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• Section A General questions
• Section B Questions on specific provisions
• Section C Final questions
• Section D Table on transposition

• K.Kr_ma, Eiropas Kopienu Tiesas spriedums migracijas politika: Eiropas Kopienas kompetence iegist apprises [The Ruling of the European Court of Justice on Migration: European Community Competence is Getting Shape] case note on Case C-540/03, monthly legal journal Likums un Tiesibas, September 2006, Vol. 8, No. 9 (85) pp. 282-288.

• Definition of family members is more liberal in case of Latvian citizen, non-citizen or permanent resident than in case of third country national residing on basis of temporary residence permit. According to point 1 of paragraph 1 of Article 23 of Immigration Law temporary residence permit, which does not exceed 6 months during year, can bee granted to those relatives of Latvian citizen, non-citizen, permanent residence holder who are relatives of third degree in direct line or to relatives of third degree in side-line as well as to brother in law until third degree. According to paragraph 4 of Article 23 only spouses, minor children or persons under custody or guardianship can apply for residence permit in other cases.
• Spouses of Latvian citizen and non-citizen are protected against expulsion to a greater degree than third country nationals. In accordance with Article 37 of Immigration Law they cannot be expelled automatically when they have been convicted for crime leading to imprisonment for two or more years, depending on type of residence permit. Expulsion of spouses of Latvian citizens and non-citizens can only take place if they constitute threat to national or public security interests.
• There are certain differences in relation to length of residence permits available to spouses. Article 23 of Immigration Law provides that certain groups of sponsors can apply for residence permit for longer period than one year (scientists, businessman). According to paragraph 4 of Article 23 family members can apply for residence permit of equal duration as sponsors. In turn Article 25 provides that spouses of Latvian citizens or non-citizens when applying for residence permit for the first time can ask residence permit for one year. It is only when the second application is submitted that they can get residence permit for four years.

Apart from Immigration Law right to family reunification can be derived from:

1. Constitution which in Article 96 states that everyone has the right to respect of his/her private life. Article 110 proclaims that State protects and supports marriage-union between men and women, family, rights of parents and child. State especially supports disabled children, children left without support of parents or victims of violence.
2. Law on the Protection of the Rights of the Child which in Article 5 provides that not only rights of the child but also family shall be protected within the framework of the Law.

1. child's life, health or development are seriously threatened because of lack of care or social environment;
2. child has seriously threatened his/her life or development by using alcohol, narcotic or toxic means;
3. child has committed a crime.

Apart from that paragraph 6 of Article 33 of Immigration Law provides for possibility for officials to conduct interview with a foreigner, sponsor, to require additional information and documents which confirm the purpose and aim of the residence as well as validity of the information submitted.

Thus, the fee to be paid is within the range of 25 LVL-195 LVL (36 EUR-279 EUR). There are special fees set in cases if applicant applies for renewal of residence permit or if residence permit is lost. There are also a number of exceptions from fees provided in the Regulations, for instance, when it is in accordance with international agreements, parity or equality principle with third State or as a matter of State interest.

1. possess residence permit (Section 2);
2. possess valid visa or are not required visa and if sponsor falls under category of persons listed under Section 4, i.e., he/she is teacher, scientist, project consultant for Latvia, coach of Latvian team, sportsmen, student, parent of Latvian citizen and non-citizen, minor child (Section 6);
3. do not need visa if sponsor falls under category of persons listed under Section 5, i.e., he is individual businessman, founder of an undertaking, self-employed person, expert in atomic energy, holds specific positions in commercial entity (Section 6).

1. In legal relationships, which concern a child, rights and interests of the child is a priority.
2. All actions which concern child irrespective whether those are carried out by state, local or social organisations or other individuals and legal persons, as well as courts and other law enforcement institutions, the priority is to ensure rights and interests of the child.

Immigration Law provides for 25 grounds on basis of which foreigner can be refused residence permit. Residence permit is refused on grounds of public health in accordance with paragraph 1 of Article 34 of Immigration Law in cases when foreigner has illness which is threatening public security and health except in cases if Ministry of Health confirms that foreigner arrives to treat respective illness in Latvia. In case if foreigner is already residing in Latvia he/she has to submit necessary documents that he/she used every possibility to treat the illness. Residence can also be refused in cases when, for instance, foreigner has been included in the Blacklist; has been convicted in Latvia or in other State for crime which allows imprisonment for three years; has entered foreign military service; has no genuine link with State of residence and he is constituting risk of illegal immigration; is under guardianship or custody of person which is denied right to enter in Latvia.

According to Article 35 of Immigration Law there are 21 grounds for annulment of residence permit. Similar to provisions on refusal of residence permit there are no general clauses on threat to public policy or public security. The enumeration is very specific and linked to different conditions for acquisition of residence permit. For instance, one of possibilities to withdraw residence permit is if the person got it by fraud or has established permanent residence outside Latvia. Several provisions are, however, more directly linked with public policy and security considerations. For instance, point 4 of paragraph 1 refers to possibility of annulment of residence permit in case if foreigner has been convicted for crime in Latvia or elsewhere if punishment envisaged is imprisonment for at least two years. Residence permit will also be annulled in case if foreigner assisted other persons to enter Latvia illegally or provided shelter to illegal residents. According to paragraph 2 of Article 35 in cases when residence permit is annulled for sponsor, the residence permits of spouses, minor children and adopted persons are also annulled if their residence is linked with residence of sponsor.

Part VIII of the Immigration Law is dealing with grounds and procedures for including person on the Blacklist. Article 61 states that decision to include person on the list can be made by Minister of Interior, Foreign Minister, Head of Consular department, Consul, State Border Guard or official of OCMA. Each of them is taking decision in specific cases. For instance, Minister of Interior can include person on the list if foreigner is taking part in anti-constitutional or criminal organization, constitutes threat to public security or policy or can disturb work of law enforcement institutions in investigation of crime and alike. Point 6 of paragraph 1 of Article 61 leaves the list of grounds open by stating that entry and residence in Latvia can be denied if there are any other grounds for competent institutions to consider a person as threat to Latvia.

Paragraph 4 of Article 61 sets specific list of grounds in cases when decision is made by an official of OCMA. For instance, OCMA includes person on the list when visa or residence permit is refused or withdrawn, he/she assisted others to enter Latvia illegally, he/she breached rules of entry and residence, his/her expulsion is part of punishment for crime. Article 63 provides for different durations in relation to inclusion on Blacklist which can be (1) for up to three years, (2) from three to five years or (3) for indefinite duration. According to OCMA there are constant exceptions made from Immigration Law in order to provide residence permit to family members. However, if there are threats to public security exceptions are applied strictly. In case if there are threats refusal of residence permit is automatic because interests of society prevail. There are no instructions because practice has developed over years and there is no internal need for instructions for OCMA.

There are specific provisions of the Directive which are not transposed in the law and thus depend on the discretion of OCMA. First, provision of paragraph 3 of Article 6 is not explicitly transposed. Third country nationals have to have necessary resources to reside in Latvia. In case of illness or disability this might not always be the case. Second, the relevant provisions of Immigration Law in relation to criminal record are formulated strictly (point 4 of paragraph 1 of Article 35). This does not seem adequate to provision of paragraph 2 of Article 6 of Directive. OCMA can rely on Administrative Procedure Law when taking decisions and pay due regard to individual circumstances. However, it would have been correct to state specific criteria in the Law. Third, Article 17 of the Directive is not transposed in the Immigration Law. While it is correct that OCMA and Administrative Courts when dealing with cases of expulsion refer to relevant principles elaborated mostly by the ECHR this does not seem sufficient for correct transposition of the Directive.

Therefore, the regime applicable to EU citizens and their family members is more liberal than in case of third country nationals.

In case if person applies for residence permit according to Section 11 he/she should prove that salary or income is equal to:

average monthly salary if foreigner is requesting residence permit for any other reason that is related to employment not mentioned above;
• average subsistence minimum, as established by Statistical Bureau annually in all other cases (120 LVL or 171 EUR for October 2006).

1. Family reunification can be requested in accordance with the Law if alternative status has been granted because person in his/her citizenship State or being stateless is facing death penalty, corporal punishment, torture, or other inhuman or degrading treatment or humiliating punishment.
2. Family reunification can be requested in cases under Article 35 paragraph 2 after two years of residence in Latvia if sponsor needed protection because of external or internal threats as a result of armed conflicts and he/she could not return to State of citizenship or if this person is stateless - to his/her previous country of residence.

Transposition of paragraph 3 of Article 15 of the Directive is unclear. Generally the requirements are strict even in cases if sponsor would have been granted permanent residence or he/she would be Latvian citizen or non-citizen. According to paragraph 2 of Article 26 of the Immigration Law in cases of divorce before spouse has been granted permanent residence, temporary residence permit is withdrawn. Therefore, divorced spouse cannot reside in Latvia. Similar consequences are envisaged in Article 28 in cases of death of sponsor who is permanent residence holder. In those cases if spouse is residing in Latvia on basis of temporary residence permit he/she will not qualify for new residence permit and existing permit will not be registered. Only if there are minor children who are Latvian citizens or Latvian non-citizens spouses can apply for permanent residence permit.

However, in exceptional circumstances possible recourse can be made to paragraph 3 of Article 23 Immigration Law. The respective provision provides that in cases not envisaged by Immigration Law temporary residence permit can be granted by Minister of Interior if it is required by norms of international law, interests of Latvia or humanitarian considerations. Rights of unmarried partners are not provided in national law because Latvia does not recognise rights of unregistered partners to enter and reside in Latvia.

According to Section 63 of Regulations on Residence Permits OCMA checks the documents submitted for residence permit, conducts interviews and verifies data on applicant. No further details on procedures to be followed by OCMA appear in Regulations.

The cirteria to determine marriage of convenience have been set by the Supreme Court Senate in Isahanov case. The case concerned married couple - Latvian citizen Ms. Rupeika and Russian citizen Mr. Isahanov- who lived together for five years. He was issued temporary residence permit twice. However, permanent residence permit was refused on basis of opinion of the OCMA that marriage is not genuine. The case was dealt by the Supreme Court Senate which had to review decision of the court of lower instance. In view of lower instance court there has been interference with applicants' private life and residence permit shall be issued.

Senate referred to the ECHR practice which confirmed that in certain cases decisions in immigration sector might affect private and family life of individuals. The Court also noted that right to private and family life can be restricted if based on economic welfare, public order, security considerations if they are proportionate to legitimate aim to be pursued. The Court has mentioned a number of other sources available apart from the ECHR. For instance, EU Resolution of 4 December 1997 on measures in relation to fictitious marriages (resolutions nr. 97/C 382/01) was referred to. The Court agreed with the OCMA that marriage was not genuine because the applicant gave birth to a child whose father was brother of Mr. Isahanov while Mr.Isahanov himself was staying with his ex-wife. The Court declined the argument that there was un-proportional interference with applicants private life. The Court concluded that the case shall be considered anew and the following facts shall be established:

1. does family life exists (not only marriage in formal sense);
2. if family life does not exist, does another kind of personal, economic or social link exists which would allow to qualify refusal of permanent residence as not proportional.

According to Article 40 sponsor or foreigner who does not need invitation letter to apply for residence permit, has a right to challenge decision on refusal to issue residence permit or withdrawal of residence permit to Head of OCMA within 30 days after decision has entered into force. In case if decision of Head of OCMA on refusal to issue residence permit on withdrawal of permit is negative it can be further challenged in the court. This, however, does not give a right for foreigner to reside in Latvia if she/he has been included in the Blacklist. Foreigner can remain in Latvia if he/she has been refused temporary or permanent residence permit as spouse or minor children of Latvian citizen, non-citizen or foreigner with permanent residence permit or minor children of their spouses, as well as former Latvian citizen or non-citizen.

In accordance with Article 42 of Immigration Law foreigner can challenge expulsion order and prohibition to enter within seven days after decision became effective. During review foreigners can reside in Latvia. Decision of Head of OCMA can be further challenged in Court. Appeal in Court does not stop execution of expulsion decision.

According to Article 3 of the Law on Legal Aid ensured by State (Official Gazette 01.04.2005) assistance should be provided to Latvian citizen, non-citizen, stateless person, EU citizen residing in Latvia, third country national who has permanent residence permit, individual entitled to assistance in accordance with international treaty, asylum seeker, refugee or an individual with alternative status. It is only in case if third country national would fall within one of these categories and qualify as a person with low-income as provided in deriving Cabinet of Ministers Regulations, that s/he could apply for legal aid.

Directive marks a beginning of new approach to family reunification, i.e., it treats reunification as human right rather than immigration right. This has been advocated by legal doctrine for quite some time. This is even more evident after ECJ ruling in Case C-540/03 when the Court explicitly stated that States have to transpose and apply Directive by taking into account human rights (paragraph 105).

However, Directive has a number of weaknesses. Although Directive recognises the right to family reunification in principle, this right is subject to many conditions and requirements which limit the group of people eligible to claim reunification. For instance, Article 3, paragraph 1 can be mentioned as an example, Article 8 paragraph 2 as well as many references to integration measures and conditions. Notwithstanding the fact that the ECJ in Case C-540/03 found no violation of general principles of law by Article 4 (1) of the Directive, the current text raises doubts as to compatibility with Articles 1 and 10 of the Convention on the Rights of the Child. The Court did not refer to any scientific data which confirms that respective age is crucial in the development of the child.

The question arises, whether this requirement runs against ECHR. There are two possibilities to advance this argument either on basis of Articles 8 and 14 read together, or Article 1 of Protocol 12. Although age of person is not indicated in the latter provision, according to Explanatory Memorandum discrimination on basis of age is prohibited. In relation to Protocol 12 it should be noted that only four EU Member States have ratified it but seven have not even signed it.

The most problematic is the transposition of Articles in relation to expulsion and transposition of principles or criteria to be considered in those cases. Immigration Law would have to be amended to include at least an Article on general principles to be taken into account when deciding on cases of family reunification. Moreover, informative note shall be included in other relevant laws which have to be re-considered by other ministries under their respective competencies.

• correct transposition
• no transposition
• violation of the Directive
• unclear