Directive 2003/86/EC on the right to family reunification
WHAT IS THE AIM OF THE DIRECTIVE?
It aims to set out common rules of law relating to the right to family reunification. The intention is to enable family members of non-EU nationals residing lawfully on the territory of the EU to join them in the EU country in which they are residing. The objective is to protect the family unit and to facilitate the integration of nationals of non-member countries.
It does not apply to Ireland, Denmark and the United Kingdom. In addition, it does not preclude any more favourable conditions recognised by national legislation.
Non-EU nationals who hold a residence permit valid for at least one year in one of the EU countries and who have the legal option of long-term residence can apply for family reunification.
However, this directive does not apply to family members of an EU citizen, or to non-EU nationals applying for recognition of refugee status whose application has not yet given rise to a final decision or who are under a temporary form of protection.
The following are eligible for family reunification:
the sponsor’s spouse;
the minor children of the couple (i.e. unmarried children below the legal age of majority in the EU country concerned), or of one member of the couple, where he/she has custody and the children are dependent on him/her, including adopted children.
EU countries remain free to authorise, under certain conditions, family reunification of:
first-degree ascendants in the direct line (father and mother of the foreign national);
unmarried children above the age of majority;
Polygamy is not recognised; only one spouse can benefit from the right to reunification. Likewise, children of the ineligible spouses are excluded from the right to reunification unless their best interests warrant it (in accordance with the 1989 Convention on Children’s Rights).
EU countries are also permitted to require the non-EU national and his/her spouse to be of a minimum age (subject to a maximum of 21 years), before they can exercise the right to family reunification.
EU countries determine whether it is the foreign national, 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 must remain outside the EU during the procedure. The application must be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down. The application must be examined within 9 months after submission.
The person concerned 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. Furthermore, he/she may be required to abide by integration measures under national law, as well as to have resided in the EU country in question for a certain period of time (2 years maximum) before being joined by the family members.
A family member may be refused entry or residence on grounds of public policy, internal security or public health. This also applies in the case of fraud (falsification of documents, marriage of convenience, etc.). The same grounds may justify the withdrawal or non-renewal of a permit that has already been granted.
Persons whose permit is refused, withdrawn or not renewed must have the right to mount a legal challenge.
With regard to the family reunification of refugees, EU countries may not impose conditions regarding a minimum stay in the territory before being joined by their family members. Furthermore, they are exempt from fulfilling the above conditions relating to accommodation, health insurance and resources if the application for family reunification is submitted within 3 months of refugee status being given.
Rights of family members
Family members of the foreign national are entitled to a residence permit of the same duration as that of the person they have joined and, on the same terms as that person, to access to education, employment and vocational training.
After 5 years of residence (not later), the spouse or unmarried partner and any children who have reached majority are entitled to an autonomous residence permit.
The conditions relating to the granting and duration of the autonomous residence permit are established by national law. EU countries may only limit the granting of the autonomous residence permit for spouses or unmarried couples in cases of breakdown of the family relationship.
Guidance on the application of the directive
In 2014, the European Commission published guidance for EU countries on the application of the directive.
FROM WHEN DOES THE DIRECTIVE APPLY?
It has applied since 3 October 2003 and had to become law in the EU countries by 3 October 2005.
For more information, see:
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251, 3.10.2003, pp. 12-18)
Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification (COM(2014) 210 final, 3.4.2014)
Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC) (COM(2011) 735 final, 15.11.2011)
Report from the Commission to the European Parliament and the Council on the application of Directive 2003/86/EC on the right to family reunification (COM(2008) 610 final, 8.10.2008)
last update 05.06.2018