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
Date: 2008-10-08
Institutions: European Commission
Subjects: EU Member State, EU migration policy, family migration, foreign national, report, rights of aliens

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 8.10.2008 
COM(2008) 610 final 

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 

EN 

   EN 

 
 
 
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 

1. 

INTRODUCTION 

On 22 September 2003 the Council adopted Directive 2003/86/EC setting out common rules 
on the exercise of the right to family reunification by third-country nationals residing lawfully 
in Member States (hereinafter “the Directive”). It applies to all Member States except IE, DK 
and the UK1. 

This report meets the Commission's obligation under Article 19 of the Directive and follows 
the Communication on "A Common Immigration Policy for Europe" of 17 June 20082, where 
the  Commission  announced  to  assess  the  implementation.  It  summarises  Member  States’ 
transposition  of  the  Directive,  identifies  possible  problems  and  gives  recommendations  on 
proper application. 

The report is based on two Commission studies on the implementation of the Directive3 and 
on information from other studies4. In accordance with Article 3(3) of the Directive, it does 
not  deal  with  the  situation  of  third-country  nationals  who  are  members  of  the  family  of  a 
Union citizen. 

2. 

HISTORICAL AND POLITICAL CONTEXT 

The  Directive  forms  the  first  set  of  measures  based  on  Article  63(3)(a)  of  the  Treaty 
establishing  the  European  Communities  on  third-country  nationals’  entry  and  residence 
conditions. As the adopted text underwent some substantial -often more restrictive- changes 
compared  to  the  Commission’s  original  proposal  and  came  closer  to  the  existing  national 
rules, it was considered only as a first step harmonisation. 

For the past 20 years family reunification has been one of the main sources of immigration to 
the  EU.  In  many  Member  States  today,  family  reunification  accounts  for  a  large  (and  still 
increasing) share of legal migration. Discussions on how to manage more effectively the large 
inflow  of  migrants  under  family  reunification  led  to  a  number  of  policy  changes,  many 
restrictive in nature, in some Member States. These changes need to be in line with the right 
to family reunification as set out in the Directive.  

1 
2 
3 
4 

In this report “Member States” means the Member States bound by the Directive. 
COM(2008) 359. 
Studies conducted by the Odysseus network (2007) and by the European Migration Network (2008). 
Centre for Migration Law, Nijmegen 2007, and a study requested by the EP, March 2008, C. Adam and 
A. Devillard, IOM. Other studies such as the first report published in June 2008 by the EU Agency for 
Fundamental  Rights  on  Homophobia  and  Discrimination  on  grounds  of  sexual  orientation  refer  to 
specific issues regarding family reunification.  

EN 

2 

   EN 

 
                                                 
2.1.  Monitoring and state of transposition 

Member  States  had  to  complete  transposition  by  3  October  20055.  Commission  officials 
assisted Member States in this process through regular meetings with national experts. 

Following expiry of the transposition deadline, infringement procedures were started against 
19  Member  States  for  non-communication  of  their  transposition  measures.  Subsequently,  in 
accordance with Article 226 of the Treaty, the Commission addressed ten reasoned opinions. 
Decisions  to  bring  cases  before  the  European  Court  of  Justice  (ECJ)  were  taken  for  four 
Member States: three were withdrawn and a judgment was given for one6. 

Out  of  the  24  Member  States  bound  by  the  Directive,  currently  only  one  (LU)  is  still  in 
process  of  transposition7  and  another  (ES)  has  not  yet  included  a  formal  explicit  reference 
(harmonisation clause) in its national legislation. 

2.2. 

ECJ Case C-540/03 

The European Parliament brought an action against the Council to annul some provisions in 
the Directive. It argued that the provisions enabling Member States to restrict in some cases 
the right to family reunification (Article 4(1) last indent, Article 4(6) and Article 8) are non-
compliant  with  the  right  to  respect  for  family  life  and  the  principle  of  non-discrimination 
enshrined in Articles 8 and 14 of the European Convention on Human Rights (ECHR). 

In its judgment of 27 June 2006, the ECJ ruled that the Directive does not run counter to the 
fundamental right to respect for family life, the best interests  of children or  the principle of 
non-discrimination on age grounds. The ruling has implications for how Member States must 
implement the Directive. In particular, the Court stressed that fundamental rights are binding 
on  Member  States  when  they  implement  Community  rules,  and  that  they  must  apply  the 
Directive’s  rules  in  a  manner  consistent  with  the  requirements  governing  protection  of 
fundamental  rights,  notably  regarding  family  life  and  the  principle  of  the  best  interests  of 
minor children8. 

3. 

GENERAL PROVISIONS 

3.1. 

Right to family reunification (Article 1) 

The  Directive  recognises  the  existence  of  a  right  to  family  reunification.  Case  540/039 
explicitly  confirms  the  existence  of  this  right,  stating  that  the  Directive  imposes  a  precise 
positive obligation on Member States, requiring them in cases determined by the Directive to 
authorise family reunification of certain members of the sponsor’s family and leaving them no 
leeway in this. 

5 
6 
7 
8 
9 

RO and BG had to implement the Directive’s provisions as from their accession to the EU. 
C-57/07, judgment of 6.12.2007, Commission v Luxembourg. 
For Luxembourg, the draft legislation was taken as a basis for evaluation. 
Paras 60, 62, 101 and 105 of the judgment. 
Para 60 of the judgment. 

EN 

3 

   EN 

 
                                                 
This subjective right is recognised by all Member States, either explicitly by referring to the 
“right to family reunification” or by using formulations which leave administrations no room 
for manoeuvre in the cases covered by the Directive. 

3.2. 

Scope of application (Article 3) 

•  Who can be a sponsor? 

For  third-country  nationals  to  be  eligible  as  sponsors  for  family  reunification  they  must 
legally  reside  in  a  Member  State,  have  a  residence  permit  valid  for  at  least  one  year 
(irrespective of the title of residence) and have reasonable prospects of obtaining the right of 
permanent residence. 

Member States’ approaches vary in applying this mandatory provision. Most allow for family 
reunification  with  a  temporary  residence  permit  but  require  a  minimum  period  of  residence 
(FR 18 months, ES renewal of the residence permit at least for another year), whilst CZ and 
SE  require  the  permit  to  be  permanent.  Four  Member  States  explicitly  refer  to  having 
reasonable prospects of obtaining the right of permanent residence (CY, MT, LT, LU). 

This is problematic in CY, where there is a general rule of four-year maximum residence after 
which permits are not renewed (except for a person employed by an international company), 
and  thus  third-country  nationals  seem  to  be  excluded  from  the  right  to  apply  for  family 
reunification. 

•  Family members of Union citizens  

Both the sponsor and his/her family member need to be a third country national to fall under 
the  scope  of  the  Directive,  so  the  family  members  of  Union  citizens  are  excluded  from  the 
Directive.  They  are  covered  by  Directive  2004/38/EC10,  which  applies  only  to  those  Union 
citizens who move to or reside in a Member State other than that of which they are a national. 
Hence family reunification of Union citizens residing in the Member State of their nationality 
is not subject to Community law. 

It is therefore up to a Member State to lay down rules on the right of third-country-national 
family members to join its own nationals. If a Member State applies rules for its own citizens 
that are less favourable than those of the Directive, the legal status of third-country nationals 
could  deteriorate  upon  acquiring  nationality  in  a  Member  State  which  has  less  favourable 
rules for its citizens on this. This is the case in four countries: CY, LT, DE, NL. 

•  Asylum applicants and temporary or subsidiary protection 

The  Directive  also  excludes  from  its  scope  third-country  nationals  under  temporary  or 
subsidiary protection and asylum applicants11. Thus, the national legislation of Member States 
varies on the right to family reunification of non-Convention refugees. AT, CZ, EE, FR, FI, 

10 

11 

Directive 2004/38/EC of the European Parliament and of the Council 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. 
However,  the  Directive  should  not  be  interpreted  as  obliging  Member  States  to  deny  beneficiaries  of 
temporary  or  subsidiary  protection  the  right  to  family  reunification.  Council  Directive  2001/55/EC 
explicitly entitles beneficiaries of temporary protection to reunite with their family members. 

EN 

4 

   EN 

 
                                                 
LU,  NL,  PT,  SE  apply  the  Directive  to  beneficiaries  of  subsidiary  protection  despite  the 
abovementioned exclusion. 

The  Commission  is  committed12  to  closing  this  gap  in  Community  law.  It  will  therefore 
examine  possible  amendments  to  the  Qualification  Directive  to  extend  Community  rules  on 
family reunification to beneficiaries of subsidiary protection. 

4. 

SPECIFIC PROVISIONS 

4.1. 

Eligible family members (Article 4(1)) 

Family  members  entitled  to join the sponsor  are the “nuclear  family” at least: the sponsor’s 
spouse  and  minor  children  of  the  sponsor  or  spouse,  with  the  following  permissible 
restrictions. 

•  Spouse 

Firstly  by  the  prohibition  of  polygamous  marriage  the  reunification  of  only  one  spouse  is 
permitted,  and  the  entry  of  children  of  further  spouses  may  be  refused  to  join  the  sponsor. 
Secondly, Member States can fix a minimum age for both sponsor and spouse. 

Most Member States made use of this optional clause, arguing that it can help prevent forced 
marriages. Five (BE, CY, LT, MT, NL) set the age at 21 years, the maximum threshold under 
the Directive. One (CY) has a further criterion, requiring that the marriage must have taken 
place one year before submission of the application. 

The admissibility of such additional conditions in CY is questionable in the absence of such a 
restriction in the Directive and in the light of the ECJ ruling13. 

•  Minor children 

Minor children are those below the nationally set age of majority (typically 18 years) and who 
are not married. The Directive allows two further restrictions provided they were already part 
of  the  Member  State’s  national  legislation  on  the  date  of  implementation.  Firstly,  children 
over 12 years arriving independently of the rest of their families may have to prove they meet 
integration  conditions  required  under  national  legislation.  Judgment  C-540/03  said  that 
despite such provisions Member States must still respect the best interests of the child14. Only 
2 Member States apply this derogation (DE, CY, ). 

CY adopted national provisions introducing these integration conditions after the Directive’s 
implementation deadline. 

The second possible restriction concerns children older than 15 on the day of the application, 
who may be required to enter a Member State on grounds other than family reunification. No 
Member State has implemented this restriction. As the said Article is a standstill clause (could 

12 
13 
14 

See Policy Plan on Asylum, adopted on 17 June 2008 - COM(2008) 360. 
C-540/03 (para 60). 
Para 73. 

EN 

5 

   EN 

 
                                                 
only be introduced before the implementation date) such limitations in national legislation are 
now prohibited. 

4.2. 

Other family members (Article 4(2)) 

In addition to the nuclear family, Member States may include, as family members, dependent 
parents  and  unmarried  adult  children  of  the  sponsor  or  his/her  spouse,  and  an  unmarried 
partner (duly attested long-term relationship or registered partnership) of the sponsor. 

Over half of Member States15 authorise family reunification for parents of the sponsor and/or 
his/her spouse, whereas seven allow reunification of an unmarried partner (BE, DE, FI, NL, 
SE,  PT,  LT)  either  under  a  registered  partnership  or  an  evidence-based  stable  long-term 
relationship. 

The  Directive  also  says  that  when  a  minor  is  a  recognised  refugee,  Member  States  are  to 
authorise the entry and residence of the parents without the conditions of dependency and lack 
of proper family support. This mandatory provision is not implemented in BG. 

Also, Article 4(2) and (3) permits Member States to authorise entry and residence of ‘other 
family  members’  “subject  to  compliance  with  the  conditions  laid  down  in  Chapter  IV”. 
Consequently,  once  Member  States  decide  to  grant  this  possibility,  the  standard  conditions 
laid down by the Directive apply. 

4.3. 

Requirements for exercising right to family reunification 

4.3.1.  Accommodation (Article 7(1)(a)) 

Most Member States introduced and/or maintained accommodation conditions, apart from FI, 
NL, SI and SE. Practical arrangements vary, some just referring to the “normal” character of 
the accommodation, some using a more precise approach such as specifying required square 
metres per additional person. 

The practice (AT, BE) of asking the sponsor to meet these requirements prior to the entry of 
his/her family members is questionable since the duration of the reunification procedure can 
impose a considerable financial burden on the sponsor. 

According  to  Article  12  of  the  Directive,  refugees  are  not  required  to  provide  evidence 
concerning  accommodation.  PL  does  not  satisfy 
imposes  an 
accommodation condition on refugees too. 

this  provision  as 

it 

4.3.2.  Sickness insurance (Article 7(1)(b)) 

This possibility is used by half of Member States16. HU uses an alternative system, stipulating 
that  either  healthcare  insurance  or  sufficient  financial  resources  are  required,  which  is 
questionable as it might be seen as imposing an additional condition. 

15 
16 

BG, CZ, HU, IT, LT, LU, NL, PT, RO, SI, SK, SE, ES. 
AT, BE, BG, CY, CZ, EE, ES, DE, EL, LV, LT, MT, PL, RO, SI. 

EN 

6 

   EN 

 
                                                 
4.3.3.  Stable and regular resources (Article 7(1)(c)) 

All Member States except SE make use of this criterion, but with different modalities: either 
without being more precise (CY), or by delegating such precision to local provisions (DE), or 
by referring to the minimum wage (FR, LU, RO, LT) or to the minimum income below which 
social  allocations  are  granted  (AT).  The  required  approximate  monthly  income  ranges  from 
€120  (PL)  to  €1 484  (NL).  Some  Member  States 
provide  for  thresholds  which  increase  in 
proportion to the number of family members to be reunited with the sponsor. 

The approaches of  3  Member  States  raise  particular concerns: in EE the required amount is 
almost  doubled  by  an  additional  family  member,  and  in  FI  the  increase  is  €450  for  each 
reunited child. A specific provision in NL asking overall for the highest level of income may 
constitute  discrimination  on  grounds  of  age17.  For  family  formation18,  120%  of  the  legal 
minimum wage of a 23-year-old worker is required from every sponsor irrespective of their 
age.  In  addition,  an  employment  contract  of  at  least  one  year  or  an  employment  record  of 
three years is also required. All such conditions can hamper the right to family reunification, 
especially for younger people. 

4.3.4. 

Integration measures (Article 7(2)) 

This  optional  clause  enables  Member  States  to  require  that  third-country  nationals  comply 
with  integration  measures,  which  in  the  case  of  family  members  of  refugees  can  only  be 
applied once family reunification is granted19. 

A few Member States have introduced an integration measure into national legislation. Three 
of them (NL, DE, FR) use it as a condition before admission to the territory. DE requires with 
the exception of certain nationalities the spouse to have a basic knowledge of German before 
entry,  to  be  demonstrated  at  a  consulate.  In  FR  the  issuing  of  the  visa  is  conditional  on  the 
assessment of knowledge of the language and where the language proficiency is insufficient, 
on the attendance of languages courses. Once the family member has been admitted to reside 
in France, he/she has to sign a "reception and integration" contract which obliges him/her to 
take civic courses and, when needed, linguistic courses. NL requires family members to pass a 
first20 integration test covering language and knowledge of Dutch society which can only be 
taken in their country of origin. Certain nationalities, groups and highly skilled migrants are 
exempted. If a candidate fails the test, the decision cannot be challenged, but the test can be 
re-taken  for  the  same  cost.  Other  Member  States  (AT,  CY,  EL)  require  family  members  to 
participate in integration courses (mainly language courses) or to pass language exams after 
admission.  Some  make  it  a  condition  for  permanent  residence  only  (LT)  or  foresee  the 
possibility to cut benefits (DE) in the event of non-compliance. 

The  objective  of  such  measures  is  to  facilitate  the  integration  of  family  members.  Their 
admissibility  under  the  Directive  depends  on  whether  they  serve  this  purpose  and  whether 
they  respect  the  principle  of  proportionality.  Their  admissibility  can  be  questioned  on  the 
basis of the accessibility of such courses or tests, how they are designed and/or organised (test 
materials, fees, venue, etc.), whether such measures or their impact serve purposes other than 

17 

18 
19 
20 

Recital  5  of  the  Directive  states  that  Member  States  should  give  effect  to  the  Directive’s  provisions 
without discrimination, inter alia on the basis of age. 
When the family relationship arose after the sponsor’s entry. 
Refugees are required to fulfil integration conditions for family formation in the NL. 
After arrival in NL family members are also subject to integration requirements. 

EN 

7 

   EN 

 
                                                 
integration  (e.g.  high  fees  excluding  low-income  families).  The  procedural  safeguard  to 
ensure the right to mount a legal challenge, should also be respected. 

4.3.5.  Waiting period and reception capacity (Article 8(1)) 

In addition to conditions set out in Article 3, this provision allows Member States to introduce 
a  minimum  period  of  lawful  residence  (not  exceeding  two  years)21  before  reunification  can 
take place. 

This  means  the  application  may  be  filed,  but  Member  States  may  delay  granting  family 
reunification  until  the  period  determined  by  their  legislation  expires.  Implementation 
problems  therefore  arise  with  any  Member  State  that  stipulates  this  two-year  residence 
condition to run at the moment of application only (CY, EE, EL and LT). 

The second indent provides for a waiting period of three years counted as from the submission 
of  an  application,  but  only  in  those  Member  States  who  have  already  taken  their  reception 
capacity into account at a time of the adoption of the Directive. This standstill derogation was 
specifically requested by AT - the only Member State using it - as it had a quota system in its 
national  legislation.  Upon  implementation  of  the  Directive  and  following  the  ECJ  ruling22 
Austria  modified  its  provisions  so  that  three  years  after  an  application  is  filed,  a  settlement 
permit for the purpose of family reunification has to be granted regardless of the quota. 

This provision precludes the introduction of the notion of reception capacity as a condition in 
national law. 

4.3.6.  Possible  restriction  on  grounds  of  public  order,  public  security  and  public 

health (Article 6) 

Member States have used various methods of implementing this provision, some referring to 
the relevant Schengen acquis provisions, some referring to a criminal offence with custodial 
sentence. 

Recital 14 of the Directive gives some indication of what might constitute a threat to public 
policy and public security, but otherwise it is left to Member States to set their standards in 
line with the general principle of proportionality and the horizontal Article 17 obliging them 
to  take  account  of  the  nature  and  solidity  of  the  persons’  relationship  and  duration  of 
residence,  weighing  it  against  the  severity  and  type  of  offence  against  public  policy  or 
security. The public health criterion can be applied as long as illness or disability is not the 
sole  ground  for  withdrawal  or  non-renewal  of  a  residence  permit.  3  Member  State  do  not 
comply with this (EE, SI, RO)23. 

21 

22 
23 

Article 12 of the European Convention on the Legal Status of Migrant Workers of 24 November 1977 
provides for a maximum waiting period of just 12 months. The scope of application of this Convention 
is, however, limited because so far it has been ratified by only six Member States (FR, IT, NL, PT, ES, 
SE) and four third-countries (Albania, Moldova, Turkey, Ukraine). 
Paras 100 and 101 of C-540/03. 
EE uses a criterion (“a threat to the interest of other persons”) that is even wider than that admissible 
under the Directive. 

EN 

8 

   EN 

 
                                                 
4.4. 

Procedural rules 

4.4.1.  Application assessment procedure 

•  Specific procedure (Article 5(1)) 

Most Member States have a specific procedure for family reunification. Only four (CZ, HU, 
LV, PL) do not deem it useful to have a specific procedure, but deal with family reunification 
within the general immigration rules. 

•  The applicant (Article 5(1)) 

Member  States  are  also  split  on  the  question  of  whether  the  family  member  or  the  sponsor 
should be the applicant under the procedure. 

It is the sponsor who introduces the family reunification request in CY, FR, EL, IT, LV, LU, 
MT,  PL,  RO,  SI,  ES.  In  the  other  Member  States  family  members  can  also  introduce  the 
reunification  request,  except  for  AT  and  HU  where  the  applicant  can  only  be  a  family 
member. In PT the family member applies only if he/she is in Portugal, otherwise it is for the 
sponsor to file the application. 

•  Place of application (Article 5(3)) 

The  Directive  requires  that  the  family  member  resides  outside  the  territory  of  the  Member 
State  at  the  time  of  the  application,  and  only  allows  for  derogation  in  appropriate 
circumstances. 

Five Member States (CZ, FI, HU, PL, PT) impede this provision as they do not even enact the 
primary  rule  of  family  members  having  to  reside  outside  their  territory.  All  other  Member 
States, except CY, apply this derogation and permit an application even if the family member 
is  already  in  the  Member  State,  although  the  scope  of  the  derogation  varies  substantially. 
Some make it possible only on humanitarian grounds (AT), some merely call for the family 
member  to  reside  legally,  and  some  accept  it  if  the  applicant’s  return  to  his/her  country  of 
origin is not reasonable (DE). 

•  Documentary evidence (Article 5(3)) 

The list of required documents varies among Member States: some have a very detailed list, 
while  others  just  refer  to  general  requirements  (SE,  DE,  MT,  ES,  LT)  and  thereby  leave 
authorities with considerable leeway. 

The Directive sets specific provisions as regards refugees, saying that Member States should 
take into account other evidence where a refugee cannot provide an official document proving 
the family ties. EE does not comply with this provision: it states that the absence of an official 
document may result in refusal. The NL provision placing the burden of proof on the refugee 
to show that it is impossible for her/him to produce such a document is also questionable. 

•  Interviews and investigations (Article 5(2)) 

All  Member  States  use  the  possibility  to  carry  out  interviews  and  to  conduct  other 
investigations if deemed necessary. Some Member States (AT, BE, DE, FI, FR, IT, ES, LT, 

EN 

9 

   EN 

 
SE, NL) have introduced the possibility of DNA tests to prove family ties. It is a possibility 
only for the applicant and, in most cases, the authorities bear the costs (except in LT and BE, 
and in NL where it is refunded only if the test proved the family tie). 

To be admissible under Community law these interviews and/or other investigations must be 
proportionate  –thus  not  render  the  right  to  family  reunification  nugatory-  and  respect 
fundamental rights, in particular the right to privacy and family life. 

•  Marriage, partnership or adoption of convenience (Article 16(4)) 

This provision allows Member States to conduct specific checks and inspections where there 
is  reason  to  suspect  fraud  or  a  marriage,  partnership  or  adoption  of  convenience.  Every 
national system contains rules to prevent family reunification if a relationship exists with the 
sole purpose of obtaining a residence permit. 

AT’s  legislation  is  problematic  as  it  reflects  a  general  suspicion  by  systematically  applying 
this  provision,  i.e.  its  registry  offices  have  to  submit  information  about  every  marriage 
involving a third-country national irrespective of any actual suspicion, which then needs to be 
followed up by the Alien Police. In a similar vein, in NL if one of the partners does not have 
Dutch nationality, prior to contracting a marriage or registered partnership the registrar must 
first request a declaration from the Chief of Police. 

•  Fees 

In  all  Member  States,  except  IT  and  PT,  applicants  have  to  pay  fees.  It  is  not  always  clear 
whether  the  fees  are  for  a  visa  or  for  the  application  itself.  The  total  amount  varies  from  a 
symbolic  amount  for  administrative  costs  in  BE  and  ES  and  a  €35  fee  in  CZ  and  EE,  to 
€1 368 in NL 24. On average the fee is between €50 and €150. 

The  Directive  does  not  regulate  the  issue  of  administrative  fees  payable  in  the  procedure. 
However, Member States should not set fees in a way which may undermine the Directive’s 
effect when the right of family reunification is exercised. 

4.4.2.  Administrative decision 

•  Length of procedure (Article 5(4)) 

A written notification of the decision is to be given to the applicant as soon as possible and in 
any event no later than nine months from the date on which the application was lodged. 

Periods  are  set  at  an  average  of  three  months  or  the  general  rules  are  applied,  these  being 
within nine months. 14 Member States use the option in the Directive of extending the time 
limit in exceptional circumstances linked to the complexity of examining the application. 

The situation is problematic in 2 Member States. BG provides only for a recommended time 
period of seven days. In ES there is no legal deadline either, but practice shows that the period 
required by this provision is met.  

24 

In NL an application for a visa for family reunification costs €830, the integration test €350. Issuance of 
a residence permit for a temporary stay costs €188.  

EN 

10 

   EN 

 
                                                 
•  Written and motivated decision (Article 5(4)) 

All Member States comply with the criteria to have a written decision and to give reasons for 
rejecting  an  application.  LV  is  the  only  Member  State  which  does  not  specify  the 
consequences of no decision being taken by the end of the maximum nine-month period. In 
most Member States the absence of a decision grants the possibility to seek remedy. In BE, IT 
and PT the absence of a decision is implicit authorisation, whereas in BG, FR, EL and LU it is 
the reverse constituting implicit rejection. 

•  Best interest of the child (Article 5(5)) 

Implementation of this horizontal mandatory clause i.e. paying due regard to the best interests 
of  minor  children  when  examining  an  application,  apparently  causes  problems  for  several 
Member States. This obligation is not expressly mentioned in the national legislation of AT, 
EL25 and PT. LT and NL only make reference to Article 8 of the ECHRC which, given the 
ECJ’s observations in C-540/03, does not seem to be sufficient to implement this particular 
provision26. HU only refers to guarantees offered by international agreements, without further 
details.  The  Member  States  that  comply  with  this  provision  either  do  so  by  formally 
implementing this clause in their national legislation or by referring to the UN Convention on 
the Rights of the Child. 

•  Horizontal clause on relevant consideration (Article 17)  

This  obligation  to  take  due  account  of  the  nature  and  solidity  of  the  person’s  family 
relationships,  the  duration  of  his/her  residence  in  the  Member  State  and  of  the  existence  of 
family, cultural and social ties with his/her country of origin and thereby apply a case-be-case 
approach  was  also  specifically  recalled  by  the  ECJ  in  C-540/03.  In  accordance  with  that 
ruling,  mere  reference  to  Article  8  ECHRC  does  not  seem  to  constitute  adequate 
implementation of Article 17, which could be problematic for AT, LU, SK. 

The  general  problem  in  transposition  appears  to  be  that  national  requirements  for  family 
reunification  are  applied  very  strictly,  and  that  the  authorities  are  not  obliged  to  assess  the 
application  on  an  individual  basis.  This  strict  application  of  the  rules  is  evident  in  NL  with 
regard to the age limit, income requirement, requirement to pass an integration exam abroad, 
three-month period for refugees and the requirement of an authorisation for temporary stay. 

25 
26 

EL legislation only talks about family ties which are to be taken into account by the national authorities. 
The principle that the best interests of the child must be of primary consideration is enshrined in Article 
24 of the Charter of Fundamental Rights and also in the UN Convention on the Rights of the Child. 

EN 

11 

   EN 

 
                                                 
•  Redress (Article 18) 

When  it  comes  to  the  right  to  mount  a  legal  challenge,  Member  States’  rules  vary 
considerably on the material and personal scope of such judicial reviews. 

The sponsor cannot be a party to the administrative and judicial proceedings in AT, NL and 
SI,  whereas  in  DE,  EL,  FI,  LV,  LT  both  family  members  (as  applicants  for  family 
reunification) and sponsors are entitled to judicial review. Regarding what can be challenged 
within the judicial review, CZ, DE, HU and LV have excluded visas and AT quotas. Appeal 
procedures exist in all Member States, in most instances within the ordinary court system, but 
some Member States have specialist tribunals (BE, SE). The review arrangements also vary: 
LV, LU, PL and SK review only legality, whereas both the facts and the law are reviewed in 
IT, HU, LT, PT and ES. In NL facts are only reviewed marginally by the courts. Legal aid in 
family reunification cases is provided by most Member States, except CY, DE, EL, IT, LV, 
PL and SK. 

This  redress  provision  must  be  applied  in  conformity  with  the  right  to  an  effective  remedy 
before a tribunal as set out in Article 47 of the Charter of Fundamental Rights which reflects 
ECJ case law on this. 

4.5. 

Rights 

4.5.1.  Entry and residence 

•  Visa facilitation (Article 13(1)) 

As  soon  as  a  family  reunification  application  has  been  accepted,  Member  States  must 
authorise  the  entry  of  the  family  members  and  grant  them  every  facility  for  obtaining  the 
requisite visas. 

Implementation of this mandatory provision creates difficulties for some Member States, on a 
legal and practical basis. 

Some  Member  States  (BE,  BG,  LU,  NL,  SI)  did  not  implement  this  specific  provision  in 
national legislation, and one (NL) has rules running counter to visa facilitation by requiring a 
double-check on whether the family reunification requirements are met, first when applying 
for  a  visa  to  enter  and  then  again  when  applying  for  a  residence  permit.  Furthermore,  an 
additional condition not provided for in the Directive is introduced, prescribing that the visa 
application can only be filed in the country of origin or of permanent residence.  

•  Duration of residence (Article 13(2) and (3)) 

Member  States  must  grant  family  members  a  first  residence  permit  of  at  least  one  year’s 
duration. It is also stipulated that the duration of residence permits granted to family members 
shall in principle not go beyond the date of expiry of the sponsor’s residence permit. 

When  implementing  these  provisions  a  problem  may  arise  if  the  validity  of  the  sponsor’s 
residence permit is less than one year when the family member’s residence permit is issued. 
Article 13(3) then seems to prevail over 13(2). Member States (EL, FI, CZ) that always align 
the duration of the family member’s residence permit with that of the sponsor only impede the 

EN 

12 

   EN 

 
Directive if applying this rule in bad faith so as to restrict the family member’s residence (i.e.: 
if the sponsor’s residence permit is already in the process of renewal.) 

•  Autonomous residence permit (Article 15) 

At  the  latest  after  five  years  of  lawful  residence  an  autonomous  residence  permit  must  be 
granted for the spouse or unmarried partner and for a child who has reached majority. 

Most Member States (20) use this maximum five years27. BE, CZ, NL, FR only require three 
years of prior residence. In HU the five years count from the first issue of a residence permit, 
which  can  be  problematic  if  the  family  member  was  first  holding  a  visa  before  obtaining  a 
residence permit. FI implemented the provision as a “may” clause in a way not respecting the 
five-year  rule.  RO  implemented  this  provision  too  restrictively,  by  including  a  closed  list28 
defining when the autonomous residence permit should be issued. 

If  the  family  relationship  breaks  down  Member  States  may  limit  the  granting  of  the 
autonomous residence permit for the spouse or unmarried partner. 11 Member States do this. 
However,  16  Member  States  also  use  the  optional  provision  of  granting  an  autonomous 
residence  permit  in  the  event  of  widowhood,  divorce  or  separation,  sometimes  stating 
established close ties or humanitarian grounds as the justification. 

The  mandatory  provision  to  lay  down  the  rules  to  ensure  the  granting  of  an  autonomous 
residence  permit  was  impeded  by  seven  Member  States  (BU,  EE,  FI,  HU,  IT,  RO,  PL,  SI) 
either  by  not  laying  down  any  rules29  in  this  regard  or  by  implementing  the  provisions  in  a 
way which gives the authorities an inadmissible amount of leeway. 

4.5.2.  Access to education and employment (Article 14) 

A  relative  form  of  equal  treatment  is  to  be  provided  for  the  family  member:  if  the  sponsor 
does not have access to employment nor, under the Directive does the family member. Some 
Member States (AT, NL, MT, DE) have limited the access of family members to exactly what 
is required by the Directive, resulting in three different situations depending on the sponsor’s 
status: no access at all, access only with a work permit (with or without a labour market test) 
or  free  access  to  the  labour  market.  Others  impose  no  restrictions  on  labour  market  access 
(EE, FI, FR, LT, LU). 

Most Member States require a work permit which can in certain, albeit limited, cases impede 
the Directive (e.g. if the sponsor does not need one). 

On the basis of the optional clause in paragraph (2) Member States can limit labour market 
access  by  making  it  conditional  on  a  labour  market  test  during  the  first  12  months.  This  is 
used by seven Member States (AT, CY, DE, EL, HU, SI, SK). 

In three of these (DE, HU, SI), use of the exception exceeds what the Directive permits, since 
national  law  allows  the  complete  exclusion  of  certain  categories  of  family  members  from 

27 
28 

29 

Both AT and NL demand an additional compliance with integration requirements. 
Namely when the minor becomes an adult (18 years old); if the sponsor died (for any other person); or 
in cases of divorce (for the husband/wife). 
EE 

EN 

13 

   EN 

 
                                                 
employment during the first year after admission, whilst the Directive allows exclusion only 
on the basis of a labour market test. 

Generally,  it  appears  that  transposition  of  the  Directive  has  resulted  in  national  legislation 
giving admitted family members easier access to employment. 

No particular problem was reported regarding access to education, except that BE and RO did 
not  explicitly  implement  the  provision  but  applied  it  in  practice;  in  RO  through  its  general 
principle of law on equality and non-discrimination. 

4.6. 

Family reunification of refugees 

Chapter  V  of  the  Directive  refers  to  a  series  of  derogations  creating  more  favourable 
provisions for the family reunification of refugees so as to take their particular situation into 
account. 

There is a horizontal problem with two Member States (CY, MT) as they have not introduced 
these more favourable provisions and the latter do not distinguish between refugees and other 
third-country  nationals.  Specific  problems  regarding  other  Member  States  and  concerning 
more favourable provisions for refugees are highlighted throughout the report. 

5. 

CONCLUSIONS 

This report analyses national legalisation implementing the Directive 2003/86/EC on the right 
to family reunification. This is the first legislative instrument on legal migration at EU level 
and, as a result several Member States30 for the first time have a detailed set of rules on the 
right to family reunification in their national legislation. 

The report revealed a few cross-cutting issues of incorrect transposition or misapplication of 
the  Directive  which  need  to  be  highlighted,  such  as  the  provisions  on  visa  facilitation, 
granting autonomous residence permits, taking into account the best interest of the child, legal 
redress  and  more  favourable  provisions  for  the  family  reunification  of  refugees.  The 
Commission  will  examine  all  cases  where  application  problems  were  identified  and  ensure 
that the provisions are correctly applied, in particular in conformity with fundamental rights 
such as respect for family life, the rights of the child and the right to an effective remedy. This 
will imply launching, during 2009, the necessary procedural steps for non-compliance, where 
appropriate  in  accordance  with  Article  226,  in  particular  in  cases  where  there  are  clear 
differences in interpretation of Community law between the Member States and the European 
Commission. 

Furthermore the report showed that the impact of the Directive on harmonisation in the field 
of  family  reunification  remains  limited.  The  low-level  binding  character  of  the  Directive 
leaves Member States much discretion and in some Member States the results has even been 
lowering  the  standards  when  applying  “may”  provisions  of  the  Directive  on  certain 
requirements for the exercise of the right to family reunification in a too broad or excessive 
way. In this respect the possible waiting period, the minimum age of the sponsor, the income 
requirement  and  the  possible  integration  measures  should  be  mentioned  in  particular.  The 
Commission  will  take  forward  these  issues  through  all  appropriate  means,  including  the 

30 

EL, CY, MT, RO. 

EN 

14 

   EN 

 
                                                 
policy  follow  up  that  the  Commission  will  give  to  the  present  report.  In  line  with  the 
Communication  of  17  June  2008  as  well  as  the  upcoming  European  Pact  on  Immigration 
which identified family reunification as the key to successful immigration and an area where 
the European Union needs to develop further its policies, the Commission intends to launch a 
wider consultation – in the form of a Green Paper – on the future of the family reunification 
regime.  

EN 

15 

   EN