Steve Peers
Family life is essential for everyone living in the EU, regardless of their citizenship. For non-EU citizens (third-country nationals), family reunification is governed by the EU Directive on family reunion, adopted in 2003. Recently, the European Commission released new guidance on this Directive, offering potential for its better implementation and understanding. Although the guidance addresses several issues effectively, there are points that require further improvement or clarification.
Background
A 2008 Commission report revealed numerous breaches of the Directive by Member States. However, no infringement procedures were initiated. In 2011, a Green Paper exploring potential reforms was released, but no amendments were proposed, likely due to concerns that Member States would weaken rather than strengthen family reunification protections. Consequently, this guidance document emerged, eleven years after the Directive’s adoption.
It’s important to note that this Directive applies to 25 Member States, excluding the UK, Ireland, and Denmark, which exercised their opt-out rights.
General points
The Commission appropriately references previous Court of Justice of the European Union (CJEU) rulings related to the Directive. In EP v Council, certain Directive provisions challenged by the European Parliament for human rights violations were upheld. However, the Court emphasized that exceptions within the Directive couldn’t be applied arbitrarily, only on a case-by-case basis. In Chakroun, the CJEU stated that conditions and exceptions within the Directive should be interpreted narrowly to avoid hindering its primary objective of facilitating family reunification. Concepts not referencing national law required uniform interpretation, the Directive’s interpretation must align with human rights (right to family life, enshrined in the European Convention on Human Rights and the EU Charter of Fundamental Rights), and Member States couldn’t undermine the Directive’s aims through discretionary actions.
Personal scope
The Directive’s personal scope raises several issues. Firstly, it doesn’t cover EU citizens seeking family reunification with third-country national family members, as confirmed by the CJEU in Dereci. However, the 2012 S and O judgment clarified that in “mixed nationality” families (one parent being a third-country national and the child an EU citizen), the parent could invoke the Directive. Interestingly, the guidance doesn’t address situations involving a sponsor with dual EU and third-country citizenship. Notably, in the Kahveci case, the CJEU ruled that EU/Turkey regulations regarding Turkish workers’ family members apply to dual Turkish and Member State citizens. Arguably, this principle could extend to the family reunion Directive. However, this is relevant only for dual EU/third-country citizens residing in their own Member State. This is because EU citizens residing in other Member States benefit from more favorable family reunification rules under the EU’s citizens’ Directive. EU citizens residing in their own Member State can only utilize EU family reunion rules if they previously resided in or engaged in activities within another Member State, as recently clarified by the CJEU.
Another crucial aspect is the interpretation of the “reasonable prospect” of permanent residence requirement for sponsors. While the Commission emphasizes national discretion, with certain limitations, the stronger argument posits this as a uniform concept within EU law. Additionally, the guidance should have acknowledged the potential relevance of other EU laws, particularly the EU/Turkey association rules and EU legislation on long-term residents, refugee status, researchers, and highly-skilled migrants, in determining this prospect.
Family members
The Commission rightly suggests that the concept of dependency, crucial when a child isn’t jointly shared by the sponsor and their spouse, should be determined similarly to the EU citizens’ Directive. However, it overlooks the recent Reyes judgment on this matter, which established that the reasons behind supporting a family member are irrelevant (remittances suffice to demonstrate dependency) and that the family member’s job prospects in the host state are insignificant.
Regarding the potential requirement of a minimum age (not exceeding 21) for spousal admission, the Commission rightly emphasizes a case-by-case approach. For instance, spouses could be exempt if there are no concerns about forced marriage. It also correctly argues that fulfilling the age requirement upon admission, not application, is sufficient. The CJEU’s upcoming Noorzia case judgment will provide clarity on this latter point.
Conditions for admission
The Commission indicates that Member States have significant flexibility in accepting in-country family member applications under specific circumstances. Given that the Directive establishes minimum standards (Article 3(5)), Member States should have the autonomy to accept in-country applications in all situations.
Concerning application fees, the guidance provides valuable insights on limitations imposed by the principle of proportionality, aligning with CJEU case law on the long-term residence Directive.
While suggesting an analogous interpretation of the “public health” requirement in the Directive with the citizens’ Directive, the Commission posits that public policy and security rules within the latter are merely contextual. Arguably, these rules should also apply analogously, as the drafters of the family reunion Directive opted for terminology mirroring the citizens’ Directive.
The guidance offers valuable points on accommodation requirements. Importantly, demonstrating the ability to meet this requirement upon family members’ admission, rather than at the time of application, should suffice. It would be disproportionate to mandate individuals to secure family-sized accommodation months or even two years before their family’s arrival.
This leads to the integration requirement. The legitimacy of language requirements is being examined in the pending Dogan case, which also raises questions about whether the standstill clause in the EU/Turkey association agreement prevents implementing such new requirements. More broadly, the Commission argues convincingly that any integration requirements must be proportionate and applied on a case-by-case basis, considering individual circumstances and limited female access to education in certain developing countries. A recent case referred to the CJEU will shed further light on this issue (see Annex below; thanks to Jeremy Bierbach for this information).
The Commission correctly notes that the maximum two-year waiting period must encompass any “legal stay” of the sponsor, even before fulfilling the Directive’s requirements for family reunion. It also offers sound guidance regarding residence continuity.
Refugees
The discussion on specific rules for refugees unfortunately suggests that these rules can be disregarded if the refugee has “special links” with a third country or didn’t apply within three months. In reality, only the rules waiving conditions in Article 7 are subject to these potential exceptions.
However, the Commission correctly highlights the high threshold for demonstrating a refugee’s “special links” with a third country and the burden of proof placed upon the Member State invoking this rule. It also emphasizes the need for Member States mandating family reunification applications to consider the unique challenges faced by refugees.
Legal challenges
The Commission emphasizes that, considering Article 47 of the EU Charter, legal challenges to family reunion decisions must cover all decisions made under the Directive, provide access to a court, and address all factual and legal aspects, including a review of the decision’s merits.
Conclusions
The Commission’s guidance is largely positive, despite the aforementioned critiques. However, its release is quite delayed. Hopefully, it will prove valuable to national courts and administrations and that the Commission will readily initiate infringement proceedings to support its interpretation of these crucial rules safeguarding the right to family life for third-country nationals.
Barnard & Peers: Chapter 26
Annex – new pending case on integration measures: translation and notes by Jeremy Bierbach
Preliminary reference from the Council of State of 1 April 2013, cases 201211916/1/V2 and 201300404/1/V2, K. and A. vs. Minister van Buitenlandse Zaken:
1.a Can “integration conditions,” as per Article 7(2) of Directive 2003/86/EC, be interpreted such that Member State authorities can demand that family members of a third-country national demonstrate language proficiency (level A1 of the Common European Framework of Reference for languages) and basic knowledge of the Member State’s society before granting entry and residence permits?
1.b When answering the above, is it significant that, considering the proportionality test outlined in the European Commission’s 2011 Green Paper on family reunification rights, national regulations imposing this condition would only reject entry and residence permit applications (except when the family member proves enduring inability to take the integration exam due to psychological or physical disabilities) if a unique combination of individual circumstances demonstrates the family member’s lasting inability to fulfill the integration conditions?
- Does Directive 2003/86/EC, specifically Article 7(2), prohibit charging €350 per integration exam attempt and a one-time €110 fee for study materials?
Case details: K., an Azerbaijani national, sought a preliminary visa from the Dutch embassy in Ankara to apply for a residence permit to join her husband (nationality unspecified). She provided a medical statement citing diabetes, hypertension, coronary disease, hypercholesteremia, and morbid obesity, claiming these conditions prevented her from taking the Dutch consular integration exam. A., a Nigerian national, applied for the same visa type at the Dutch embassy in Abuja. She presented medical documentation indicating a psychological disorder necessitating medication. In both cases, the Dutch immigration authority (IND), acting on behalf of the Minister of Foreign Affairs, rejected the disabilities as grounds for exemption from the consular integration exam, asserting that the exam doesn’t contravene the Directive.