the possibility of withdrawal of visas, long term residence permits and permanent residence permits (37(2), 46(2), 77(2) (last sentence) AlA), also for rejection of application for visas, long term residence permits and permanent residence permits (56(2), 46(1), 75(2)(last sentence) AlA).
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B.38 top Q: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)?
answer Czech Republic A:
  • One year visas - no (Sec. 168 AlA). The one year visa is applied only during the first year of stay, and is followed (almost automatically) by the long term residence permit, where the possibility of a judicial review exists.
  • Long term residence permit - yes (a contrario Sec. 171 AlA), review on legality by a court (Law No. 150/2002 Coll., Civil Procedural Code.
  • Permanent residence permit - yes (a contrario Sec. 171 AlA), review on legality by a court (Law No. 150/2002 Coll., Civil Procedural Code.

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B.39 top Q: Article 18 (judicial review)
Is (publicly funded) legal aid available for an appeal against a decision to refuse fam-ily reunification or to withdraw the residence permit of a family member?
answer Czech Republic A: The answer is not that easy. Publicly funded legal aid is available under certain conditions, but only for appeals to a court, not for appeals to a superior administrative authority. A ‘means test' is done.

The possibility of publicly funded legal aid depends on a character of a proceeding. Decision on family reunification can be adopted

  1. pursuant to the provisions of the Aliens Act as a decision on a long term residence permit,
  2. pursuant to the provisions of the Aliens Act as a decision on a permanent residence permit,
  3. pursuant to the provisions of the Asylum Act (for family members of refugees).
ad a) Decisions on a long term residence permit taken pursuant to the provisions of the Aliens Act can be appealed to a superior administrative authority (no publicly legal aid available). If the superior authority gives a negative decision, then the appeal/complaint can be given to a court. Then the publicly funded legal aid is available for the proceedings before a court (under certain conditions - means test).
ad b) Decisions on a permanent residence permit taken pursuant to the provisions of the Aliens Act can be appealed to a court. Publicly funded legal aid is available under certain conditions (means test).
ad c) Decisions on a refugee status can be appealed to a court. Publicly funded legal aid is available under certain conditions (means test).

The absence of publicly funded legal aid is in a way compensated by the activity of NGOs (partly also funded by state).


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C. Final questions
C.1 top Q: What are in your view the main strengths and weaknesses of the Directive?
answer Czech Republic A: I see some weaknesses in limiting the right to family reunification of children over the age of 12, whose primary residence is not with the sponsor - the capacity for integration etc. and limiting the possibility to apply for family reunification of minor children before the age of 15 (Art. 4 (6) Directive). I would count it as an approach, which can in practice cause a limitation of the family life.
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C.2 top Q: Please add any other interesting information on the Directive or its implementation in your country that might be relevant for our study.
answer Czech Republic A: The Czech Alien's Act is very wide, and is changed very often. The complexity of the law is the reason, that it is almost impossible to orientate in it. I would very much doubt the possibilities of foreigners to understand their rights and of the Alien's Police to understand their duties. It is simply not possible to read all the amendments and therefore to know the changes of the law - and therefore to know the up to date rights and duties. So - I doubt the understanding of all rights and duties given by the Directive. But I would like to say that the family reunification rules are observed in practice.

The Czech legislation contains several laws, which deal with the issue of asylum and migration. The main laws are 1. Alien's Act (AlA), 2. Asylum Act (AsA), and 3. Temporary Protection Act.

The conditions for entry, residence and departure of all foreigners on the territory of the Czech Republic are given by the Alien's Act (Law No. 326/1999 Coll., Alien's Act, as amended). The Alien's Act is not applied to an alien who applied for protection by the Czech Republic in the form of asylum, and to refugees; their status is covered by the Asylum Act (Law No. 325/1999 Coll., Asylum Act, as amended). Temporary Protection Act is applied to those foreigners who applied for temporary protection, or has been granted temporary protection.

Alien's Act differs between EU citizens and their third country national (TCN) family members. Alien's Act distinguishes basically between visas, long term residence permits and permanent residence permits; the difference is mainly in the length of the status issued and the rights and duties which are connected to the statuses. Visas are issued for the stay which is not longer than one year, long term residence permits are issued for the stay which is longer than one year (and the purpose of the stay is the same), permanent residence permits are issued after five years of stay (with some exceptions - humanitarians reasons etc., when the length of the necesarry previous stay can be shorter or none).

Asylum Act is devoted to the asylum, refugee and subsidiary protection issues, Temporary Protection Act deals with the issue of temporary protection.

This questionnaire is focused on the Family Reunification Directive. Situation of the third country national family members of EU citizens will not be described in this questionnaire.

Relevant Laws:

  • Law No. 326/1999 Coll., Alien's Act, as amended.
  • Law No. 325/1999 Coll., Asylum Act, as amended.
  • Law No. 94/1963 Coll., Family Act, as amended.
  • Law No. 634/2004, on Administrative Tariffs, as amended.
  • Law No. 435/2004 Coll., Employment Act, as amended.
  • Law No. 150/2002 Coll., Civil Procedural Code, as amended.
  • Law No. 221/2003 Coll, Temporary Protection Act, as amended.

Terminology:

  • the long term residence permit - given to TCN for the stay up to five years of stay in CR,
  • the permanent residence permit - given to TCN basicaly after five years of stay in CR. Also given to EU nationals and their family members, conditions are in compliance with the Directive 2004/38,
  • the temporary residence permit - given to EU nationals, the status corresponds to the right of residence for more then three month, Art. 7 of the Directive 2004/38.

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C.3 top Q: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form.
answer Czech Republic A: The following documents are annexed to this questionnaire:

a) laws and regulations:


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D. Table
D.1 top Q: This table refers only to mandatory provisions of the Directive.
Please choose for each article one of the four alternative labels:
  • correct transposition
  • no transposition
  • violation of the Directive
  • unclear
If you choose the label 'violation' or 'unclear', please add a footnote with a short explanation.
answer Czech Republic A:
Articles of the
Directive
Opinion about TranspositionExplanation
5(5)correct transposition
10(3)(a) unclear
11correct transposition
13(1)correct transposition
14(1)correct transposition
15correct transposition
16(1)(b)correct transposition
17unclear
18correct transposition

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