Amended proposal for a Council directive on the right to family reunification
Date: 2002-05-02
Institutions: European Commission
Subjects: application of EU law, family migration, foreign national, free movement of persons, immigration

C 203 E/136

EN

Official Journal of the European Communities

27.8.2002

Amended proposal for a Council Directive on the right to family reunification (1)

(2002/C 203 E/23)

COM(2002) 225 final — 1999/0258(CNS)

(Submitted by the Commission on 2 May 2002)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 63 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Whereas:

(1) With a view to the progressive establishment of an area of
freedom, security and justice, the Treaty establishing the
European Community provides both for the adoption of
measures aimed at ensuring the free movement of
persons,
in conjunction with flanking measures relating
to external border controls, asylum and immigration,
and for the adoption of measures relating to asylum,
immigration and safeguarding the rights of third-country
nationals.

in particular,

(2) Article 63(3) of the Treaty provides that the Council is to
adopt measures on immigration policy. Article 63(3)(a)
provides,
is to adopt
that
measures relating to the conditions of entry and residence,
and standards on procedures for the issue by Member
States of
and residence permits,
including those for the purpose of family reunification.

the Council

term visas

long

(3) Measures concerning family reunification must be adopted
in conformity with the obligation to protect the family
and respect family life enshrined in many instruments of
international law. This Directive respects the fundamental
rights and observes the principles recognised in particular
by the Charter of Fundamental Rights of the European
Union.

trends within the Union and of

admission and residence of third-country nationals, to be
based on a common evaluation both of economic and
demographic
the
situation in countries of origin. The European Council
accordingly asked the Council rapidly to adopt decisions
on the basis of Commission proposals. Those decisions
the absorption
were
capacity of each Member State but also their historical
and cultural links with countries of origin.

to take account not only of

(5) In order to evaluate migration flows and to prepare for
the adoption of measures by the Council, the Commission
needs to have access to statistical data and information on
the legal immigration of third-country nationals in each
Member State, and in particular on the number of permits
issued, and on their type and validity; to this end, Member
States must regularly and rapidly make the necessary data
and information available to the Commission.

(6) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, stated that the European
third-country
Union should ensure fair
nationals
the
Member States and that a more vigorous integration
policy should aim at granting them rights and obligations
comparable to those of citizens of the European Union.

residing lawfully on the

treatment of

territory of

(7) The Laeken European Council on 14 and 15 December
2001 reaffirmed its commitment to the policy guidelines
and objectives defined at Tampere and noted that there
was a need for new impetus and guidelines to make up
for delays in some areas.
It confirmed that a genuine
common policy on immigration implied the establishment
of common standards on procedures for family reunifi-
cation and called on the Commission to present a new
amended proposal.

(8) Family reunification is a necessary way of making family
life possible. It helps to create socio-cultural stability facili-
tating the integration of third-country nationals in the
Member State, which also serves to promote economic
and
fundamental Community
objective stated in Article 2 and Article 3(1)(k) of the
Treaty.

cohesion,

social

a

(4) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, acknowledged the need for
harmonisation of national legislation on the conditions for

(1) OJ C 62 E, 27.2.2001, p. 99.

(9) To protect the family and establish or preserve family life,
the material conditions for exercising the right to family
reunification should be determined on the basis of
common criteria.

27.8.2002

EN

Official Journal of the European Communities

C 203 E/137

(10) Special attention should be paid to the situation of
refugees on account of the reasons which obliged them
to flee their country and prevent them from leading a
normal
family life there. More favourable conditions
should therefore be laid down for the exercise of their
right to family reunification.

(11) Family reunification applies to members of the nuclear
family, that is to say the spouse and the minor children.
It is for States to decide whether they wish to extend this
category and authorise family reunification for relatives in
the ascending line, children who are of
full age and
unmarried partners.

family members

(12) A set of rules governing the procedure for examination of
applications for family reunification and for entry and
residence of
should be laid down.
Those procedures should be effective and manageable,
taking account of the normal workload of the Member
States' administrations, as well as transparent and fair, in
certainty to those
order
concerned.

to offer appropriate

legal

(13) The integration of family members should be promoted.
To that end, they should be granted a status independent
of that of the applicant after a period of residence in the
Member State. They must enjoy access to education,
employment and vocational training on the same terms
as the person with whom they are reunited.

(14) Effective, proportionate and dissuasive measures should be
taken to prevent and penalise breaches of the rules and
procedures relating to family reunification.

(15) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
the proposed action, namely the estab-
objectives of
lishment of a right
to family reunification for third-
country nationals to be exercised in accordance with
common rules, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
the action, be better achieved by the
and impact of
Community. This Directive
to the
confines
minimum required to achieve those objectives and does
not go beyond what is necessary for that purpose,

itself

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

General provisions

Article 1

The purpose of this Directive is to determine the conditions in
which the right to family reunification may be exercised by

third-country nationals residing lawfully in the territory of the
Member States.

Article 2

For the purpose of this Directive:

(a)

‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1)
of the Treaty, including stateless persons;

(b) ‘refugee’ means any third-country national or stateless
person enjoying refugee status within the meaning of the
Convention on the Status of Refugees of 28 July 1951, as
amended by the Protocol signed in New York on 31 January
1967;

(c)

‘applicant for reunification’ or ‘applicant’ means either a
third-country national residing lawfully in a Member State
and applying to be joined by members of his family;

(d) ‘family reunification’ means the entry into and residence in
a Member State by family members of a third-country
national residing lawfully in that Member State in order
to preserve the family unit, whether the family relationship
arose before or after the resident's entry;

(e)

‘residence permit’ means an authorisation of whatever type
issued by a Member State which grants right of residence
within its
include
temporary permission to reside in the territory of a
Member State for the purposes of processing an application
for asylum or a residence permit.

territory. This definition shall not

Article 3

1.
This Directive shall apply where the person applying for
reunification is a third-country national residing lawfully in a
Member State and holding a residence permit issued by that
Member State for a period of validity of one year or more who
has reasonable prospects of obtaining the right of permanent
residence, if the members of his or her family are third-country
nationals of whatever status.

2.

This Directive shall not apply where the applicant is:

(a) a third-country national applying for recognition of refugee
status whose application has not yet given rise to a final
decision;

(b) a third-country national authorised to reside in a Member
State on the basis of temporary protection or applying for
authorisation to reside on that basis and awaiting a
decision on his status;

C 203 E/138

EN

Official Journal of the European Communities

27.8.2002

(c) a third-country national authorised to reside in a Member
State on the basis of a subsidiary form of protection in
accordance with international obligations, national
legis-
lation or the practice of the Member States or applying
for authorisation to reside on that basis and awaiting a
decision on his status.

This Directive shall not apply to members of the family

3.
of a Union citizen.

This Directive is without prejudice to more favourable

4.
provisions of:

(a) bilateral

and multilateral

the
Community or the Community and its Member States, on
the one hand, and third countries, on the other;

agreements

between

The minor children referred to in points (b) and (c) must be
below the age of majority set by the law of the Member
State concerned and must not be married.

By way of derogation, where a child is aged over 12 years,
the Member State may, before authorising entry and
residence under this Directive, verify whether he or she
meets a condition for integration provided for by its
this
existing legislation on the date of adoption of
Directive.

2.
The Member States may, by law or regulation, authorise
the entry and residence, pursuant to this Directive and subject
to compliance with the conditions laid down in Chapter IV, of
the following family members:

(b) the European Social Charter of 18 October 1961,

the
amended European Social Charter of 3 May 1987 and
the European Convention on the Legal Status of Migrant
Workers of 24 November 1977.

(a)

first-degree relatives in the direct ascending line of the
person applying for reunification or his or her spouse,
where they are dependent on them and do not enjoy
proper family support in the country of origin;

This Directive shall not affect

5.
the possibility for the
Member States to adopt or retain more favourable provisions
for persons to whom it applies.

(b) the adult unmarried children of the applicant or his or her
spouse, where they are objectively unable to provide for
their own needs on account of their state of health.

(2) and (3),

Article 4(1),

6.
the second subparagraph of
Article 7(1)(c) and Article 8 may not have the effect of intro-
ducing less favourable conditions than those which already
exist in each Member State on the date of adoption of this
Directive.

CHAPTER II

Family members

Article 4

The Member States

1.
entry and
shall
residence, pursuant to this Directive and subject to compliance
with the conditions laid down in Chapter IV, of the following
family members:

authorise

the

(a) the applicant's spouse;

(b) the minor children of the applicant and of his/her spouse,
including children adopted in accordance with a decision
taken by the competent authority in the Member State
concerned or a decision which is automatically enforceable
due to international obligations of that Member State or
must be recognised in accordance with international obli-
gations;

(c) the minor children including adopted children of

the
applicant or his/her
them has
custody and the children are dependent on him or her.
Member
reunification of
authorise
children of whom custody is shared, provided the other
party sharing custody has given his or her agreement.

spouse where one of

States may

the

3.
The Member States may, by law or regulation, authorise
the entry and residence, pursuant to this Directive and subject
to compliance with the conditions laid down in Chapter IV, of
the unmarried partner, being a third-country national, with
whom the applicant
is in a duly attested stable long-term
relationship, or of a third-country national who is bound to
the applicant by a registered partnership in accordance with
including
Article 5(2), and the unmarried minor children,
adopted children, of such persons.

In the event of a polygamous marriage, where the
4.
applicant already has a spouse living with him in the
territory of a Member State,
the Member State concerned
shall not authorise the entry and residence of a further
spouse, nor the children of such spouse, without prejudice to
the provisions of the 1989 Convention on the Rights of the
Child.

5. Member States may require the applicant and his/her
spouse to be of a minimum age, and in any event the age of
legal majority, before the spouse is able to join him/her.

CHAPTER III

Submission and examination of the application

Article 5

1. Member States shall determine whether,
to
exercise the right to family reunification, an application for
entry and residence shall be submitted to the competent auth-
orities of the Member State concerned either by the applicant
or by the family member or members.

in order

27.8.2002

EN

Official Journal of the European Communities

C 203 E/139

The

family
application shall be
2.
member(s)'
travel documents and documentary evidence of
the family relationship and of compliance with the conditions
laid down in Articles 4 and 6 and, where applicable, 7 and 8.

accompanied by

The grounds of public policy or domestic security must
3.
be based exclusively on the personal conduct of the family
member concerned.

In order to obtain evidence that a family relationship exists,
Member States may carry out interviews with the applicant and
his/her family members and conduct other investigations that
are found necessary.

Renewal of the residence permit may not be withheld and
4.
removal
from the territory may not be ordered by the
competent authority of the Member State concerned on the
sole ground of illness or disability suffered after the issue of
the residence permit.

When examining an application concerning the unmarried
the applicant, Member States shall consider, as
partner of
a
evidence of
common child, previous cohabitation, registration of the part-
nership and any other reliable means of proof.

family relationship,

such as

factors

the

The application shall be submitted when the family
3.
members are outside the territory of the Member State in
which the applicant resides.

in appropriate
By way of derogation, a Member State may,
circumstances, accept an application submitted when the
family members are already in its territory.

The competent authorities of the Member State shall give
4.
the applicant/family member(s) written notification of
the
decision as soon as possible and in any event no later than
nine months from the date on which the application was
lodged.

In exceptional circumstances linked to the complexity of the
examination of the application, the time limit referred to in the
first subparagraph may be extended, but shall
in no case
exceed twelve months.

shall be given for

Reasons
the decision rejecting the
application. The consequences of no decision being taken by
the end of the period provided for in the first subparagraph
shall be determined by the national legislation of the relevant
Member State.

5. When examining an application, the Member States shall
have due regard to the best interests of minor children,
in
accordance with the 1989 Convention on the Rights of the
Child.

CHAPTER IV

Requirements for the exercise of the right

to family

reunification

Article 6

1.
The Member States may reject an application for entry
and residence of family members on grounds of public policy,
domestic security or public health.

Article 7

application for

reunification is
1. When the
submitted,
ask the
State
applicant or family member(s) to provide evidence that the
applicant has:

concerned may

the Member

family

(a) 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 Member State
concerned;

(b) sickness insurance in respect of all risks in the Member
State concerned for himself and the members of his family;

(c) stable resources which are higher than or equal to the level
of resources below which the Member State concerned may
grant social assistance. Where this subparagraph cannot be
applied, resources must be no less than the level of the
minimum social security pensions paid by the Member
State. The stable resources criterion shall be evaluated by
reference to the nature and regularity of the resources.

The Member State may require the applicant to satisfy the
in paragraph 1 when renewing the
conditions set out
residence permits of his family members for the first time.

Where the applicant does not meet the said conditions,
Member States shall take into account family members'
contributions to the household income.

The Member States may set the conditions relating to
2.
accommodation, sickness insurance and resources provided
for by paragraph 1 solely in order
the
applicant for family reunification will be able to satisfy the
needs of his
further
recourse to public funds. They may not have the effect of
discriminating between nationals of
the Member State and
third-country nationals.

reunified family members without

to ensure that

2. Member States may withdraw or refuse to renew a family
member's residence permit on grounds of public policy or
domestic security.

The Member States may require the applicant to have stayed
lawfully in their territory for a period not exceeding two years,
before having his family members join him.

Article 8

C 203 E/140

EN

Official Journal of the European Communities

27.8.2002

By way of derogation, where the legislation of a Member State
relating to family reunification in force on the date of adoption
of
the
this Directive has regard for its reception capacity,
Member State may provide for a waiting period of no more
than three years between submission of the application for
family reunification and the issue of a residence permit to
the family members.

the refugee
referred to in Article 4(1),
fulfils the requirements of accommodation, sickness insurance
and stable resources.

the evidence that

By way of derogation from Article 8, the Member States
2.
may not require the refugee to have resided in their territory
for a certain period of
time, before having his/her family
members join him/her.

CHAPTER V

Family reunification of refugees

CHAPTER VI

Article 9

Entry and residence of family members

This Chapter

1.
refugees.

shall apply to family reunification of

Article 13

2. Member States may confine the application of
this
Chapter to refugees whose family relationships predate their
refugee status.

Article 10

1.
Article 4 shall apply to the definition of family members,
except that the third subparagraph of paragraph 1(c) shall not
apply to the children of refugees.

2.
The Member States may authorise family reunification of
other family members not referred to in Article 4, if they are
dependent on the refugee.

1.
As soon as the application for family reunification has
been accepted, the Member State concerned shall authorise the
In that regard,
entry of
Member States shall grant such persons every facility for
obtaining the requisite visas.

the family member or members.

The Member State concerned shall grant

the family
2.
members a renewable residence permit of the same duration
as that held by the applicant.

If the applicant has long-term resident status, the Member
States shall
issue to family members a renewable residence
permit of at least one-year's duration, until they satisfy the
conditions laid down by Directive . . ./. . ./EC for obtaining
long-term resident status in their own right.

If the refugee is an unaccompanied minor, the Member

3.
States shall:

Article 14

(a) authorise the entry and residence for the purposes of family
reunification of his/her first-degree relatives in the direct
ascending line without applying the conditions laid down
in Article 4(2)(a);

(b) authorise the entry and residence for the purposes of family
reunification of his legal guardian or any other member of
the family, where the refugee has no relatives in the direct
ascending line or such relatives cannot be traced.

Article 11

Subject

1.
submission and examination of the application.

to paragraph 2, Article 6 shall apply to the

2. Where a refugee cannot provide documentary evidence of
the family relationship, the Member States shall have regard to
other evidence of the existence of such relationship. A decision
rejecting an application may not be based solely on the fact
that documentary evidence is lacking.

Article 12

The applicant's family members shall be entitled, in the

1.
same way as the applicant, to:

(a) access to education;

(b) access to employment and self-employed activity;

(c) access to vocational guidance,

initial and further training

and retraining.

2. Member States may restrict access to employment or self-
employed activity by relatives in the ascending line or children
of full age to whom Article 4(2) applies.

Article 15

1.
At the latest after five years of residence, and provided
the family relationship still exists, the spouse or unmarried
reached majority shall be
partner and a child who has
entitled to an autonomous residence permit,
independent of
that of the applicant.

1.
By way of derogation from Article 7, the Member States
shall not require the refugee/family member(s) to provide, in
respect of applications concerning those family members

2.
The Member States may issue an autonomous residence
permit to children of full age and to relatives in the ascending
line to whom Article 4(2) applies.

27.8.2002

EN

Official Journal of the European Communities

C 203 E/141

In the event of widowhood, divorce, separation, or death
3.
of relatives in the ascending or descending line, an independent
residence permit may be issued to persons who have entered
by virtue of family reunification. Member States shall lay down
provisions ensuring the granting of an independent residence
permit in the event of particularly difficult circumstances.

of his residence in the Member State and to the existence of
family, cultural and social ties with his country of origin where
they reject an application, withdraw or refuse to renew a
residence permit or decide to order
the
applicant or members of his family.

the removal of

CHAPTER VII

Penalties and redress

Article 16

1. Member States may also reject an application for entry
if
and residence for the purpose of family reunification, or,
appropriate, withdraw or refuse to renew a family member's
residence permit, in the following circumstances:

(a) where the conditions laid down by this Directive are not or

are no longer satisfied;

(b) where the applicant and his family member(s) do not or no

longer live in a full marital or family relationship.

(c) where it

is found that

the applicant or the unmarried
partner is married or is in a stable long-term relationship
with another person.

2. Member States may also reject an application for entry
and residence for the purpose of
family reunification, or
withdraw or refuse to renew the family member's residence
permits, where 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;

(b) the marriage, partnership or adoption was contracted for
the sole purpose of enabling the person concerned to enter
or reside in a Member State.

3.
The Member States may withdraw or refuse to renew the
residence permit of a family member where the applicant's
residence comes to an end and the family member does not
yet enjoy the autonomous right of residence under Article 15.

conduct

States may

and
4. Member
specific
there is
inspections where there is reason to suspect
fraud or a marriage, partnership or adoption of convenience
as defined by paragraph 2. Specific checks may also be
undertaken on the occasion of
family
members' residence permit.

checks
that

renewal of

the

Article 18

The Member States shall ensure that the applicant and/or the
members of his/her family have the de facto and de jure right to
apply to the courts where an application for family reunifi-
cation is rejected or a residence permit is either not renewed
or is withdrawn or removal is ordered.

The procedure according to which the right referred to in the
first subparagraph is exercised shall be established by the
Member States concerned.

CHAPTER VIII

Final provisions

Article 19

From time to time, and for the first time no later than two
years after the deadline set by Article 20, the Commission shall
report to the European Parliament and the Council on the
application of this Directive in the Member States and shall
propose such amendments as may appear necessary. These
proposals for amendments shall be made by way of priority
in relation to Articles 3, 4, 7, 8 and 13.

Article 20

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
later than (31 December 2003). They shall
Directive not
forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

Article 21

This Directive shall enter into force on the (. . .) day following
its publication in the Official Journal of the European Communities.

Article 17

Member States shall have proper regard for the nature and
solidity of the person's family relationships and the duration

Article 22

This Directive is addressed to the Member States.