Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.
Measures concerning family reunification should be adopted in conformity with the obligations to protect the family and respect family life, as enshrined in many instruments of international law. This directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union (EU).
The Tampere European Council (15 and 16 October 1999) emphasised the need to harmonise national legislation on the conditions for admission and residence of third-country nationals. It stated that the EU should ensure fair treatment of third-country nationals residing lawfully on the territory of the Member States and introduce a more vigorous integration policy.
The aim of the directive is to establish common rules of Community law relating to the right to family reunification of third-country nationals residing lawfully on the territory of the Member States. At the moment, this right is recognised only by international legal instruments, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. At national level the situation is very patchy. Family reunification protects the family and makes it easier to integrate nationals of non-member countries in the Member States. It should thus be a recognised right throughout the Union.
Third-country nationals who hold a residence permit valid for at least one year in one of the Member States and who have the genuine option of long-term residence can apply for family reunification. However, this directive does not apply to a third-country national applying for recognition of refugee status whose application has not yet given rise to a final decision or who is under a temporary form of protection, nor does it apply to the family members of a Union citizen.
This directive applies without prejudice to any more favourable conditions that may be recognised by national law.
The following are also eligible for family reunification:
- the sponsor's spouse;
- children of the couple, including adopted children, who are minors (minors meaning unmarried children below the legal age of majority in the Member State concerned).
The Member States will remain free to adopt provisions allowing for family reunification of:
- first-degree ascendants in the direct line;
- unmarried children above the age of majority;
- unmarried partners.
Polygamy is not recognised; only one wife can benefit from the right to reunification. Likewise, children of the ineligible wives are excluded from the right to reunification, unless their greater interest warrants it (pursuant to the 1989 Convention on Children's Rights).
The Member States determine whether it is the sponsor, or the family members who wish to join him/her, who is to submit the application for family reunification. Except in special cases, the family member to be reunited remains outside the EU during the procedure. The Member State will have up to six months after submission of the application to examine it. A number of supporting documents will be required.
It will be possible to refuse a family member entry and residence on grounds of public order, internal security and public health. The same reasons may be given to justify the withdrawal or non-renewal of a permit already granted.
The sponsor may be required to have accommodation that meets general safety and health standards, sickness insurance and stable resources sufficient to maintain himself/herself and the members of his/her family without recourse to the social assistance system of the Member State concerned. Furthermore, the sponsor may be required to abide by integration measures under national law, as well as to have resided in the Member State in question for a certain period of time (two years maximum) before being joined by the family members.
Particular conditions will be applied to the family reunification of refugees (namely regarding the concept of “family member”, the documents required to prove family links, conditions relating to housing, sickness insurance, stable resources, compliance with integration measures, etc.).
In addition to a residence permit of the same duration as that of the sponsor, members of his/her family will obtain access to education, employment and vocational training under the same terms. After five years of residence at the latest, the spouse or unmarried partner, as well as the children who have reached the age of majority, may be granted an autonomous residence permit.
In the event of fraud (falsification of documents, marriage of convenience, etc.), the application will be rejected. All persons whose application is rejected have the right to mount a legal challenge.
The Member States to which this directive is addressed must bring into force the laws, regulations and administrative provisions necessary to comply with it by 3 October 2005 at the latest and must inform the Commission thereof. Periodically, and for the first time not later than 3 October 2007, the Commission will present a report to the European Parliament and the Council and propose appropriate amendments where necessary.
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OJ L 251 of 3.10.2003
Report from the Commission to the European Parliament and the Council of 8 October 2008 on the application of Directive 2003/86/EC on the right to family reunification [COM(2008) 610 final – Not published in the Official Journal].
This report presents the state of play on the transposition of Directive 2003/86/EC in the Member States.
The directive has been transposed in almost all of the Member States concerned and all Member States recognise the subjective right to family reunification. However, in certain cases, the transposition or the application of the directive has been incorrect.
The manner in which Member States apply the provision on the eligibility of sponsors vary greatly. On the eligibility of family members, most Member States apply the optional clause for spouses, whereas the additional restrictions concerning children are mainly not implemented.
In order to be able to exercise the right to family reunification, most Member States require the sponsor to have appropriate accommodation, half require sickness insurance and all demand stable and regular resources. Only a few Member States demand compliance with integration measures.
In terms of procedural rules, most Member States have a specific application procedure for family reunification. Differences exist on the question of who may act as the applicant, where the application may be submitted and what accompanying documents need to be presented. All Member States have opted for the possibility of conducting interviews, as well as investigations if need be. The lengths of the administrative procedures are within the specified limits; in addition, many have taken up the option of extending this limit if necessary.
The mandatory horizontal clause on the best interest of the child is not implemented appropriately in some of the Member States. The implementation of the other horizontal clauses is also problematic as Member States do not consider applications on a case-by-case basis.
The right to redress is applied in Member States, though the material and personal scope of the judicial reviews vary. For appeals procedures, some Member States have created specialised tribunals. Furthermore, most Member States provide legal aid for applicants.
Some Member States have not implemented the provision on visa facilitation. The provisions on the duration of residence permits also pose problems. In addition, most Member States use the maximum time limits before granting autonomous residence permits to the family members. Some Member States use the optional provision of granting permits in cases of divorce or separation and widowhood. Access to the labour market is restricted in some cases beyond the extent allowed by the directive.
Overall, the harmonisation of national legislation on family reunification remains rather limited. The Commission intends to follow-up this report to ensure correct implementation in the Member States and, in policy terms, to launch a green paper on family reunification with a view to allow for a broad stakeholder debate.
Court of Justice Judgment of 27 June 2006 on the action for annulment brought by the European Parliament against the Directive (CaseC-540/03).
The Parliament sought the annulment of certain provisions contained in the directive on the grounds that they allegedly infringed fundamental rights, in particular the right to family life and the right to non-discrimination. It felt that the directive was incompatible with such rights by allowing Member States to require:
- children aged over twelve years to pass an integration test in order to rejoin the applicant’s family;
- reunification applications for minors to be submitted only before they have reached fifteen years of age;
- the applicant to have resided in the country in question before he/she can be joined by members of his/her family;
- a waiting period of three years from the moment an application for family reunification is made to the moment family members may obtain a residence permit, if the Member States in question take into account their reception capacity.
The Court rejected these arguments on the grounds that:
- the various texts dealing with fundamental rights do not give the members of a family the subjective right to be admitted into the territory of a Member State;
- compulsory integration tests are not illegal; allowing Member States to assess whether a child meets a given integration criterion preserves a limited margin of appreciation for the governments of the Member States, similar to that given to them by European Court of Human Rights case-law;
- the directive authorises Member States to refuse reunification to children failing to apply before they turn fifteen, but in no way forbids them to consider applications from children over fifteen;
- as regards those provisions contested on the basis of the age limits of twelve and fifteen (above), these ages are the criteria used by the European Court of Human Rights; twelve and fifteen are the ages after which integration of the child can pose greater problems;
- a waiting period is required in order to ensure that family reunification will take place in favourable conditions;
- the directive requires Member States, when applying any of the contested provisions and in respect of all family reunification applications, to take into account the other conditions laid down in the directive, e.g. the best interests of minor children, the nature and solidity of the person’s family relationships, the duration of their residence in the Member State and the existence of family, cultural and social ties with their country of origin.