Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification
Date: 2003-09-22
Institutions: Council of the European Union
Subjects: EU Member State, EU migration policy, family migration, foreign national, rights of aliens

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COUNCIL DIRECTIVE 2003/86/EC

of 22 September 2003

on the right to family reunification

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 63(3)(a) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the European Economic and
Social Committee (3),

Having regard to the opinion of
Regions (4),

the Committee of

the

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 adop-
tion of measures aimed at ensuring the free movement
in conjunction with flanking measures
of persons,
relating to external border controls, asylum and immi-
gration, and for the adoption of measures relating to
asylum, immigration and safeguarding the rights of third
country nationals.

(2)

(3)

Measures concerning family reunification should be
adopted in conformity with the obligation to protect the
family and respect family life enshrined in many instru-
law. This Directive respects the
ments of international
fundamental rights and observes the principles recog-
nised in particular in Article 8 of the European Conven-
tion for the Protection of Human Rights and Funda-
mental Freedoms and in the Charter of Fundamental
Rights of the European Union.

it has in particular stated that

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 admission and residence of third country nationals.
In this context,
the
European Union should ensure fair treatment of third
country nationals residing lawfully on the territory of
the Member States and that a more vigorous integration
policy should aim at granting them rights and obliga-
tions comparable to those of citizens of the European
Union. The European Council accordingly asked the
instruments on the
Council rapidly to adopt the legal
basis of Commission proposals. The need for achieving

(1) OJ C 116 E, 26.4.2000, p. 66, and OJ C 62 E, 27.2.2001, p. 99.
(2) OJ C 135, 7.5.2001, p. 174.
(3) OJ C 204, 18.7.2000, p. 40.
(4) OJ C 73, 26.3.2003, p. 16.

(4)

(5)

(6)

(7)

(8)

the objectives defined at Tampere have been reaffirmed
by the Laeken European Council on 14 and 15
December 2001.

Family reunification is a necessary way of making family
life possible. It helps to create sociocultural stability facil-
itating the integration of third country nationals in the
Member State, which also serves to promote economic
and social cohesion, a fundamental Community objective
stated in the Treaty.

Member States should give effect to the provisions of
this Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic characteris-
religion or beliefs, political or other
tics,
opinions, membership of a national minority, fortune,
birth, disabilities, age or sexual orientation.

language,

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.

Member States should be able to apply this Directive
also when the family enters together.

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

(9)

Family reunification should apply in any case to
members of the nuclear family, that is to say the spouse
and the minor children.

(10)

It is for the Member States to decide whether they wish
to authorise family reunification for relatives in the
direct ascending line, adult unmarried children, unmar-
ried or registered partners as well as, in the event of a
polygamous marriage, minor children of a further
spouse and the
sponsor. Where a Member State
authorises family reunification of these persons, this is
without prejudice of the possibility, for Member States
which do not recognise the existence of family ties in
the cases covered by this provision, of not granting to
the said persons the treatment of family members with
regard to the right to reside in another Member State, as
defined by the relevant EC legislation.

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(11)

(12)

The right to family reunification should be exercised in
proper compliance with the values and principles recog-
nised by the Member States, in particular with respect to
the rights of women and of children; such compliance
justifies
restrictive measures
against applications for family reunification of polyga-
mous households.

the possible taking of

The possibility of limiting the right to family reunifica-
tion of children over the age of 12, whose primary resi-
dence is not with the sponsor, is intended to reflect the
children's capacity for integration at early ages and shall
ensure that they acquire the necessary education and
language skills in school.

(17)

(18)

In accordance with Articles 1 and 2 of the Protocol on
the position of the United Kingdom and Ireland, annexed
to the Treaty on European Union and to the Treaty
establishing the European Community and without
prejudice to Article 4 of the said Protocol these Member
States are not participating in the adoption of this Direc-
tive and are not bound by or subject to its application.

In accordance with Article 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on
European Union and the Treaty
establishing the
European Community, Denmark does not take part in
the adoption of this Directive, and is not bound by it or
subject to its application,

(13) A set of rules governing the procedure for examination
of applications for family reunification and for entry and
residence of family members 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 order
to offer appropriate legal certainty to those concerned.

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

General provisions

Article 1

(14)

(15)

(16)

Family reunification may be refused on duly justified
grounds.
In particular, the person who wishes to be
granted family reunification should not constitute a
threat to public policy or public security. The notion of
public policy may cover a conviction for committing a
serious crime. In this context it has to be noted that the
notion of public policy and public security covers also
cases in which a third country national belongs to an
association which supports terrorism, supports such an
association or has extremist aspirations.

The integration of family members should be promoted.
For that purpose, they should be granted a status inde-
pendent of that of the sponsor, in particular in cases of
breakup of marriages and partnerships, and access to
education, employment and vocational training on the
same terms as the person with whom they are reunited,
under the relevant conditions.

Since the objectives of the proposed action, namely the
establishment 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
and effects of the action, be better achieved by the
Community, the Community may adopt measures,
in
accordance with the principle of subsidiarity as set out
in Article 5 of the Treaty. In accordance with the prin-
ciple of proportionality as set out in that Article, this
Directive does not go beyond what is necessary in order
to achieve those objectives.

The purpose of this Directive is to determine the conditions for
the exercise of the right to family reunification by third country
nationals residing lawfully in the territory of
the Member
States.

Article 2

For the purposes 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;

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

(c) ‘sponsor’ means a third country national residing lawfully
in a Member State and applying or whose family members
apply for family reunification to be joined with him/her;

(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 any authorisation issued by the
authorities of a Member State allowing a third country
national to stay legally in its territory, in accordance with
the provisions of 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 (1);

(1) OJ L 157, 15.6.2002, p. 1.

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(f) ‘unaccompanied minor’ means third country nationals or
stateless persons below the age of eighteen, who arrive on
the territory of the Member States unaccompanied by an
adult responsible by law or custom, and for as long as they
are not effectively taken into the care of such a person, or
minors who are left unaccompanied after they entered the
territory of the Member States.

(b) the minor children of the sponsor 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 obliga-
tions;

Article 3

1.
This Directive shall apply where the sponsor is holding a
residence permit issued by a 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 sponsor is:

(a) applying for recognition of refugee status whose applica-

tion has not yet given rise to a final decision;

(b) 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) authorised to reside in a Member State on the basis of a
subsidiary form of protection in accordance with interna-
tional obligations, national legislation 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 agreements between the Commu-
nity or the Community and its Member States, on the one
hand, and third countries, on the other;

(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.

This Directive shall not affect

5.
the possibility for the
Member States to adopt or maintain more favourable provi-
sions.

CHAPTER II

Family members

Article 4

1.
The Member States shall authorise the entry and resi-
dence, pursuant to this Directive and subject to compliance
with the conditions laid down in Chapter IV, as well as in
Article 16, of the following family members:

(a) the sponsor's spouse;

(c) the minor children including adopted children of

the
sponsor where the sponsor has custody and the children
are dependent on him or her. Member States may authorise
the reunification of children of whom custody is shared,
provided the other party sharing custody has given his or
her agreement;

(d) the minor children including adopted children of

the
spouse where the spouse has custody and the children are
dependent on him or her. Member States may authorise the
reunification of children of whom custody is
shared,
provided the other party sharing custody has given his or
her agreement.

The minor children referred to in this Article 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 and
arrives independently from the rest of his/her family,
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 existing legislation on the
date of implementation of this 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:

(a) first-degree relatives in the direct ascending line of the
sponsor or his or her spouse, where they are dependent on
in the
them and do not enjoy proper family support
country of origin;

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

The Member States may, by law or regulation, authorise
3.
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 sponsor is in a duly attested stable long-term rela-
tionship, or of a third country national who is bound to the
sponsor by a registered partnership in accordance with Article
5(2), and of the unmarried minor children, including adopted
children, as well as the adult unmarried children who are objec-
tively unable to provide for their own needs on account of
their state of health, of such persons.

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Member States may decide that registered partners are to be
treated equally as spouses with respect to family reunification.

4.
In the event of a polygamous marriage, where the
sponsor already has a spouse living with him in the territory of
the Member State concerned shall not
a Member State,
authorise the family reunification of a further spouse.

By way of derogation from paragraph 1(c), Member States may
limit the family reunification of minor children of a further
spouse and the sponsor.

5.
In order to ensure better integration and to prevent
forced marriages Member States may require the sponsor and
his/her spouse to be of a minimum age, and at maximum 21
years, before the spouse is able to join him/her.

6.
By way of derogation, Member States may request that
the applications concerning family reunification of minor chil-
dren have to be submitted before the age of 15, as provided for
by its existing legislation on the date of the implementation of
this Directive. If the application is submitted after the age of
15, the Member States which decide to apply this derogation
shall authorise the entry and residence of such children on
grounds other than family reunification.

CHAPTER III

Submission and examination of the application

Article 5

1. Member States shall determine whether, in order to exer-
cise the right to family reunification, an application for entry
and residence shall be submitted to the competent authorities
of the Member State concerned either by the sponsor or by the
family member or members.

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

If appropriate, in order to obtain evidence that a family rela-
tionship exists, Member States may carry out interviews with
the sponsor and his/her family members and conduct other
investigations that are found to be necessary.

When examining an application concerning the unmarried
partner of
the sponsor, Member States shall consider, as
evidence of the family relationship, factors such as a common
child, previous cohabitation, registration of the partnership and
any other reliable means of proof.

The competent authorities of the Member State shall give
4.
the person, who has submitted the application, written notifica-
tion 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.

Reasons shall be given for the decision rejecting the applica-
tion. Any 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.

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,
public security or public health.

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

When taking the relevant decision, the Member State shall
consider, besides Article 17, the severity or type of offence
against public policy or public security committed by the
family member, or the dangers that are emanating from such
person.

3.
Renewal of the residence permit may not be withheld and
removal from the territory may not be ordered by the compe-
tent authority of the Member State concerned on the sole
ground of illness or disability suffered after the issue of the resi-
dence permit.

Article 7

application for

1. When the
reunification is
submitted, the Member State concerned may require the person
who has submitted the application to provide evidence that the
sponsor has:

family

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

(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;

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

(b) sickness insurance in respect of all risks normally covered
for its own nationals in the Member State concerned for
himself/herself and the members of his/her family;

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(c) stable and regular resources which are sufficient to main-
tain himself/herself and the members of his/her family,
without recourse to the social assistance system of the
Member State concerned. Member States shall evaluate
these resources by reference to their nature and regularity
and may take into account the level of minimum national
wages and pensions as well as the number of
family
members.

2. Member States may require third country nationals to
comply with integration measures, in accordance with national
law.

With regard to the refugees and/or family members of refugees
referred to in Article 12 the integration measures referred to in
the first subparagraph may only be applied once the persons
concerned have been granted family reunification.

Article 8

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

By way of derogation, where the legislation of a Member State
relating to family reunification in force on the date of adoption
of this Directive takes into account its reception capacity, the
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.

CHAPTER V

Family reunification of refugees

Article 9

This Chapter shall apply to family reunification of refu-

1.
gees recognised by the Member States.

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

This Chapter is without prejudice to any rules granting

3.
refugee status to family members.

Article 10

If the refugee is an unaccompanied minor, the Member

3.
States:

(a) shall 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) may authorise the entry and residence for the purposes of
family reunification of his/her 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

Article 5 shall apply to the submission and examination

1.
of the application, subject to paragraph 2 of this Article.

2. Where a refugee cannot provide official documentary
evidence of the family relationship, the Member States shall
take into account other evidence, to be assessed in accordance
with national law, of the existence of such relationship. A deci-
sion rejecting an application may not be based solely on the
fact that documentary evidence is lacking.

Article 12

By way of derogation from Article 7, the Member States
1.
to
shall not require the refugee and/or family member(s)
in respect of applications concerning those family
provide,
members referred to in Article 4(1), the evidence that the
refugee fulfils the requirements set out in Article 7.

Without prejudice to international obligations, where family
reunification is possible in a third country with which the
sponsor and/or family member has special links, Member States
may require provision of the evidence referred to in the first
subparagraph.

Member States may require the refugee to meet the conditions
referred to in Article 7(1) if the application for family reunifica-
tion is not submitted within a period of three months after the
granting of the refugee status.

2.
By way of derogation from Article 8, the Member States
shall 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 VI

Entry and residence of family members

1.
Article 4 shall apply to the definition of family members
except that the third subparagraph of paragraph 1 thereof 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.

Article 13

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

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The Member State concerned shall grant

the family
2.
members a first residence permit of at least one year's duration.
This residence permit shall be renewable.

The conditions relating to the granting and duration of
4.
the autonomous residence permit are established by national
law.

The duration of the residence permits granted to the
3.
family member(s) shall in principle not go beyond the date of
expiry of the residence permit held by the sponsor.

Article 14

The sponsor's family members shall be entitled,

1.
same way as the sponsor, to:

in the

(a) access to education;

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

CHAPTER VII

Penalties and redress

Article 16

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

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

(c) access to vocational guidance,

initial and further training

are no longer satisfied.

and retraining.

2. Member States may decide according to national law the
conditions under which family members shall exercise an
employed or self-employed activity. These conditions shall set a
time limit which shall in no case exceed 12 months, during
which Member States may examine the situation of their labour
market before authorising family members to exercise an
employed or self-employed activity.

3. Member States may restrict access to employment or self-
employed activity by first-degree
in the direct
ascending line or adult unmarried children to whom Article
4(2) applies.

relatives

Article 15

Not later than after five years of residence, and provided
1.
that
the family member has not been granted a residence
permit for reasons other than family reunification, the spouse
or unmarried partner and a child who has reached majority
shall be entitled, upon application, if required, to an autono-
mous residence permit, independent of that of the sponsor.

Member States may limit the granting of the residence permit
referred to in the first subparagraph to the spouse or unmarried
partner in cases of breakdown of the family relationship.

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

In the event of widowhood, divorce, separation, or death
3.
of first-degree relatives in the direct ascending or descending
line, an autonomous residence permit may be issued, upon
application, if required, to persons who have entered by virtue
of family reunification. Member States shall lay down provi-
sions ensuring the granting of an autonomous residence permit
in the event of particularly difficult circumstances.

When renewing the residence permit, where the sponsor
has not sufficient resources without recourse to the social
assistance system of the Member State, as referred to in
Article 7(1)(c), the Member State shall take into account the
contributions of
the family members to the household
income;

(b) where the sponsor and his/her family member(s) do not or

no longer live in a real marital or family relationship;

(c) where it is found that the sponsor 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 with-
draw or refuse to renew the family member's residence permits,
where it is shown that:

(a) false or misleading information, false or falsified documents
fraud was otherwise committed or other

were used,
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.

When making an assessment with respect to this point,
Member States may have regard in particular to the fact
that the marriage, partnership or adoption was contracted
after the sponsor had been issued his/her residence permit.

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

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

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Article 17

Article 20

Member States shall take due account of the nature and solidity
of the person's family relationships and the duration of his resi-
dence in the Member State and of the existence of family,
cultural and social ties with his/her country of origin where
they reject an application, withdraw or refuse to renew a resi-
dence permit or decide to order the removal of the sponsor or
members of his family.

Article 18

The Member States shall ensure that the sponsor and/or the
members of his/her family have the right to mount a legal chal-
lenge where an application for family reunification is rejected
or a residence permit is either not renewed or is withdrawn or
removal is ordered.

The procedure and the competence 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

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Direc-
tive by not later than 3 October 2005. They shall forthwith
inform the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such a refer-
ence on the occasion of their official publication. The methods
of making such reference shall be laid down by the Member
States.

Article 21

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Union.

Article 22

This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.

Periodically, and for the first time not later than 3 October
2007, 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.

Done at Brussels, 22 September 2003.

For the Council

The President

F. FRATTINI