# EUR-Lex - 52014DC0210 - EN

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# 52014DC0210

**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/2014/0210 final */**

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1.           Introduction

The report on the implementation of the
Directive, adopted in October 2008[1]
concluded that there were a number of cross-cutting issues of incorrect
transposition or misapplication of the Directive and that its impact on
harmonisation in the field of family reunification remained limited.

In 2011, the Commission published a Green
Paper on the right to family reunification[2]
to gather opinions on how to have more effective rules at EU level and gather information
on the application of the Directive. There were 120 responses, including contributions
from 24 Member States (MSs), international organisations, social partners, NGOs
and individuals[3].
On 31 May-1 June 2012, the Commission held a public hearing in the framework of
the European Integration Forum[4].
The consensus of the public consultation was that the Directive should not be
re-opened, but that the Commission should:

ensure the full
  implementation of the existing rules
 open infringement procedures
  where necessary and
 produce guidelines on
  identified issues.

This Communication therefore provides
guidance to MSs on how to apply Directive 2003/86/EC. These guidelines reflect
the current views of the Commission and are without prejudice to the case law
of the Court of Justice of the EU (‘CJEU’) and its further development. Views
may change in future and, as a consequence, this is an evolving document and an
open-ended process.

The Directive recognises the right to
family reunification and determines the conditions for the exercise of this right.

On the one hand, the CJEU confirmed that
Article 4(1) ‘imposes precise positive obligations, with corresponding clearly
defined individual rights, on the MSs, since it requires them, in the cases
determined by the Directive, to authorise family reunification of certain
members of the sponsor’s family, without being left a margin of appreciation’[5].

On the other hand, MSs are recognised as
having a certain margin of appreciation. They may decide to extend the right to
family reunification to family members other than the spouse and minor
children. MSs may make the exercise of the right to family reunification
subject to compliance with certain requirements if the Directive allows this.
They retain a certain margin of appreciation to verify whether requirements
determined by the Directive are met and for weighing the competing interests of
the individual and the community as a whole[6],
in each factual situation.

However, since the authorisation of family
reunification is the general rule, derogations must be interpreted strictly. The
margin of appreciation which the MSs are recognised as having must not be used
in a manner that would undermine the objective of the Directive, which is to
promote family reunification, and the effectiveness thereof[7]. At the
same time, the right to family reunification is not unlimited. Beneficiaries
are obliged to obey the laws of their host country, as set out in the Directive.
In case of abuse and fraud, it is in the interests of both the community and of
genuine applicants that MSs take firm action, as provided for by the Directive.

Finally, the Directive must be interpreted
and applied in accordance with fundamental rights and, in particular, the right
to respect of private and family life[8],
the principle of non-discrimination, the rights of the child and the right to
an effective remedy, as enshrined in the European Convention of Human Rights (‘ECHR’)
and the EU Charter of Fundamental Rights (‘the Charter’).

2.           Scope
of application of the directive

This Directive applies only to
third-country national[9]
sponsors. That means any person who is not a citizen of the Union within the
meaning of Article 20(1) of the Treaty on the Functioning of the EU, who is
residing lawfully in a MS, and who applies or whose family members apply for
family reunification (‘the sponsor’), and to their third-country national
family members who join the sponsor to preserve the family unit, whether the
family relationship arose before or after the resident’s entry[10].

2.1.        The
sponsor

In accordance with Article 3(1), from the
moment a sponsor holds a residence permit valid for at least one year and has
reasonable prospects of obtaining the right to permanent residence, he/she may
submit an application for family reunification. A residence permit is defined as
any authorisation issued by the authorities of a MS allowing a third-country
national to stay legally on its territory, with the exception of:

visas;
 permits issued pending
  examination of a request for asylum, an application for a residence permit
  or an application for its extension;
 permits issued in exceptional
  circumstances with a view to an extension of an authorised stay with a
  maximum duration of one month;
 authorisations issued for a
  stay not exceeding six months by MSs not applying the provisions of
  Article 21 of the Convention implementing the Schengen Agreement[11].

The condition of having ‘reasonable
prospects of obtaining the right of permanent residence’ should be examined by MSs
on a case-by-case basis taking into account the individual circumstances, such
as the nature and type of residence permit[12],
the administrative practice, and other relevant factors related to the
sponsor’s situation. The Directive leaves a wide margin of appreciation to MSs when
considering whether there is a reasonable probability of obtaining the right of
permanent residence.

The test of reasonable prospects entails a
prognosis of the likelihood of meeting the criteria for long term residence
taking into account the regular administrative practice and the circumstances of
the case. Thus, in every individual case MSs need to assess whether, under regular
circumstances, the permit under national law may be renewed beyond the period
required for permanent residence. ‘Reasonable prospects’ does not require the
fulfilment of all the conditions needed to obtain permanent residence at the
moment of assessment, but a prognosis that they are likely to be fulfilled. Since
the type and purpose of residence permits differ substantially between MSs, it
is for MSs to determine what kind of residence permits they accept as
sufficient to consider that there are reasonable prospects.

X, an IT professional with significant experience, has a residence
permit for work purposes valid for one year in a MS. As long as X fulfils the
conditions for this residence permit, it may be renewed indefinitely, and after
five years, X will be entitled to permanent residence.

X would like to be joined by her spouse. All being well, X will be
able to continue to work in fashion, so it can be assumed that the conditions
for this type of residence permit will continue to be fulfilled and that X can
renew her residence permit indefinitely in accordance with administrative
practice and national laws in the MS. Hence, X has reasonable prospects of
obtaining the right to permanent residence, so the Directive is applicable.

However, holders of residence permits
issued for a specific purpose with a limited validity and that are not
renewable cannot, in principle, be considered to have a reasonable prospect of
obtaining the right to permanent residence. They are thus excluded from the
scope of the Directive. The successive issuance of extensions of permits with a
specific purpose or permits valid for less than one year, with the sole
intention of circumventing the applicability of the condition of reasonable
prospects of Article 3.1, would undermine the objective of the Directive and
its effectiveness[13].
A residence permit valid for less than one year is not sufficient. This
excludes forms of temporary stay, such as those of temporary or seasonal
workers.

Z is an au pair with a residence permit valid for 24 months that
cannot be renewed. Therefore, Z has no reasonable prospect of permanent
residence, so the Directive is not applicable.

W is a seasonal worker with a residence permit valid for nine
months. Since the permit is not valid for at least one year, the Directive is
not applicable.

2.2.        Family
members

Article 4(1) states that members of the
nuclear family, i.e. the spouse and minor children, are in any case entitled to
family reunification. This Article imposes precise positive obligations, with
corresponding clearly defined individual rights, on the MSs, since it requires
them, in the cases determined by the Directive, to authorise family
reunification of certain members of the sponsor's family, without being left a
margin of appreciation.[14]
Minor children, including adopted children of either the sponsor or the spouse,
are also entitled to family reunification on condition that the sponsor or the
spouse, respectively, has custody and the children are dependent on him/her.

According to Article 4(1) (c) and (d)
second sentence, in the case of children under shared custody, the MS
may only authorise reunification if the other party sharing custody has given
his or her prior agreement. The concept of ‘custody’ can be understood as a set
of rights and duties relating to the care of a person of a child, and in
particular the right to determine the child’s place of residence. ‘Shared custody’
is custody that is to be exercised jointly when, pursuant to a judgment or by
operation of law, one holder of parental responsibility cannot decide on the
child's place of residence without the consent of another holder of parental
responsibility[15].

In general, the custody arrangement between
the parents must be proven and the required agreement should be given in line
with the MSs’ family law and, if necessary, private international law. However,
if a particular situation leads to an unresolvable blockage[16], it is
up to MSs to determine how to deal with such situations. Nevertheless, a
decision should be taken in line with the best interests of the child as set
out in Article 5(5)[17]
and on a case-by-case basis, taking into account the reasons for not being able
to obtain agreement and other specific circumstances of the case.

Article 4(2) and (3) contain optional
provisions allowing MSs to authorise the entry and residence of other family
members, such as first-degree ascendants of the sponsor or the spouse, adult
unmarried children, unmarried partners in a long-term relationship, and
registered partners. When a MS has opted to authorise the family reunification
of any of the family members listed in these Articles, then the Directive is
fully applicable. The facultative provision of Article 4(2)(a) allows the
reunification of first-degree relatives in the direct ascending line of the
sponsor or his or her spouse on the condition that they (1) are dependent on
them and (2) do not enjoy proper family support in the country of origin.

The concept of ‘dependency’ has been
held to have an autonomous meaning under EU law. While the CJEU came to this
conclusion in its case law on Directive 2004/38/EC  [18] (the ‘Free
Movement Directive’)[19],
the CJEU’s choice of language does not indicate that its findings were limited
to that Directive. While it needs to be kept in mind that the context and
purpose of both Directives are not the same[20],
the criteria used by the CJEU to assess dependency may, mutatis mutandis,
serve as guidance to MSs to establish criteria to appreciate the nature and
duration of the dependency of the person concerned in the context of Article
4(2)(a).

The CJEU has held that the status of
‘dependent’ family member is the result of a factual situation characterised by
the fact that legal, financial, emotional or material support for that family
member is provided by the sponsor or by his/her spouse/partner[21]. When
examining an applicant’s personal circumstances, the competent authority must
take account of the various factors that may be relevant in the particular
case, such as the extent of economic or physical dependence and the degree of
relationship between the sponsor and the family member[22]. Consequently,
‘dependency’ may differ according to the situation and the particular family
member concerned

To determine whether family members are
dependent, the MS must assess whether, having regard to their financial and
social conditions, they need material support to meet their essential needs in
their country of origin or the country from which they came at the time when
they applied to join the sponsor[23].
There is neither a requirement as to the amount of material support provided,
nor any level of standard of living for determining the need for financial
support by the sponsor[24].
The status of dependent family members does not presuppose a right to
maintenance[25].
MSs may impose particular requirements as to the nature or duration of
dependence to satisfy themselves that the dependence is genuine and stable, and
has not been brought about with the sole objective of obtaining entry into and
residence in its territory. It is necessary, however, that those requirements are
consistent with the normal meaning of the words relating to the dependence
referred to in Article 4 of and do not deprive that provision of its
effectiveness[26].

The concept of ‘proper family support’
for a first-degree relative in ascending line in Article 4(2)(a) should not be
regarded as exclusively material and leaves a margin of discretion to the MS as
to what level is considered proper support. The requirement is fulfilled if no
other family members in the country of origin are by law or de facto
supporting the person, i.e. no one could replace the sponsor or his/her spouse
with regard to day-to-day care duties. The situation should be assessed in the light
of the circumstances of the case in question.

All of the provisions in this section must
be applied in accordance with the non-discrimination principle enshrined in
particular in Article 21 of the Charter, as pointed out in Recital 5.

2.3.        Minimum
age of spouse

Article 4(5) allows MSs to require the
sponsor and his/her spouse to be of a certain minimum age before the spouse is
able to join him/her. This minimum age may not exceed 21. This faculty may only
be used to ensure better integration and to prevent forced marriages.
Consequently, MSs may only require a minimum age for this purpose and not in
any manner which would undermine the objective of the Directive and the
effectiveness thereof[27].

Articles 5(5) and 17 oblige MSs to have due
regard for the best interests of minor children and to conduct an individual
examination in applications for family reunification. If a MS requires a
minimum age, it must still do a case-by-case assessment of all the relevant
circumstances of the individual application. The minimum age may act as a
reference, but may not be used as an overall threshold below which all
applications will be systematically refused, irrespective of an actual
examination of the situation of each applicant[28].
The minimum age requirement is only one of the factors that must be taken into
account by the MSs when considering an application[29].

If the individual assessment shows that the
justification for Article 4(5), i.e. ensuring better integration and preventing
forced marriages, is not applicable, then MSs should consider making an
exception thus allowing for family reunification in cases in which the minimum
age requirement is not fulfilled. For instance, when it is clear from the
individual assessment that there is no abuse, e.g. in the case of a common
child.

Y is a 30-year-old third-country national sponsor who wants to
reunite with his 20-year-old spouse whom he married two years ago and their two
common children. The spouse has a basic knowledge of the language of the MS. The
MS has an age requirement of 21.

In this case, the minimum age may only serve as a reference, so it
is only one of the factors to take into account in the individual assessment of
the situation. The fact that Y and his spouse have two common children is an indication
that a forced marriage is unlikely, and the interests of the children should
also be taken into account.

The wording of Articles 4, 7 and 8 clearly
indicates the point in time at which the applicant or sponsor should comply
with the requirements. While Article 7 is introduced by the words ‘when the
application for family reunification is submitted’, Articles 4 and 8 state
‘before the spouse is able to join him/her’ and ‘before having his/her family
members join him/her’. Therefore, the minimum age requirement needs to be
fulfilled at the moment of the effective family reunion and not when the
application is submitted. It should therefore be possible to submit applications
and to examine these before the minimum age requirement is fulfilled, especially
in view of the potential processing time of up to nine months. However, MSs may
postpone the effective family reunification until the minimum age is reached.

3.           Submission
and examination of the application

3.1.        Submission
of the application

Article 5(1) states that MSs must determine
whether the application for entry and residence has to be submitted either by
the sponsor or by the family member or members. Article 5(3) establishes the
general rule that applications are to be submitted and examined when the family
members are residing outside the territory of the MS in which the sponsor
resides.

Article 5(3) second subparagraph and
recital 7 allow MSs, in appropriate circumstances, to derogate from the general
rule of the first subparagraph and thus apply the Directive to situations where
the unity of the family can be preserved from the beginning of the sponsor’s
stay[30].
Hence, in appropriate circumstances, MSs may accept applications when family
members are already in its territory. MSs have a wide margin of appreciation in
determining the appropriateness of the circumstances[31].

MSs are allowed to charge reasonable, proportional
administrative fees for an application for family reunification and they have a
limited margin of discretion in setting these charges, as long as they do not
jeopardise the achievement of the objectives and the effectiveness of the
Directive[32].
The level at which fees are set must not have either the object or the effect
of creating an obstacle to the exercise of the right to family reunification.
Fees which have a significant financial impact on third-country nationals who
satisfy the conditions laid down by the Directive could prevent them from
exercising the rights conferred by the Directive and would therefore be per
se excessive and disproportionate[33].
The fees levied on third-country nationals and their family members under
Directive 2003/86 could be compared to those levied on own nationals for the
issue of similar documents, to evaluate whether the fees for third-country
nationals are proportionate, taking into account that these persons are not in
identical situations[34].
To promote best interests of the child, the Commission encourages MSs to exempt
applications submitted by minors from administrative fees. In case that an entry
visa is required in a MS, the issuing conditions of such a visa should be facilitated
and the visa should be granted without additional administrative fees.

3.2.        Accompanying
evidence

In accordance with Article 5(2), an
application for family reunification shall be accompanied by

(a) documentary evidence to prove the
family relationship;

(b) documentary evidence to prove compliance
with the conditions of Articles 4 and 6 and, where applicable, 7 and 8;

(c) certified copies of the family
member(s)’  travel documents.

MSs have a certain margin of appreciation
in deciding whether it is appropriate and necessary to verify evidence of the
family relationship through interviews or other investigations, including DNA
testing. The appropriateness and necessity criteria imply that such
investigations are not allowed if there are other suitable and less restrictive
means to establish the existence of a family relationship. Every application,
its accompanying documentary evidence and the appropriateness and necessity of
interviews and other investigations need to be assessed on a case-by-case
basis.

Besides factors such as a common child,
previous cohabitation and registration of the partnership, the family
relationship between unmarried partners can be proven through any reliable
means of proof to show the stable and long-term character of their relationship,
for instance, correspondence, joint bills, bank accounts or ownership of real
estate, etc.

3.3.        Length
of procedures

Article 5(4) imposes an obligation on MSs
to give a written notification of the decision on an application as soon as
possible. Recital 13 specifies that the procedure for examination of
applications should be effective and manageable, taking account of the normal
workload of the MSs’ administrations.

Therefore, as a general rule, a
standard application under normal workload circumstances should be processed
promptly without unnecessary delay. If the workload exceptionally exceeds
administrative capacity or if the application needs further examination, the maximum
time limit of nine months may be justified. The nine-month period starts
from the date on which the application is first submitted, not the moment of
notification of receipt of the application by the MS.

The exception provided for in Article 5(4)
second subparagraph of an extension beyond the nine-month deadline is only
justified in exceptional circumstances linked to the complexity of the
examination of a specific application. This derogation should be interpreted
strictly[35]
and on a case-by-case basis. A MS administration which wants to make use of
this possibility must justify such an extension by demonstrating that the
exceptional complexity of a particular case amounts to exceptional
circumstances. Administrative capacity issues cannot justify an exceptional
extension and any extension should be kept to the strict minimum necessary to
reach a decision. Exceptional circumstances linked to the complexity of a particular
case could be, for instance, the need to assess the family relationship within
the context of multiple family units, a severe crisis in the country of origin
impeding access to administrative records, difficulties in organising hearings
of family members in the country of origin due to the security situation, or
difficult access to diplomatic missions, or determining the right to legal
custody if the parents are separated.

Article 5(4) states that the decision must
be notified in writing and that if it is negative, legal and factual reasons
should be given to allow the applicant to effectively exercise the right to
mount a legal challenge[36].

4.           Requirements
for the exercise of the right to family reunification

4.1.        Public
policy, public security and public health

Article 6(1) and (2) allow MSs to reject an
application, or withdraw or refuse to renew a family member’s residence permit,
on grounds of public policy, public security or public health. Recital 14 gives
some indications of what these notions entail. A person who wishes to be
granted family reunification should not constitute a threat to public
policy and public security. Public policy may cover a conviction for committing
a serious crime. Public policy and security cover cases in which a
third-country national belongs to an association which supports terrorism,
supports such an association or has extremist aspirations.

Besides the above, the definition of these
notions is largely left to the discretion of the MSs, subject to relevant case
law of the European Court for Human Rights and the CJEU. Although the relevant
case law of the CJEU is not related directly with regard to third-country nationals,
it may mutatis mutandis serve as background when defining the notions in
question by analogy[37].

MSs should apply the principle of
proportionality when assessing a particular application. Article 6(2) second
subparagraph states that MSs, when taking a decision, are obliged to consider
the particular circumstances of the individual case (Article 17) and the
severity or type of offence against public policy or public security, or the
dangers emanating from the applicant. Recital 14 also states that family
reunification may only be refused on duly justified grounds.

The public health requirement may
only be invoked if there is a threat to the general public that cannot be
easily prevented by protective health measures. Similar provisions in the
Long-Term Residents Directive may help define public health in the context of
family reunification since these provisions apply to similar situations, also
concern third-country nationals and serve the same purpose[38].

As such, the only diseases that may be
considered a threat to public health are those defined by the relevant
instruments of the World Health Organisation and such other infectious or
contagious parasite-based diseases as are the subject of protective provisions
in relation to nationals in the host country. MSs may require a medical
examination to certify that family members do not suffer from any of these
diseases. Such medical examinations shall not be performed on a systematic basis.

4.2.        Accommodation
requirement

As provided for by Article 7(1)(a), MSs may
require evidence that the sponsor has accommodation regarded as normal for a
comparable family in the same region and which meets the general health and
safety standards in force in the MS concerned. The evaluation of this
accommodation is left to the discretion of the MS, but the criteria adopted may
not be discriminatory and this provision defines the upper limit of what may be
required. The criteria as to size, hygiene and safety may not be stricter than
for accommodation occupied by a comparable family (in terms of number of
members and social status) living in the same region. The ‘same region’ should
be understood as geographical units between which differences in standards may
exist, for instance, at municipal or regional level. The criteria adopted by
the MSs should be transparent and clearly specified in the national
legislation.

The purpose of this provision is to ensure
adequate accommodation for the sponsor and his/her family members. Therefore,
the fulfilment of this requirement may be judged on either the situation of the
sponsor at the moment of the application, or on a reasonable prognosis of the
accommodation that can be expected to be available when the sponsor will be
joined by his/her family member(s).

A rental or purchase agreement may, for
instance, serve as evidence. A rental agreement of limited duration may be
deemed insufficient. In case of lengthy waiting periods and processing times,
it may be disproportionate and undermine the objective and the effectiveness of
the Directive to ask for this requirement to be met at the moment of
application, as this could place considerable additional financial and
administrative burdens on the sponsor. In such specific circumstances, the
Commission encourages MSs to exercise a certain flexibility. They could, for
instance, accept as evidence a conditional rental agreement which would enter
into force once family reunification was granted and family members effectively
entered.

4.3.        Sickness
insurance requirement

According to Article 7(1)(b), MSs may
require evidence that the sponsor has sickness insurance for him/herself and
the members of his/her family in respect of all risks normally covered for its
own nationals.

If the MS concerned has compulsory
universal health insurance that is also available to and mandatory for
third-country national residents, the fulfilment of this requirement must be
assumed. The Commission considers that requiring additional private health insurance
would impose an unnecessary burden and undermine the objective and the
effectiveness of the Directive. If the MS has a voluntary contribution-based
scheme, this requirement can be fulfilled through:

(a) a system of conditional health
insurance granted on acceptance of an application for family reunification of a
family member or

(b) a private health insurance that covers
risks that are normally covered by a health insurance for MS nationals.

4.4.        Sufficient
resources requirement

According to Article 7(1)(c), MSs may
require evidence that the sponsor has stable and regular resources sufficient
to maintain him/herself and the members of his/her family, without recourse to
the social assistance system of the MS concerned. In the Chakroun case, the CJEU
held that, since authorisation of family reunification is the general rule,
this faculty must be interpreted strictly. The margin which the MSs are
recognised as having must therefore not be used in a manner that would
undermine the objective and the effectiveness of the Directive[39]. The
CJEU also specified that this faculty must be exercised in the light of
Articles 7 and 24(2) and (3) of the Charter, which require the MSs to
examine applications for family reunification in the interests of the children
concerned and with a view to promoting family life[40].

The evaluation of the stability and regularity
of the resources has to be based on a prognosis that the resources can
reasonably be expected to be available in the foreseeable future, so that the
applicant will not need to seek recourse to the social assistance system. For
this purpose, the applicant may provide evidence that resources of a certain
level are available and are expected to remain available on a regular basis. In
general, a permanent employment contract should therefore be considered as
sufficient proof.

MSs are encouraged to take the realities of
the labour market into account as permanent employment contracts may be
increasingly unusual, especially at the beginning of an employment relationship.
If an applicant submits proof of another type of employment contract, for
instance, a temporary contract that can be prolonged, MSs are encouraged not to
automatically reject the application based solely on the nature of the
contract. In such cases, an assessment of all the relevant circumstances in an individual
case is necessary.

In certain sectors, temporary contractual
work may be standard practice, for instance, in some IT, media or creative
sectors, yet resources may still be stable and regularly available. Other
relevant factors for assessing the availability of resources may be, for
example, the qualifications and skills of the sponsor, structural vacancies in
the field of the sponsor, or the labour market situation in the MS. Access to
specified sums over a certain period in the past may certainly constitute an
element of proof, yet this must not be imposed as a requirement, since this
could introduce an additional condition and waiting period not envisaged in the
Directive, especially if the sponsor is at the beginning of his/her career.

Regarding the nature of the
resources, these may consist of income from employment, but also of other means,
such as income from self-employed activities, private means available to the
sponsor, payments based on entitlements built up by previous contributions made
by the sponsor or family member (for instance, retirement or invalidity
payments).

Furthermore, to evaluate whether resources
are sufficient, ‘sufficient, stable and regular resources’, contrasted with
‘without recourse to the social assistance system’, indicates that the
latter is a key criterion for assessing whether the resources requirement is
fulfilled. ‘Social assistance’ refers to assistance granted by the public
authorities, whether at national, regional or local level, which can be claimed
by an individual, in this case the sponsor, who does not have stable and
regular resources sufficient to maintain him/herself and the members of his/her
family and who, by reason of that fact, is likely to become a burden on the
social assistance system of the host MS during his/her period of residence[41]. This is
a concept which has its own independent meaning in EU law and cannot be defined
by reference to concepts of national law[42].
The CJEU has held that this concept must be interpreted as referring to general
assistance which compensates for a lack of stable, regular and sufficient
resources, and not as referring to special assistance which enables exceptional
or unforeseen needs to be addressed[43].
Therefore, the expression ‘recourse to the social assistance system’ does not
allow a MS to refuse family reunification to a sponsor who proves that he/she
has stable and regular resources which are sufficient to maintain him/herself
and the members of his/her family, but who, given the level of his/her
resources, will nevertheless be entitled to claim special assistance to meet
exceptional, individually determined, essential living costs, tax refunds
granted by local authorities on the basis of his/her income, or income support
measures[44].

MSs are allowed to take into account the level
of minimum national wages and pensions as well as the number of family
members when evaluating the sponsor’s resources and determining the social
assistance level. In the Chakroun case, the CJEU stressed that this faculty
must be interpreted strictly and exercised in a manner which avoids undermining
the objective and the effectiveness of the Directive[45].
Consequently, minimum national wages should be seen as the upper limit of what
MSs may require, except if MSs choose to take into account the number of family
members.

Moreover, MSs are allowed to indicate a
certain sum as a reference amount, but since needs can vary greatly
depending on the individuals, they may not impose a minimum income level below
which all family reunifications will be refused, irrespective of an actual
examination of the situation of each applicant in accordance with Article 17[46].
Therefore, an application may not be rejected for the sole reason that the
applicant’s resources do not reach the reference amount. An individual
assessment of all elements of a particular case is required before reaching a
decision on an application.

The CJEU has held that, in principle,
it is the resources of the sponsor that are the subject of the individual
examination of applications for reunification required by the Directive, not
the resources of the third-country national for whom a right of residence is
sought on the basis of family reunification[47].
At the same time, by using the term ‘in principle’, the CJEU suggests that MSs
may choose to take the resources of family members into account or that
exceptions from this rule may be granted in individual cases justified by
particular circumstances[48].

Finally, the CJEU has also held that national
legislation applying this requirement is not allowed to distinguish between
family relationships that arose before or after the sponsor entered the
territory of the MS. The capacity of a sponsor to have regular resources which
are sufficient to maintain him/herself and the members of his/her  family
cannot in any way depend on the point in time at which he/she constitutes his/her
family[49].

4.5.        Integration
measures

The Commission recognises the margin of
appreciation MSs have to decide whether to require third-country nationals to
comply with integration measures and to develop the measures most appropriate
in their own national context[50].
However, the Commission stresses that the objective of such measures is to
facilitate the integration of family members. Their admissibility depends on
whether they serve this purpose and whether they respect the principle of
proportionality. Therefore, their admissibility depends on the accessibility,
design and organisation of these measures and whether such measures or their
impact serve purposes other than integration. If integration measures are in effect
used to limit family reunification, this would amount to an additional
requirement for family reunification. This would undermine the objective of the
directive, which is to promote family reunification,
and the effectiveness thereof[51].

Therefore, MSs may impose a requirement on
family members to comply with integration measures under Article 7(2), but this
may not amount to an absolute condition upon which the right to family
reunification is dependent. The nature of the integration measures in Article
7(2) is different from the conditions envisaged in Articles 4(1) and 7(1).
First, Article 4(1) — as a stand-still clause only[52] — allows
MSs to verify for children over 12 arriving independently of the rest of their
families whether they meet a condition for integration before authorising
entry and residence[53].
Secondly, under Article 7(1), MSs may require evidence that these requirements are
fulfilled or fulfillable, based on a reasonable prognosis. These can therefore
be considered as pre-conditions which MSs may require the sponsor
to achieve before authorising entry and residence of family members.

In contrast, Article 7(2) allows MSs to
require third-country nationals to comply with integration measures. MSs
may require family members to make a certain effort to
demonstrate their willingness to integrate, for instance, by requiring
participation in language or integration courses, prior to or after arrival.
Since these measures are meant to help facilitate the integration process, this
also implies that the way in which MSs conceive this possibility cannot be
unlimited.

Article 7(2) comes down to the possibility
to ask an immigrant to make the necessary efforts to be able to live his/her
day-to-day life in the society in which he/she has to integrate him/herself and
to the possibility for MS to verify whether this person shows the required
willingness to integrate in his/her new environment. The
verification of willingness to integrate may take the form of an examination on
basic skills deemed necessary for this purpose. This examination should be
gender sensitive to take into account the specific situation of some women that
might, for instance, have poor level of education. The level of difficulty of
the exam, the cost of participating, the accessibility of the teaching material
necessary to prepare for such an examination, or the accessibility of the
examination itself must not, in fact, be barriers that complicate the
achievement of this purpose[54].
In other words, the integration measures that a MS may require cannot result in
a performance obligation that is in fact a measure that limits the possibility
of family reunification. The measures must, on the contrary, contribute to the
success of family reunification.

Furthermore, integration measures must be
proportionate and applied with the necessary flexibility to ensure that, on a
case-by-case basis and in view of specific circumstances, family reunification
may be granted even where integration requirements are not met[55]. MSs
should therefore provide the effective possibility of an exemption, a deferral
or other forms of integration measures in case of certain specific issues or
personal circumstances of the immigrant in question.

Specific individual circumstances that may
be taken into account are, for instance, cognitive abilities, the vulnerable
position of the person in question, special cases of inaccessibility of
teaching or testing facilities, or other situations of exceptional hardship. Special
attention should also be paid to the fact that in several parts of the world
women and girls have less access to education and might have a lower literacy
level than men. Therefore, MSs may not refuse entry and stay on its territory to
a family member referred to in Article 4(1) on the sole ground that this family
member, while still abroad, did not succeed in the integration examination provided
for in the legislation of that MS[56].

The Commission considers that MSs should provide
the necessary integration measures for family members to learn about their new
country of residence and acquire language skills that can facilitate the
integration process. Therefore, the Commission considers that language and
integration courses should be offered in an accessible way (available in
several locations), be free or at least affordable, and tailored to individual
needs, including gender specific needs (e.g. childcare facilities). While
pre-departure integration measures may help prepare migrants for their new life
in the host country by providing information and training before migration
takes place, integration measures may often be more
effective in the host country.

4.6.        Waiting
period

Article 8 preserves a limited margin of
appreciation for MSs under which they have the option to require a maximum of
two years’ lawful residence before a sponsor may be joined by his/her family
members. If a MS chooses to exercise this option, it may not impose a general
blanket waiting period applied in the same way to all applicants without regard
to the particular circumstances of specific cases and the best interests of
minor children[57].
The CJEU has stressed that duration of residence in the MS is only one of the
factors that the MS must take into account when considering an application and
that a waiting period cannot be imposed without taking into account, in
specific cases, all the relevant factors, while having due regard to the best
interests of minor children[58].

The purpose of this provision is to enable MSs
to make sure that family reunification will take place in favourable
conditions, after the sponsor has been residing in the host country for a
period sufficiently long for it to be assumed that the family members will
settle down well and display a certain level of integration[59]. The
admissibility under the Directive of a waiting period and its length depends on
whether this requirement serves this purpose and respects the principle of
proportionality. To avoid affecting family life in a disproportionate way, the
Commission encourages MSs to keep waiting periods as short as strictly
necessary for achieving the purpose of the provision, especially in cases involving
minor children.

The Commission is of the view that to
determine the duration of the ‘lawful stay’ of a sponsor, any period of time
during which he/she has resided on the territory of a MS in accordance with its
national law should be taken into account, starting from the first day. This
may be residence on the basis of a residence permit or any other title legally
allowing the stay. However, irregular stays, including periods of toleration and
periods of postponed return, should be excluded.

MSs may require that the lawful stay be continuous,
given the purpose of the provision of reaching a certain level of stability and
integration. However, interruptions which do not jeopardise this purpose may be
allowed. These may, for instance, include temporary absences (such as business
trips, holidays or visits to family in the country of origin ...) or short
periods of unlawful residence (e.g. expiration of a residence card due to a
late application for prolongation or delay in processing). Periods of lawful
stay before a sponsor acquires a residence permit valid for at least one year,
as required by Article 3(1), should also qualify to calculate the duration of
the lawful stay.

X is a third-country national who has been lawfully staying in a MS
for a continuous period of nine months. Today X received a residence permit
valid for one year which can be renewed indefinitely. X wants to be joined by
his third-country spouse and submits an application for family reunification
and wonders when his spouse can join him.

The MS requires a waiting period, and, in X’s case, considers the
maximum length of two years lawful stay proportionate to enable family
reunification to take place in favourable conditions. In this case, X’s spouse
can join him at the end of the remaining waiting period, that is, after another
15 months have elapsed.

In the Commission’s opinion, the waiting
period does not include the period required for MSs to examine the application
in accordance with Article 5(4)[60].
Both periods may start and end at different times, and may or may not overlap,
according to the individual case. The Commission considers that an application
may be submitted as from the moment the sponsor holds a residence permit valid
for at least one year and has reasonable prospects of obtaining the right to permanent
residence[61],
but MSs may delay granting family reunification (‘before having his/her
family members join him/her’) until the waiting period specified in their
legislation has been fulfilled.

Y is a third-country national who has just arrived in a MS and
immediately receives a renewable residence permit valid for two years. Y would
like her spouse and her two minor children to join her and submits an
application for family reunification.

In Y’s case, the MS considers that Y and her spouse have already
displayed a high level of integration. In the interests of the children, the MS
decides that no waiting period is required. However, due to administrative
constraints, there is a backlog in the processing of applications and the MS
only reaches this decision after nine months. In Y’s case, she can be reunited
with her spouse and children from the moment she receives notification of the
decision.

The CJEU has held that the rules in the
Directive, with the exception of Article 9(2), apply to a marriage concluded
before a sponsor took up residence in the MS as well as to one that was concluded
afterwards[62],
therefore no distinction may be made between the two situations as regards the
waiting period. While the Commission shares the MSs’ concern about possible
misuse of the right to family reunification, the option to require a waiting
period may not be used for the sole purpose of preventing misuse. The sole
purpose of Article 8 is to require a certain amount of stable residence and
integration to make sure that family reunification will take place in
favourable conditions. More suitable means are available, for example, through
individual assessment of cases, to prevent marriages of convenience.

Z is a third-country national who has been lawfully staying in a MS
for four years while a student. After graduation, Z takes up a job offer and
receives a new residence permit for one year that may be renewed indefinitely. Meanwhile,
Z meets D, a third-country national, and starts a relationship, and 13 months
later they get married and apply for family reunification so that D can join her.

In Z’s case, the potentially required waiting period of maximum two
years lawful stay has already been fulfilled, so D can join Z as soon as she
receives notification of the decision.

5.           Entry
and residence of family members

5.1.        Entry,
long-stay visas and residence permits

Article 13(1) requires that, as soon as an application
for family reunification has been accepted, the MS is obliged to grant family
members every facility for obtaining the requisite visas. This implies that
when an application is accepted, MSs should ensure a speedy visa procedure,
reduce additional administrative burdens to a minimum and avoid double-checks
on the fulfilment of the requirements for family reunification. Since the
purpose of stay of family reunification is long term, the visa issued should
not be a short-stay visa.

If access to travel documents and visas is
particularly difficult or dangerous and may thus constitute a disproportionate
risk or a practical obstacle to the effective exercise of the right to family
reunification, MSs are encouraged to consider the specificities of the case and
the circumstances in the country of origin. In exceptional circumstances, for
instance, in the context of a failed state or a country with high internal
security risks, MSs are encouraged to accept emergency travel documents issued
by the International Committee of the Red Cross (ICRC), to issue a national
one-way laissez-passer, or offer family members the possibility of being issued
a visa upon arrival in the MS.

Administrative fees for visas are allowed,
but these may not be excessive or disproportionate. They must not have either
the object or the effect of creating an obstacle to obtaining the rights
conferred by the Directive and, therefore, depriving it of its effectiveness[63].

Article 13(2) states that MSs must grant
family members a renewable first residence permit valid for at least one year.
According to Article 13(3), the duration of the family member’s residence
permit should, in principle, not go beyond the date of expiry of the sponsor’s
residence permit. Thus, to synchronise the expiry dates of the sponsor’s and
family members’ resident permits, MSs may grant resident permits valid for less
than one year. However, exceptions to this rule are allowed, for instance, when
the sponsor’s residence permit is valid for less than one year, but is certain
to be prolonged.

5.2.        Access
to employment

The sponsor’s family members are entitled
to access to employment and self-employed activity, in the same way as the
sponsor, subject to the optional restrictions of Article 14(2) and (3). For a
period not exceeding 12 months, MSs may set the conditions under which family
members can exercise their activity. During this period, MSs may also restrict
access to their labour market, and even perform a labour market test. After the
12-month period, MSs are obliged to authorise family members to exercise
employed or self-employed activities, provided the sponsor has such
authorisation.

MSs have the option to restrict access to
employment or self-employed activity of first-degree ascending relatives and
adult unmarried children, but not of other family members admitted under the
Directive. The access to employment of admitted family members outside the
scope of the Directive is an entirely national competence. For the purpose of
promoting the integration of family members[64],
to fight poverty traps and to avoid their deskilling, the Commission recommends
keeping restrictions on labour market access for family members, in particular
migrant women, to a minimum.

5.3.        Access
to autonomous residence permit

Article 15(1) states that after five years
of residence at the latest, and if no residence permit was granted for other
reasons, MSs must issue, upon application, an autonomous residence permit,
independent of the sponsor, to the spouse or unmarried partner and a child who
has reached majority. Residence should be understood as lawful stay and the
Commission stresses that MSs are allowed to grant the permit earlier. In the
event of a breakdown of the relationship, the right to an autonomous residence
permit must in any case still be given to the spouse or unmarried partner, but
MSs are allowed to exclude an adult child. While Article 15(4) states that the
conditions are to be established by national law, Article 15(3) indicates that
a breakdown may be understood to include widowhood, separation, divorce, death,
etc.

Articles 15(2) and 15(3) (first sentence)
allow MSs to issue an autonomous residence permit at any moment to adult
children and first-degree ascendants to whom Article 4(2) applies and, upon
application, to any persons who have entered by virtue of family reunification
in the event of widowhood, divorce, separation, or death of first-degree
ascendants or descendants.

Articles 15(3) (second sentence) states that
MSs must issue an autonomous residence permit in the event of particularly
difficult circumstances to any family members who have entered by virtue of
family reunification. MSs are required to lay down provisions in national law
for this purpose. The particularly difficult circumstances must have been
caused by the family situation or the break-down thereof, not in difficulties with
other causes. Examples of particularly difficult circumstances may be, for
instance, cases of domestic violence against women and children, certain cases
of forced marriages, risk of female genital mutilation, or cases where the
person would be in a particularly difficult family situation if forced to
return to the country of origin.

6.           Family
reunification of beneficiaries of international protection

6.1.        Refugees

Chapter V of the Directive lays down
several derogations from Articles 4, 5, 7 and 8, creating more favourable
conditions for family reunification of refugees. These derogations impose
precise positive obligations on the MSs, with corresponding clearly defined
individual rights, requiring them to authorise the reunification of certain
members of a refugee’s family under these more favourable conditions, without
being left a margin of appreciation[65].

At the same time, the Directive allows MSs
to limit the application of these more favourable conditions by restricting
them to

(1) family relationships that predate the
entry (Article 9(2)),

(2) applications made within three months
of the granting of refugee status (Article 12(1) third subparagraph), and

(3) families for whom family reunification
is impossible in a third country with which the sponsor and/or family members
have special links (Article 12(1) second subparagraph).

However, MSs must not use this margin of
manoeuvre in a manner that would undermine the objective of the Directive and
the effectiveness thereof[66].
MSs should transpose and apply these provisions with special attention to take
into account the particular situation of refugees who have been forced to flee
their country and prevented from leading a normal family life there[67]. The Commission encourages the example of
a number of MSs that do not apply the optional restrictions, or allow for more
leniency, in recognition of the particular plight of refugees and the
difficulties they often face in applying for family reunification[68].

According to Article 12(1) MSs are not
allowed to require the refugee and/or family member(s) to provide evidence[69] that the
refugee fulfils the requirements set out in Article 7, i.e. accommodation,
sickness insurance, sufficient resources and integration measures. However,
integration measures may be applied once the persons concerned have been
granted family reunification (Article 7(2) second subparagraph). Since this
rule is part of the general provisions and not of Chapter V, it prevails over
Article 9(2), which allows MSs to confine the more favourable provisions to
refugees whose family relationships predate their entry. Consequently, with
regard to a nuclear family founded after the refugee-sponsor’s entry, while
Chapter V does not apply, integration measures may also only be applied after
family reunification has been granted.

The Commission underlines that the
provisions of Chapter V must be read in the light of the principles set out in
Article 5(5) and Article 17. Therefore, when examining applications for family
reunification by refugees, MSs must make a balanced and reasonable assessment
in every individual case of all the interests at play, while having due regard
to the best interests of minor children[70].
No factor taken separately may automatically lead to a decision; each must
enter the equation only as one of the relevant factors[71].

6.1.1.     Family
Members

According to Article 10(1), the definition
of family members of Article 4 shall be used to define family members of
refugees, thereby excluding any more stringent definitions or additional
requirements. All mandatory and optional limitations set by Article 4 shall
also apply, such as the exclusion of polygamous marriage, except for the third
subparagraph of Article 4(1), which shall not apply to children of refugees.

Article 10(2) explicitly allows MSs to
expand this scope by allowing them to authorise family reunification of other
family members not referred to in Article 4, if they are dependent on the
refugee. MSs are encouraged to use their margin of appreciation in the most
humanitarian way, as Article 10(2) does not lay down any restrictions as to the
degree of relatedness of ‘other family members’. The Commission encourages MSs
to also consider individuals who are not biologically related, but are cared
for within the family unit, for instance, foster children, even though MSs
retain full discretion in this regard. The concept of dependency is the determining
factor.

6.1.2.     Absence
of official documentary evidence

Article 11 states that Article 5 shall
apply to the submission and examination of the application, subject to the
derogation with regard to official documentary evidence in Article 11(2). Thus,
in line with Article 5(2), MSs may consider documentary evidence to establish
the family relationship, and interviews and other investigations may be carried
out if appropriate and necessary.

However, the particular situation of
refugees who were forced to flee their country implies that it is often
impossible or dangerous for refugees or their family members to produce
official documents, or to get in touch with diplomatic or consular authorities
of their country of origin.

Article 11(2) is explicit, without leaving
a margin of appreciation, in stating that the fact that documentary evidence is
lacking cannot be the sole reason for rejecting an application and in obliging
MSs, in such cases, to ‘take into account other evidence’ of the existence of
the family relationship. Since such ‘other evidence’ is to be assessed in
accordance with national law, MSs have a certain margin of appreciation, yet
they should adopt clear rules governing these evidentiary requirements.
Examples of ‘other evidence’ to establish family links may be written and/or
oral statements from the applicants, interviews with family members, or
investigations carried out on the situation abroad. These statements can then,
for instance, be corroborated by supporting evidence such as documents,
audio-visual materials, any documents or physical exhibits (e.g. diplomas, proof
of money transfers...) or knowledge of specific facts.

The individual assessment of Article 17
requires that MSs take all relevant factors into account while examining the evidence
provided by the applicant, including age, gender, education, background and
social status as well as specific cultural aspects. The Commission considers
that where serious doubts remain after  other types of proof have been
examined, or where there are strong indications of fraudulent intent, DNA
testing can be used as a last resort[72].
In such cases, the Commission considers that MSs should observe the UNHCR principles
on DNA testing[73].

The Directive does not prevent MSs from charging
refugees or applicants for DNA tests or other investigations. However, fees
cannot be excessive or disproportionate to the point that they have the effect
of creating an obstacle to obtaining the rights conferred by the Directive and,
therefore, deprive it of its effectiveness[74].
In setting potential fees, the Commission considers that MSs should take into
account the particular situation of refugees and encourages MSs to bear
the costs of a DNA test, especially if it is imposed upon the refugee or
his/her family members.

6.1.3.     Exceptions
to the more favourable provisions of Chapter V

Article 12(1) second subparagraph allows
MSs not to apply the more favourable conditions if family reunification is
possible in a third country with which the sponsor and/or family member has special
links. This option requires that the third country be a realistic alternative
and, thus, a safe country for the sponsor and family members. The burden of
proof on the possibility of family reunification in a third country lies on the
MS,  not the applicant. In particular, the relocation to such a third country
should not pose a risk of persecution or of refoulement[75] for the
refugee and/or his family members and the refugee should have the possibility
to receive protection there in accordance with the 1951 Convention relating to
the Status of Refugees. The ‘special links’ imply the sponsor and/or family
member have family, cultural and social ties with the third country[76].

Article 12(1) third subparagraph allows MSs
to require the refugee to meet the conditions of Article 7(1) if the
application for family reunification is not submitted within a period of three
months after the granting of refugee status. Refugees often face practical
difficulties within this timeframe and these may constitute a practical
obstacle to family reunification. Therefore, the Commission considers the fact
that most MSs do not apply this limitation as the most appropriate solution.

Nevertheless, if MSs opt to apply this
provision, the Commission considers that they should take into account
objective practical obstacles the applicant faces as one of the factors when
assessing an individual application. Furthermore, while MSs, in accordance with
Article 11 and 5(1), are free to determine whether the application should be
submitted either by the sponsor or by the family member, the specific situation
of refugees and their family members may make this particularly difficult or
impossible.

Therefore, the Commission considers that
MSs, especially when applying a time limit, should allow for the possibility of
the sponsor submitting the application in the territory of the MS to guarantee
the effectiveness of the right to family reunification. Finally, if an
applicant is faced with objective practical obstacles to meeting the three
month deadline, the Commission considers that MSs should allow them to make a
partial application, to be completed as soon as documents become available or
tracing is successfully completed. The Commission also urges MSs to provide
clear information on family reunification for refugees in a timely and
understandable way (for instance, when their refugee status is granted).

6.1.4.     Travel
documents and long-stay visas

Obtaining the necessary travel documents
and long-stay visas may be particularly challenging for refugees and their
family members and may constitute a practical obstacle to family reunification.
The Commission therefore considers that MSs should pay special attention to
this particular situation and facilitate the obtaining of travel documents and long-stay
visas so that refugees may effectively exercise their right to family
reunification. In cases where it is impossible for refugees and their family
members to obtain national travel documents and long-stay visas, MSs are
encouraged to recognise and accept ICRC emergency travel documents and
Convention Travel Documents[77],
issue one-way laissez-passer documents, and offer family members the
possibility of being issued a visa upon arrival in the MS.

6.2.        Beneficiaries
of subsidiary protection

Article 3(2) excludes the application of
the Directive, and thus the more favourable conditions for refugees, where the
sponsor is:

(a) applying for refugee status but has not
yet received a final decision,

Or a beneficiary of

(b) temporary or

(c) subsidiary protection,

or applying for these statuses.

The Commission stresses that the Directive
should not be interpreted as obliging MSs to deny beneficiaries of temporary or
subsidiary protection the right to family reunification[78]. The
Commission considers that the humanitarian protection needs of persons
benefiting from subsidiary protection do not differ from those of refugees, and
encourages MSs to adopt rules that grant similar rights to refugees and beneficiaries
of temporary or subsidiary protection. The convergence of both protection
statuses is also confirmed in the recast Qualification Directive 2011/95/EU[79] as part
of the ‘EU Asylum Package’[80].
In any case, even when a situation is not covered by European Union law, MSs
are still obliged to respect Article 8 and 14 ECHR[81].

7.           Overall
principles

7.1.        Availability
of information

The Directive calls upon MSs to develop a
set of rules governing the procedure for examination of applications for family
reunification which should be effective and manageable, as well as transparent
and fair, to offer appropriate legal certainty to those concerned[82]. To meet
these criteria, MSs should develop practical guides with detailed, accurate, clear
information for applicants, and to communicate any new developments in a timely
and clear manner. Such practical guides should be made widely available,
including online[83]
and in places where applications are made, whether in consulates or elsewhere.
The Commission recommends making these guides available in the language of the
MS, in the local language in the place of application, and in English.

7.2.        Best
interests of the child

This horizontal clause of Article 5(5)
requires that the child’s best interests must be a primary consideration in all
actions relating to children[84].
MSs must therefore take the child’s well-being and the family’s situation into
consideration in accordance with the principle of respect for family life, as
recognised by the Convention on the Rights of the Child and the Charter of
Fundamental Rights of the EU.

The CJEU has held that Article 5(5) and
recital 2 require that when a MS administration examines an application, in
particular when determining whether the conditions of Article 7(1) are
satisfied, the Directive must be interpreted and applied in the light of
respect for private and family life[85]
and the rights of the child[86]
of the Charter[87].
The CJEU has also recognised[88]
that children, for the full and harmonious development of their personality,
should grow up in a family environment[89],
that MSs are to ensure that a child shall not be separated from his or her
parents against their will[90]
and that applications by a child or his/her parents to enter or leave a MS for
the purpose of family reunification are to be dealt with by the MSs in a
positive, humane and expeditious manner[91].

Furthermore, the CJEU has recognised[92] that the
right to respect for private or family life must be read in conjunction with
the obligation to have regard for the child’s best interests[93], taking
account of the need for a child to maintain a personal relationship with both his
or her  parents on a regular basis[94].
Consequently, when a MS examines an application, it must ensure that a child
shall not be separated from his/her parents against their will, unless the MS
decides that the best interests of the child require such separation in
accordance with established law and procedures. Reasons for any such decision
must be given so as to guarantee effective judicial review.

7.3.        Abuse
and fraud

The Commission considers it imperative to
take action against abuse and fraud of the rights conferred by this Directive.
In the interests of both society and of genuine applicants, the Commission
encourages MSs to take firm action in line with the provisions of Articles
16(2) and 16(4).

Article 16(2) envisages that MSs may reject
an application, or withdraw or refuse to renew a family member’s residence
permit, if it is shown that

(a) false or misleading information, false
or falsified documents were used, fraud was otherwise committed or other
unlawful means were used; or

(b) the marriage, partnership or adoption
was contracted for the sole purpose of enabling the person concerned to enter
or reside in a MS (‘marriages or relationships of convenience’, ‘false
declarations of parenthood’).

MSs are in particular allowed to take into
consideration the fact that a marriage, partnership or adoption was contracted
after the sponsor had been issued his/her residence permit when assessing such
cases.

Article 16(4) allows MSs to conduct
specific checks and inspections if there is reason to suspect that there is
fraud, or a marriage, partnership or adoption of convenience. However, general
checks and inspections of specific categories of marriage, partnership or
adoption are not allowed.

Marriages of convenience can concern
marriages of third-country nationals with

(a) other third-country nationals residing
in the EU,

(b) EU nationals having exercised the right
to free movement or

(c) own nationals.

While different rights and legal rules are
applicable to family reunification in these constellations, the main
definitions, investigation and detection techniques are the same. For this
reason, Section 4.2 of the 2009 guidelines on the Free Movement Directive may, mutatis
mutandis, be referred to for guidance on definitions[95].

In its Communication of 25 November 2013 on
free movement of EU citizens and their families[96] the
Commission announced that it will help authorities implement EU rules which
allow them to fight potential abuses of the right to free movement by preparing
a handbook on addressing marriages of convenience (Action 1). This handbook
will address the issue of marriages of convenience between EU citizens and
non-EU nationals in the context of the free movement of EU citizens (Directive
2004/38/EC) and not between two non-EU nationals in the context of Directive
2003/86/EC. Nevertheless, given the parallels with the operational aspects of
combatting potential abuses and fraud of the right to family reunification,
this handbook may, mutatis mutandis, be referred to for guidance, where
relevant, in particular on investigation tools and techniques and on
cross-border cooperation.

Given the involvement of organised crime, tackling
marriages of convenience effectively requires an operational response,
entailing police cooperation and the sharing of best practices between
competent national authorities in the appropriate law enforcement fora. To this
end, a specific strategic objective (goal 4) related to marriages of
convenience was included in the EU Policy cycle for organised and serious
international crime, within the framework of the priority relating to the ‘Facilitation
of Illegal Immigration’[97].
The policy cycle priorities are implemented in a multidisciplinary way through
the joint actions of national authorities and Commission agencies, such as
Europol, thus enabling more operational exchanges among Member States on the
different aspects of the broader issue of marriages of convenience linked to
organised crime.

7.4.        Individual
assessment

According to the CJEU, MSs are obliged to
make a balanced and reasonable assessment of all the interests in play, both
when implementing Directive 2003/86 and when examining applications for family
reunification[98].
The CJEU further considers that Article 17 requires  MSs to make a
comprehensive assessment of all relevant factors in each individual case. This
obligation also applies when MSs have made use of the possibility of requiring
evidence of the fulfilment of certain conditions (such as accommodation,
sickness insurance and resources in Article 7), when verifying whether a child
over the age of 12 arriving independently meets a condition for integration
(Article 4(1) in fine), when a child of over 15 submits an application
(Article 4(6)), or when a minimum age for spouses is required (Article 4(5)).
None of these factors taken separately may automatically lead to a decision,
but must enter the equation as one of the relevant factors[99].

Examples of other relevant factors are the
nature and solidity of the person’s family relationships; the duration of his/her
residence in the MS; the existence of family, cultural and social ties with
his/her country of origin; living conditions in the country of origin; the age
of the children concerned; the fact that a family member has been born and/or
raised in the MS; economic, cultural and social ties in the MS; the dependency
of family members; the protection of marriages and/or family relations.

MSs enjoy a wide margin of appreciation
when taking due account of the relevant factors in an individual case. Yet
they are limited by the principles of Article 8 of the European Convention on
Human Rights, Article 7 of the Charter of Fundamental Rights of the European
Union concerning protection of family and respect for family life, and the relevant
case law of the European Court of Human Rights and the CJEU. The following
principles should be respected: all the individual circumstances of a case must
be identified and the weight given to individual and public interests must be
similar to that in comparable cases. Also, the balancing of relevant individual
and public interests must appear reasonable and proportional. MSs should
explicitly state their reasons in decisions rejecting applications[100].

X is a third-country national residing in a MS with her minor daughter.
X wants to be joined by her third-country spouse, but her income does not meet
the requested income threshold in this MS. Does the MS still have to examine
the merits of the case?

Yes, the MS needs to assess all relevant factors in the individual
case, including the income requirement. The MS may require proof that X has
stable and regular resources which are sufficient to maintain herself and the
members of her family, yet the MS is still required to examine the application
in the interests of the child concerned and also with a view to promoting
family life, and avoiding any undermining of the objective and the
effectiveness of the Directive[101].

7.5.        Right
to legal challenge

According to Article 18, MSs are obliged to
grant effective legal remedy against decisions of national authorities. The
Commission emphasises that when implementing Union law, MSs must respect the
provisions of the Charter of Fundamental Rights and must therefore apply the
Directive’s redress provision in conformity with the right to an effective
remedy before a tribunal, as set out in Article 47 of the Charter and the
CJEU’s case law in this matter[102].

This implies that full judicial review must
be available concerning merits and legality. Therefore, decisions may be challenged
not only with regard to the law, but also the facts of a case. The plaintiff is
entitled to a fair and public hearing within a reasonable time by a reviewing
tribunal that is independent, impartial and previously established by law.
Article 47 of the Charter provides effective remedy and a fair trial before a
judicial tribunal, so quasi-judicial or administrative review may not be
adequate.

The Directive explicitly lists the right to
mount a legal challenge against only four possible decisions[103]. However,
the case law of the CJEU provides that effective remedies must also be granted with
regard to any other decisions relating to the restriction of subjective rights
conferred by the Directive. Article 47 of the Charter applies to all rights provided
for in the Directive including, for instance, decisions concerning the
restriction of the right to employment[104]
or the refusal to grant an independent residence title[105]. Any
consequences of a MS’s failure to decide on an application for family
reunification within the stipulated time period, whether an automatic admission
or an effective legal challenge against an automatic rejection, must be
determined by the national legislation of the relevant MS[106]. This
national legislation should ensure an effective procedure for granting relief in
the case of an administrative failure to decide through an administrative
complaint procedure or, in absence of this, a judicial procedure.

The Commission encourages MSs to grant the
right to mount a legal challenge to both the sponsor and his/her family
member(s) to enable the possibility of effective exercise of this right.

[1]       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.

[2]       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.

[3]       http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2012/consulting_0023_en.htm.

[4]       Seventh meeting of the European Integration Forum: Public
Hearing on the Right to Family Reunification of Third-Country Nationals living
in the EU, Brussels, 31 May — 1 June 2012, see http://ec.europa.eu/ewsi/en/policy/legal.cfm#;
Summary Report, see: http://ec.europa.eu/ewsi/UDRW/images/items/static_38_597214446.pdf.

[5]       Case C-540/03, European Parliament v Council of the
European Union, 27 June 2006, para 60.

[6]       By analogy with Case C-540/03, European Parliament v
Council of the European Union, 27 June 2006, paras 54, 59, 61-62.

[7]       Case C-578/08, Chakroun, 4 March 2010, para 43.

[8]       Case C-578/08, Chakroun, 4 March 2010, para 44.

[9]       'Third-country national' means any person who is not an EU
citizen and who is not a person enjoying the right of free movement under Union
law.

[10]     Article 2 (a)-(d).

[11]     Article 2(e) of the Directive and Article 1(2)(a) of Council
Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for
residence permits for third-country nationals, as amended by Council Regulation
(EC) No 380/2008 of 18 April 2008.

[12]     For instance, if the residence permit it is linked to
employment, the assessment needs to take into account all circumstances related
to the individual situation, such as the nature of the employment, the economic
situation of the industry concerned, the intentions of the employer and
employee, and should not be reduced to only considering the employment contract
that is potentially renewable.

[13]     By analogy with Case C-578/08, Chakroun, 4 March 2010, para 43.

[14]     Case C-540/03, European Parliament v Council of the European
Union, 27 June 2006, para 60.

[15]     See Article 2, point 9 and 11(b), Council Regulation (EC) No
2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No 1347/2000.

[16]     For instance, when a sponsor or his/her spouse does not have
sole custody and the person sharing custody refuses to give agreement or cannot
be found.

[17]     See Council doc. no. 6504/00, p. 5, note 7.

[18]     Directive of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member
States (OJ L 158, p. 77).

[19]     See in the context of the Free Movement Directive: Case 327/82,
Ekro, 18 January 1984, para 11; Case C-316/85, Lebon, 18 June
1987, para 21; Case C-98/07, Nordania Finans and BG Factoring, 6 March
2008, para 17; and Case C-523/07, A, April 2009, para 34; Case C-83/11, Rahman
and Others, 5 September 2012, para 24.

[20]     Under the Free Movement Directive MSs
have an obligation to promote reunification with ascendants while under the
Family Reunification Directive reunification for ascendants is a derogation
which is only allowed if certain conditions are met.

[21]     By analogy with Case C-316/85, Lebon, 18 June 1987, para
21-22; Case C-200/02, Zhu and Chen, 9 October 2004, para 43; C-1/05, Jia,
9 January 2007, paras 36-37; and Case C-83/11, Rahman and Others, 5
September 2012, paras 18-45; Cases C-356/11 and C-357/11, O. & S., 6
December 2012, para 56.

[22]     By analogy with Case C-83/11, Rahman and Others, 5
September 2012, paras 23.

[23]     By analogy with Case C-1/05, Jia, 9 January 2007, para
37.

[24]     The test of dependency should primarily be whether, in the
light of their personal circumstances, the financial means of the family
members permit them to live at the minimum level of subsistence in the country
of their normal residence (AG Geelhoed in case C-1/05, Jia, 9 January
2007, para 96).

[25]     By analogy with Case C-316/85, Lebon, 18 June 1987, para
21-22.

[26]     By analogy with Case C-83/11, Rahman and Others, 5
September 2012, paras 36-40.

[27]     By analogy with Case C-578/08, Chakroun, 4 March 2010,
para 43.

[28]     By analogy with Case C-578/08, Chakroun, 4 March 2010,
para 48.

[29]     By analogy with Case C-540/03, European Parliament v Council
of the European Union, 27 June 2006, paras 99-101.

[30]     Article 3(5) explicitly foresees that MSs have the possibility
to adopt or maintain more favourable conditions.

[31]     MSs may consider, for instance, derogations in the case of
new-born children, third-country nationals who are exempted from a visa, a
situation where it is considered in the best interests of minor children, a
relationship that predates the entry and where the partners have lived together
for a considerable time, humanitarian reasons, etc. These examples are not
exhaustive and always depend on the individual case.

[32]     By analogy with Case C-508/10, European Commission v Kingdom
of the Netherlands, 26 April 2012, paras 62, 64-65.

[33]     By analogy with Case C-508/10, European Commission v Kingdom
of the Netherlands, 26 April 2012, paras 69-70, 74 and 79.

[34]     By analogy with Case C-508/10, European Commission v Kingdom
of the Netherlands, 26 April 2012, para 77.

[35]     By analogy with Case C-578/08, Chakroun, 4 March 2010,
para 43.

[36]     See Article 18.

[37]     While the context, purpose and legal regime of Directive
2004/38/EC is not the same, the case law referred to in section 3 of the 2009
guidelines on the Free Movement Directive (COM(2009) 313 final, pp. 10-14),
may, mutatis mutandis, serve as background for MSs and national courts.

[38]     Article 18 of Council Directive 2003/109/EC of 25 November 2003
concerning the status of third-country nationals who are long-term residents.

[39]     Case C-578/08, Chakroun, 4 March 2010, para 43; Cases
C-356/11 and C-357/11, O. & S., 6 December 2012, para 74.

[40]     Cases C-356/11 and C-357/11, O. & S., 6 December
2012, para 82.

[41]     Case C-578/08, Chakroun, 4 March 2010, para 46; See by
analogy Case C-140/12, Brey, 19 September 2013, para 61.

[42]     Case C-578/08, Chakroun, 4 March 2010, para 45.

[43]     Case C-578/08, Chakroun, 4 March 2010, para 49.

[44]     Cases C-356/11 and C-357/11, O. & S., 6 December
2012, para 73; Case C-578/08, Chakroun, 4 March 2010, para 52.

[45]     Case C-578/08, Chakroun, 4 March 2010, paras 43 and 47.

[46]     Case C-578/08, Chakroun, 4 March 2010, para 48.

[47]     Cases C-356/11 and C-357/11, O. & S., 6 December
2012, para 72.

[48]     In contrast, at the moment of renewal of the residence permit
Article 16(1)(a) imposes an obligation on the MS to take into account the
contributions of the family members to the household income if the sponsor does
not have sufficient resources without recourse to the social assistance system.
Since there is no explicit provision forbidding this MSMSs may also take the
contributions of the family members into account at the moment of application
for the first residence permit.

[49]     Case C-578/08, Chakroun, 4 March 2010, paras 64-66.

[50]     On integration see the Common Basic Principles for Immigrant
Integration Policy in the European Union, Council of the European Union, 2618th
Council Meeting, Justice and Home Affairs, of 19 November 2004, 14615/04
(Presse 321); and the Communication From The Commission To The European
Parliament, The Council, The European Economic And Social Committee And The
Committee Of The Regions of 20 July 2011 on the European Agenda for the
Integration of Third-Country Nationals, COM(2011) 455 final.

[51]     Case C-578/08, Chakroun, 4 March 2010, para 43.

[52]     The purpose of this stand-still clause is to reflect the
children’s capacity for integration at early ages (recital 12).

[53]     The legality of such distinction between different categories
of people was confirmed in Case C-540/03, European Parliament v Council of
the European Union, 27 June 2006, para 75.

[54]     Statistics and qualitative policy impact evaluations may
constitute indications that certain measures constitute factual barriers to
family reunification.

[55]     The automatic refusal of family reunification as a result of a
failed integration examination could amount to a violation of Article 17,
Article 5(5) and Article 8 ECHR.

[56]     The only situation in which integration problems may result in
a refusal is found in Article 4(1) last subparagraph in case the MS has
verified that a condition for integration has not been met.

[57]     Article 17 and Article 5(5).

[58]     Case C-540/03, European Parliament v Council of the European
Union, 27 June 2006, paras 99-101.

[59]     Case C-540/03, European Parliament v Council of the European
Union, 27 June 2006, paras 97-98.

[60]     The ‘waiting period’ is an optional
requirement for exercising the right to family reunification, while the
‘examination period’ is a timeframe foreseen to allow MSMSs to process and
examine applications.

[61]     Article 3(1).

[62]     Case C-578/08, Chakroun, 4 March 2010, paras 59-64.

[63]     By analogy with Case C-508/10, European Commission v Kingdom
of the Netherlands, 26 April 2012, paras 69 and 79.

[64]     See Recital 15.

[65]     By analogy with Case C-540/03, European Parliament v Council
of the European Union, 27 June 2006, para 60.

[66]     By analogy with Case C-578/08, Chakroun, 4 March 2010,
para 43.

[67]     Recital 8.

[68]     Difficulties such as the often lengthy process of tracing of
family members, providing documentation, and obtaining official documents,
dealing with (potentially hostile) authorities in their country of origin, etc.
within a limited timeframe.

[69]     In respect of applications concerning the nuclear family
members referred to in Article 4(1).

[70]     By analogy with Cases C-356/11 and C-357/11, O. & S.,
6 December 2012, para 81; Case C-540/03, European Parliament v Council of
the European Union, 27 June 2006, paras 62-64.

[71]     By analogy with Case C-540/03, European Parliament v Council
of the European Union, 27 June 2006, paras 66, 88, 99 and 100.

[72]     It should be kept in mind that DNA testing cannot prove
marriage and extended or dependent family members, especially in cases of
adoption, is not always affordable or available in locations accessible to
refugees or their family members, and may cause significant delays in some
cases.

[73]     UN High Commissioner for Refugees (UNHCR), UNHCR Note on DNA
Testing to Establish Family Relationships in the Refugee Context, June 2008,
available at: http://www.refworld.org/docid/48620c2d2.html.

[74]     By analogy with Case C-508/10, European Commission v Kingdom
of the Netherlands, 26 April 2012, paras 69 and 79.

[75]     The return by a State, in any manner whatsoever, of an
individual to the territory of another State in which he or she may be
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion; or where there is a serious risk
that he or she would be subjected to the death penalty, torture or other
inhuman or degrading treatment or punishment.

[76]     Cf. Article 17.

[77]     In accordance with Article 28 of the 1951 Convention relating
to the Status of Refugees.

[78]     Council Directive 2001/55/EC explicitly entitles beneficiaries
of temporary protection to reunite with their family members.

[79]     Directive 2011/95/EU of the European Parliament and of the
Council of 13 December 2011 on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection,
for a uniform status for refugees or for persons eligible for subsidiary
protection, and for the content of the protection granted, OJ L 337,
20.12.2011, p. 9.

[80]     Common European Asylum System.

[81]     Case C-256/11, Dereci, 15 November 2011, para 72; Case
C-127/08, Metock, 25 July 2008, para 79.

[82]     Recital 13.

[83]     On the Commission’s EU Immigration Portal and MSs’ national
websites.

[84]     Article 24(2) of the Charter of Fundamental Rights of the EU.

[85]     Articles 7 of the Charter of Fundamental Rights of the EU.

[86]     Articles 24(2) and (3) of the Charter of Fundamental Rights of
the EU.

[87]     Cases C-356/11 and C-357/11, O. & S., 6 December
2012, para 80.

[88]     Case C-540/03, European Parliament v Council of the European
Union, 27 June 2006, para 57.

[89]     Sixth recital of the preamble to the Convention the Convention
on the Rights of the Child.

[90]     Article 9(1) of the Convention the Convention on the Rights of
the Child.

[91]     Article 10(1) of the Convention the Convention on the Rights of
the Child.

[92]     Case C-540/03, European Parliament v Council of the European
Union, 27 June 2006, para 58.

[93]     Article 24(2) of the Charter of Fundamental Rights of the EU.

[94]     Article 24(3) of the Charter of Fundamental Rights of the EU.

[95]     Communication from the Commission to the European Parliament
and the Council of 2 July 2009 on guidance for better transposition and
application of Directive 2004/38/EC on the right of citizens of the Union and
their family members to move and reside freely within the territory of the MSs,
COM(2009) 313 final, pp. 15-17.

[96]     Communication From The Commission To The European Parliament,
The Council, The European Economic And Social Committee And The Committee Of
The Regions of 25 November 2013 on Free movement of EU citizens and their
families: Five actions to make a difference, COM(2013) 837 final.

[97]     Implementation EU Policy cycle for organised and serious
international crime: Multi-annual Strategic Plan related to the EU crime
priority ‘illegal immigration’.

[98]     Cases C-356/11 and C-357/11, O. & S., 6 December
2012, para 81.

[99]     Case C-540/03, European Parliament v Council of the European
Union, 27 June 2006, paras 66, 87, 88, 99 and 100.

[100]    Article 5(4) subpara 3.

[101]    Cases C-356/11 and C-357/11, O. & S., 6 December
2012, para 82.

[102]    Article 51(1) Charter of Fundamental Rights; Case C-540/03, European
Parliament v Council of the European Union, 27 June 2006, para 105; See
also Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat, 3 September
2008; 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.

[103]    The rejection of an application for family reunification, the
refusal to renew a residence permit, the withdrawal of a residence permit, and
the order of removal from the territory of a MS.

[104]    Article
14(2).

[105]    Article
15.

[106]    Article
5(4) subpara 3, 2nd sentence.