Documentation Database: Questionnaires: Family Reunification Directive 2003/86/EC
Latvia

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 Latvia (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 Latvia A: Yes, the Directive has been implemented. (Immigration Law, in force since 01.05.2003 OG 169 20.11.2002, Amendments to Immigration Law, 16.06.2005, OG 101 30.06.2005, Latvian text available here ) It was done by adding informative note at the end of existing Immigration Law and Regulations No.652 on Procedure of family reunification in the Republic of Latvia of refugee's family as well as family reunification of a person which has been granted alternative status. (Adopted 30.08.2005, OG 138 01.09.2005. ) Although there is no informative reference to the Directive, other laws and regulations are relevant in this context as well. For instance, Administrative Procedure Law, Asylum Law, Law on the Protection of the Rights of Child and others will be mentioned in providing answers to the questionnaire.
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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 Latvia A: There was no public debate concerning Directive 2003/86/EC. Most of the public debate concentrated on transposition of Directive 2003/109/EC and the status of non-citizens in this regard. It might be explained by the fact that for transposition of Directive 2003/109/EC special law has been passed by the Parliament, while Directive 2003/86/EC was implemented by adding informative note on transposition in Immigration Law.
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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 Latvia A: According to officials of Office of Citizenship and Migration Affairs (OCMA), there were no amendments required because Immigration Law is even more favourable than the Directive. Indeed, at least in certain respects Immigration Law is less stringent than the Directive. Thus, it can be concluded that Directive did not bring any changes in national law or practice.
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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 Latvia A: There are no judgements yet on the Directive. OCMA officials explain that this is because no-one was refused residence on basis of the Directive so far.
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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 Latvia A: Since there were no specific amendments made in order to transpose the Directive, it can be concluded that above mentioned case had no effects on implementation so far. There are also no cases which the courts have dealt with so far in relation to the Directive. In relation to effects on legal literature, there has been a case-note published in monthly legal journal discussing the Court's ruling:
  • 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.

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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 Latvia A: The Immigration law does not explain this clause. The approach adopted in Immigration Law is liberal providing in paragraph 4 of Article 23 that family members, those being spouse, children, adopted children and persons who are dependent on sponsor, can apply for temporary residence permit for the same duration as sponsor. Paragraph 5 of Article 23 provides that third country national can re-apply for temporary residence if there are grounds to reside as prescribed by law. Therefore, family reunification is allowed even in cases when there might be no reasonable prospects to acquire permanent residence permit.
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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 Latvia A: Since Directive is transposed in Immigration Law it is difficult to see any reason for Latvian citizen or non-citizen to rely on the Directive because the Law is more stringent in relation to third country nationals. For instance, nationals are not obliged to prove minimum financial resources, accommodation and alike. Moreover, Article 1 of the Law defines that foreigner is a person which is not Latvian citizen or Latvian non-citizen. In principle dual nationality is not accepted in Latvia.
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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 Latvia A: There are few differences to be mentioned in this regard:
  • 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.

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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 Latvia A: Immigration law in paragraph 4 of Article 23 provides that there is a right to family reunification of spouses and minor children (including persons under custody and guardianship). The only exceptions are related to cases when, for instance, foreigner has entered Latvia for medical treatment, has entered monastery or his residence is required for purposes of criminal investigation and trial. According to Article 34 paragraph 1, point 22 residence permit shall be issued to family members in cases when sponsor is under pre-trial investigation or imprisoned and application is requested by spouse and there is minor child in the family.

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.
According to Article 27 of the Law on the Protection of the Rights of the Child a child can be separated from the family only if
  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.

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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 Latvia A: The Immigration law does not provide for special rules for children over 12 or 15 years of age. All children are treated equally until they reach full age. According to Law on the Protection of the Rights of the Child a child is a person below 18 years, except those persons which have been announced/declared as persons of full age or who are married before they have reached 18.
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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 Latvia 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 Latvia A: Exceptions in Article 4(1) have not been reflected in national law since the only case when integration measures are applicable is in case of application for permanent residence. The same is applicable in relation to Article 4(6) because according to Latvian legislation children are not differentiated until they have reached full age, i.e., 18 years.
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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 Latvia A: Netiher law nor practice provides for the right of unmarried partners to refer to the Directive in Latvia. Applications for residence permit on basis of family reunification of spouses explicitly require to indicate the fact of marriage. No other alternatives are possible. The same holds true for registered homosexual partnerships.
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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 Latvia A: According to Article 23, paragraph 4 of the Immigration Law and respective Application forms there are no requirements or limitations as to the age of spouse. The only requirement is to provide information that marriage has been duly registered. According to OCMA there have been no applications from married couples when spouse has been below 18 years. However, if that would happen they would refer to Latvian Civil Law which provides for minimum age to enter into marriage.
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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 Latvia A: According to Regulations No.813 on Residence Permits there are a number of documents to be submitted in addition to usually required documents. Those are enumerated in Sections 35-40. According to Section 35 foreigner has to submit documents testifying his/her relationship to relatives if he/she intends to reside with them. Section 36 provides that foreigner has to submit marriage certificate in case if he/she applies for family reunification. In case if minor child is applying for residence in Latvia he/she shall submit documents testifying family relationship as well as duly attested document signed by a parent that he/she agrees that a child is leaving to Latvia. If foreigner under custody or guardianship is applying for residence he/she shall submit court order establishing custody or guardianship.

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.


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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 Latvia A: Yes, applicant will have to pay fees. According to Cabinet of Ministers Regulations no.84 on State Duty for Review of Necessary Documents for Applying for Visa or Residence Permits and Services Related to This Review there are different fees in cases when person is applying fro temporary residence permit up to 90 days or more than 90 days as well as registration of residence permit.

Duration for ReviewDuration of residence appliedResidence until 90 daysResidence over 90 daysRegistration of residence permit
Within 30 days 10 LVL (14) 70 LVL (100) 15 LVL (21)
Within 10 working days 20 LVL (29) 120 LVL (171) 20 LVL (29)
Within 5 working days 30 LVL (43) 170 LVL (243) 25 LVL (36)
Numbers in Euros are indicated in brackets. It is set on basis of the currency exchange rate 0.7028 (20.11.2006)

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.


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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 Latvia A: Article 32 of Immigration Law provides that as a general rule documents have to be submitted at consular department outside Latvia. Paragraphs 2 and 3 of the same Article, however, provide for exceptions. According to paragraph 2 Cabinet of Ministers determines the groups of persons entitled to submit documents in OCMA. According to paragraph 3 Head of OCMA or a person authorised by him/her can allow to submit documents in OCMA if this is in compliance with international legal norms, interests of Latvia or because of humanitarian considerations. Further procedure is set in Cabinet of Ministers Regulations No. 813 on Residence Permits. Regulations identify a number of groups with very specific designations who can apply for residene permit in Latvia which are relevant for family members, i.e., persons who reside in Latvia and:
  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).
Section 6 of Regulations providing for rights of family members to apply for residence permit when in Latvia is applicable only if they apply for residence permit together with sponsor. According to Section 7.15 there are also exceptional groups of family members which do not require invitation letter. However, this exception is applicable only if family members and sponsor apply for residence permits at the same time.
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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 Latvia A: As indicated above the time limit is connected with State duty to be paid. Therefore, OCMA officials are obliged to review documents according to money received as a fee. According to Article 15 of Immigration Law decision on granting visa shall be made within 7 working days. In case if additional information is requested maximum duration for review of application is 30 days. According to Article 33 of Immigration Law decision on temporary residence permit shall be made within 30 days. Article also provides for deadlines when the documents shall be submitted by the applicant. In case of temporary residence permit documents shall be submitted not later then 30 days before the previous residence permit expires. According to paragraph 4 of Article 33 in cases when foreigner has no right to reside in Latvia during period when OCMA reviews application, Head of OCMA or official authorised by him/her can accept documents submitted if this is in accordance with interests of Latvia and is confirmed by documents or is connected with force majeure or humanitarian considerations. In these cases decision is made under expedient procedure within 10 working days.
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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 Latvia A: The best interests of the child, according to OCMA, are always taken into consideration. In those cases references are made to both UN Convention on the Rights of the Child as well as the Law on Protection of the Rights of the Child which in Article 6 provides:
  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.
There have been complicated situations in practice when the obligation to "have due regard to the best interests of minor children" had to be taken into account. For instance, in cases when right to family reunification is invoked by a parent with several convictions.
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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 Latvia A: According to paragraph 1 of Article 18 of Immigration Law entry in Latvia is refused if inter alia foreigner is included in the Blacklist (point 7) or constitutes threat to "national security or public policy and security or entry of foreigner constitutes threat to international relations" (point 8).

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.


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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 Latvia A: Free movement provisions of EU citizens are codified in Cabinet of Ministers Regulations No. 586 on Procedure according to which citizens of European Union Member States, European Economic Area Member States and Swiss Confederation and their family members enter and reside in the Republic of Latvia. The provisions in relation to public policy and pubic security clause are more general and do not provide for strict enumeration of possible grounds for expulsion or refusal to enter Latvia. Moreover, there are certain provisions which would make expulsion of EU citizens impossible while third country nationals under Immigration Law could be expelled.
More specifically, Section 12 provides that Union citizen and his or her family member can enter and reside in Latvia for 90 days if they have valid travel documents and they do not constitute threat to national security, public policy or public health. Section 13 obliges institutions to formulate their decision in writing and to provide for reasons of the decisions except if that would be against national security interests. Moreover, Section 14 sets the procedure how the Union citizen can enter Latvia even without valid travel documents.
Sections 47.5 and 48.7 provide that registration certificate, permanent residence certificate or residence permit is not issued or is withdrawn if competent institutions inform that person constitutes threat to national security, public policy or public health. In relation to health condition the Regulations repeat the provisions of the Directive 2004/38 providing that expulsion cannot take place if illness is registered three months after entry in Latvia. Section 51 contains special safeguards against expulsion for both EU citizen and family member, i.e., expulsion order can be issued only if person constitutes genuine, present and sufficiently serious threat to national security or public policy. Previous criminal convictions cannot be the reason for expulsion. The wording is in line with Directive 2004/38 and thus more beneficial for EU citizens and their family members in comparison to third country nationals who can still face expulsion because of conviction for two or more years without any further examination of personal circumstances.
It should be also noted that family members of EU citizens are treated better in relation to their right to reside irrespective of expulsion faced by EU citizen. Family members can remain in Latvia irrespective of their nationality. If they are EU citizens they can remain in Latvia on basis of Regulations No.586, while if they are third country nationals they can seek the right to remain in accordance with Immigration law. Thus, third country nationals who are family members will be subject to stricter requirements. The Regulations also transpose the requirements of the Directive 2004/38 by providing special safeguards for EU citizens and family members who have resided in Latvia for at least 10 years as well as minor children. They can be expelled only if they constitute serious threat to national security or if expulsion is in the best interests of the child. Even if expelled, EU citizens and family members can be excluded from Latvia for only 3 years. Third country nationals and their family members under Immigration law can be expelled for indefinite period.

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


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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 Latvia A: Income requirement is set by Section 25 of the Regulations No.813 on Residence Permits. It is further specified in Cabinet of Ministers Regulations No.515 on Procedure for Establishing Amount of Financial Resources Necessary for Foreigners and Fact of Possession of Financial Resources by Foreigners
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B.18 top Q: What is the level of net monthly income required (in euros)?

answer Latvia A: In case if person applies for visa according to Section 5 of the Regulations No. 515 minimum subsistence is 10 LVL (15 EUR) per day if accommodation expenses are covered and 30 LVL (45 EUR) if accommodation should be paid by foreigner. The minimum subsistence amount can be reduced because of humanitarian considerations (Section 6).

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).
In case if minor children apply for the residence permit, the required monthly income is in amount of 60% of average subsistence minimum, as established by Statistical Bureau annually.
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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 Latvia A: According to Section 25.6 of Regulations No. 813 on Residence Permits applicants shall provide information on intended place of residence in Latvia and prove that they have the right to reside there by submitting, for instance, documents testifying ownership or rent agreement. There are no other checks on suitability of housing for the family. According to Regulations documents concerning accommodation are considered as valid for three months after they have been issued to the person. However, OCMA is not applying this rule in cases when person submits documents testifying ownership or rent agreement. Three months term is applied only in cases when written confirmation by owner is submitted on permission to live in respective apartment or house. This is reasonable approach in applying respective provision of the Regulations.
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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 Latvia A: No integration measures are provided by the Immigration Law in cases when persons apply for temporary residence permit. According to paragraph 5 of Article 24 of the Immigration Law only those who apply for permanent residence permit should pass a Latvian language test. There are exceptions to this general rule, for instance, in relation to disabled persons. The level of knowledge required is set by the Cabinet of Ministers. This was done by adopting of Regulations No. 252 on the Level of Knowledge of State Language and Procedure for Testing Proficiency in State Language for Foreigners, who are eligible to apply for permanent residence permit. Section 3 of these Regulations provide that applicants for permanent residence shall pass language exam attesting that they have the lowest level of language proficiency, i.e., 1B. The requirements for achieving category 1B are explained in Section 12.2. of the Regulations No.296 on the level of knowledge of State language required for performance of professional duties and procedure for verification of command of State language.
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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 Latvia A: In case of applications for permanent residence, which is unlikely under Directive 2003/86, the residence is refused if applicant does not submit all documents, including the document on language exam. However, applicant is allowed to continue his/her residence in Latvia with temporary residence permit according to paragraph 6 of Article 24 of Immigration Law.
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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 Latvia A: Since integration requirements are applied only in cases of application for permanent residence and only to the extent that basic knowledge of Latvian is required, there is no distinction made between the concepts mentioned.
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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 Latvia A: The Immigration law does not provide for waiting period. Article 33 of the Immigration Law describing different situations and respective time given for OCMA to make a decision does not provide for the option to apply waiting period.
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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 Latvia A: According to Article 29 of Asylum Law refugee has the right to family reunification with family which resides outside Latvia. Family in this context entails spouses, minor children (including adopted), who are not married, as well as dependant children who are of full age and disabled (including adopted). Minors who are not married have the right to invite mother and father who arrive from abroad (including adoptive parents). The same approach is confirmed in Regulations No.652 on Procedure of family reunification in the Republic of Latvia of refugee's family as well as family reunification of a person which has been granted alternative status. The Regulations do not envisage situation when refugee would apply for family reunification for family which does not predate the entry of the refugee. According to Article 28 of Asylum Law refugees are entitled for subsistence payment from the State for the duration of one year. Subsistence covers residence expenses as well as expenses for learning Latvian language.
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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 Latvia A: Article 40 of Asylum law provides for the right to family reunification of persons who have been granted alternative status. There are two different procedures in this regard depending on basis on which the alternative status was acquired:
  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.
The same approach is followed in Cabinet of Ministers Regulations No.652 providing for the rights of persons with alternative status.
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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 Latvia A: According to Art 11 of Asylum Law unaccompanied minor's rights are protected in accordance with the law. Article provides that unaccompanied minor children can apply for asylum and their rights and interests will be represented by official nominated by the Custody Court. The procedure on entry and residence of unaccompanied minors is set in Regulations of the Cabinet of Ministers No. 707 procedure of entry and residence in the Republic of Latvia of minors without accompaniment by parents or guardians. In addition there are Cabinet Regulations No.652 on Procedure of family reunification in the Republic of Latvia of refugee's family as well as family reunification of a person which has been granted alternative status. The Regulations No.652 provide for situation when sponsor is the one who is applying for the right of family reunification. It is unclear whether applicant according to Section 3 could be unaccompanied minor.
According to Section 20 of Regulations No.707 if expulsion of minor threatens his/her life, health or because of humanitarian considerations officials can issue him/her temporary residence permit until the situation changes in the receiving State. There are no references to family reunification in Regulations No.707. Thus, children who arrive and apply for asylum will be subject to regulation of Article 11 of Asylum law. In case if they will be granted refugee status they will be subject to Article 29 of Asylum law (see above) providing for the right of family reunification for minors. In case if they will not qualify for refugee status or alternative status Regulations No.707 will be applicable.
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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 Latvia A: According to Article 29 of Asylum law the procedure of family reunification of refugees should be provided in the Cabinet of Ministers Regulations. Cabinet adopted Regulations No.652 on Procecdure according to which family reunification of refugees family and family of person who has been granted alternative status is taking place in the Republic of Latvia. Strict requirements in relation to documents to be submitted are included in Sections 4-6. However, Section 7 provides that in cases when family members are unable to submit marriage certificate or birth certificate and provide valid reasons Latvian diplomatic and consular representations can acccept documents for family reunification without those documents. Applications can be considered even if no documents on the fact of marriage and child-birth are submitted neither by sponsor nor family members.
The same holds true also for persons with alternative status in accordance with Section 12 of the Regulations No.652.
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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 Latvia A: Requirements for family reunification of refugees are set in Cabinet of Ministers Regulations No.652. Sections 4 and 5 which enlist the documents to be submitted refer only to identity documents and documents confirming family relationship. Therefore, no requirements concerning accomodation, sickness insurance, resources or duration of residence prior to application to family reunification are applicable. The only requirement which is applicable to refugees is connected to integration since refugees have to learn Latvian language. This requirement seems to be inserted because refugees can apply for permanent residence permit and integration conditions, i.e., basic knowledge of Latvian language, is a requirement to get the permit.
In relation to persons with alternative status, however, conditions envisaged in Article 8 of the Directive are applicable. According to paragraph 2 of Article 40 if person got the status because there is ongoing internal or external military conflict at home, family reunification can be requested after two years of residence in Latvia.
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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 Latvia A: Article 12 of the Immigration law setting out general guidelines for visas does not contain provisions on exceptional procedures for sponsor s family members. There are also no specific provisions in Regulations on Visas and Instruction on Visas. Thus, in their case no facilitation seems to be envisaged. However, according to OCMA such possibility exists in practice. Under facilitated procedure no regular checks are made on, for instance, sufficient financial means, accommodation and alike. Visa is issued as formality and is based on decision by OCMA.
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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 Latvia A: There are no provisions in the Immigration law which would differentiate family members in relation to access to employment and self-employment in comparison with sponsor. However, they would have to follow the same procedures as sponsor, i.e., they have to get work permit. In addition they would have to inform OCMA that basis of their residence have changed. In case if they apply for residence as family members Article 23 paragraph 4 of Immigration Law is applicable, while in cases of employment point 6 of paragraph 1 of Article 23 will be applicable.
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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 Latvia A: Access to employment is cumbersome and expensive from the point of view of employers. According to laws and procedures there are a number of administrative formalities and expenses. First, employer willing to employ third country national shall apply to State Employment Agency to confirm 'job invitation'. This will mean that vacancy has been announced. Only in cases if within one month after vacancy announcement no-one from Latvia or other EU Member State applies 'job invitation' from the third State will be accepted. Then employer shall proceed with paying administrative fees for invitation and residence permit (State fee LVL 70 + LVL30 for consular services for each person (143EUR)). If decision is positive another 35 LVL (50EUR) shall be paid for work permit for each month. In case of employment of EU citizens none of procedures is applicable.
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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 Latvia A: According to paragraph 2 of Article 35 of Immigration Law if temporary residence permit of sponsor is withdrawn then also residence permits of family members who reside in Latvia on basis of family reunification are withdrawn. Spouses and children can re-apply for temporary residence permit on other basis at any time, for instance, by becoming employed or self-employed in Latvia. In those cases residence becomes autonomous from spouse. Moreover, after 5 years of residence on basis of temporary residence permit they can rely on point 7, paragraph 1 of Article 24 of Immigration law which provides that foreigner who has resided in Latvia on basis of temporary residence permit for at least five years has a right to apply for permanent residence permit.

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.


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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 Latvia A: In order to obtain autonomous residence permit family members shall re-apply for residence permit on different grounds than family reunification on basis of Article 23 of Immigration law. According to Article 39 there is an obligation for sponsor and family members to inform OCMA within three days that grounds for residence have changed or to notify that any information submitted to obtain residence permit has changed. No other special provisions are included in the Law.
In general the Laws and Regulations do not provide for autonomous residence permit. If a person applies for permanent residence permit five year residence requirement will be applicable. In this context there is an exception provided in paragraph 2 of Article 24, which allows Minister of Interior to grant permanent residence in case if that corresponds to interests of State. The procedure requires that an governmental institution writes a letter to Minister of Interior and substantiates why respective person is in need of residence permit. Usually those are the cases of scientists, experts and doctors but there have been also more exceptional cases.
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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 Latvia A: According to Section 25.5 of Regulations on Residence Permits foreigner shall submit document which testifies necessary minimum of subsistence which will be available for him/her while residing in Latvia. Sponsor himself/herself should provide information that he/she has income as required by Regulations No. 515 by himself/herself in order to obtain residence permit in connection with employment. Section 13 of Regulations No. 515 on procedure for establishing amount of financial resources necessary for foreigners and fact of possession of financial resources by foreigners provides for possibilities to take into account income of family members. For instance, Section 13.3 refers to possibility to submit notification from the bank on account of another person to which sponsor has an access. Section 13.4 provides for possibilities to accept written statement by applicant or sponsor that he or she will be able to cover residence expenses and documents confirming that statement. But this will only be taken into account when application for family reunification is made. This will not affect the status of the sponsor who still would have to have necessary resources according to Latvian legislation.
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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 Latvia A: According to point 11, paragraph 1 of Article 35 of Immigration Law the residence permit of foreigner will be withdrawn in case if circumstances on basis of which the residence permit was granted have changed or no longer exist. Moreover, point 20 of paragraph 1 of Article 35 provides that residence permit is withdrawn if spouses do not have common household. Therefore, in cases if marriage no longer exists or there is no common household then residence permit can be withdrawn. No specific criteria are mentioned in national law. Taking into account the Law on Protection of the Rights of the Child it can be argued that in cases of minor children the best interests of the child will be taken into account. Even if child has been placed under special treatment outside family, the Law provides that family reunification shall take place as soon as possible. Therefore, it is doubtful that residence permit will be withdrawn or refused without examining the interests of the child.
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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 Latvia A: According to points 13 - 15 of paragraph 1 of Article 34 of Immigration Law residence permit can be refused if there are grounds to consider that foreigner has concluded fictitious marriage in order to receive residence permit or foreigner is under custody, guardianship of a person, who has been refused to enter in Latvia or adoption is fictitious and is organised in order to receive residence permit in Latvia. The marriage shall be monogamous and a couple shall have common household to receive residence permit in accordance with Article 26 paragraph 3 of Immigration Law. Otherwise in accordance with Article 34, paragraph 1, point 25 residence permit can be refused. According to point 6 of paragraph 1 of Article 35 of Immigration Law provides for possibility to withdraw residence permit in cases if there are reasonable grounds to believe that foreigner concluded fictitious marriage in order to obtain residence permit 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.

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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 Latvia A: Although Immigration Law does not contain explicit references to the need to take into account specific elements mentioned in Article 17 of the Directive, OCMA would have to take into account Administrative Procedure Law. APL in Article 2 refers to the need to ensure human rights in relations between State and individual as a general aim of the Law. It also repeats a number of important principles to be observed when institutions take decisions in relation to individuals in Article 4, for instance, principle of proportionality. Article 5 places an obligation on all institutions within administrative procedure to apply the law by taking into account protection and promotion of the rights and interests of individual.
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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 Latvia A: Article 17 of Immigration Law does not provide for the right of individual to challenge refusal to issue visa or decision on withdrawal of visa. Foreigner, however, according to Article 20, has a right to challenge the decision on refusal of the right to enter Latvia. He/she can complain to Latvian consular and diplomatic representatives on negative decision. The request is reviewed by the State Border Guard and their decision is without appeal.

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.


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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 Latvia A: No.

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.


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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 Latvia A: Strength of the Directive lies in the fact that it provides clear positive obligations of State to admit foreign nationals which is very limited in international law. There are only few exceptions currently under ECHR and HRC regime providing that preference will be given to family reunification in the country of residence rather than in State of origin. None of these, however, have developed to legally binding text, for instance, optional protocol.

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.


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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 Latvia A: In general, there have been no changes to Latvian immigration policies. Latvia has not opted for strict integration conditions in Immigration law and has not introduced differentiation on basis of age of children. Therefore, in Latvia the situation is peculiar, i.e., Immigration Law is liberal in relation to family reunification (if not strictly in law then in practice) but other laws related to language or access to work remain strict. In Latvian case the major problem is that Directive 2003/86 as well as 2003/109 are viewed as belonging solely to immigration sector. However, the issues addressed by Directives are falling within competence of not only Ministry of Interior but also Ministry of Welfare, Special Assignment Ministry of Integration and Ministry of Justice.

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.


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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 Latvia A: No documents are annexed.
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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 Latvia
Articles of the
Directive
Opinion about TranspositionExplanation
5(5)unclear OCMA officials state that they always pay due regard to the best interest of the child. There is no reason to doubt that. However, strictly speaking, the Immigration law does not refer to this requirement at least in the form of relevant principle. There is also no reference to the Law on Protection of the Rights of the Child.
10(3)(a)unclear There is a possibility to establish logical scheme of evaluation of situation of minor children. However, neither relevant laws nor Regulations refer to such situations specifically.
11correct transposition
13(1)unclear Neither Immigration law nor relevant regulations provide for facilitated procedures. However, in accordance with information from OCMA in practice facilitation is possible. Personal experience of the author confirms the information provided by OCMA.
14(1)correct transposition
15unclear This "unclear" stands rather for the Directive than national law. According to national law autonomous residence permit is available in case of permanent residence to a certain extent as well as if a person re-applies for temporary residence on different grounds as family reunification. However, there is no possibility to acquire autonomous residence in Latvia for those who reside as family members on basis of temporary residence permit.
16(1)(b)correct transposition Immigration Law transposes the relevant norm. Specific criteria are established by Supreme Court.
17no transposition/unclear Immigration Law does not contain norm transposing Article 17. However, in practice OCMA relies on the Administrative Procedure Law which requires to take into account interests of individual (Article 5).
18unclear Formulation of Article 40 of Immigration Law is unclear as to what extent family members (not sponsor) can challenge decision on refusal to issue residence permit because they, as a rule, need invitation letter from sponsor.


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