Report on the application of Directive 2003/86 on family reunification of third country nationals
Ensuring proper implementation
The Commission today adopted a Communication on the application of Directive 2003/86 on the right to family reunification. This report meets the Commission's obligation under Article 19 of the Directive by summarising Member States’ transposition of the Directive, identifying possible problems and giving recommendations on proper application.
This report analyses national legalisation implementing the Directive 2003/86/EC on the right to family reunification of third country nationals to be joined by their third country national family members. Therefore this report does not deal with the situation of third-country nationals who are members of the family of a Union citizen regulated in the framework of free movement of EU citizens (Directive 2004/38).
The findings of the report are based on two Commission studies on the implementation of the Directive (conducted by the Odysseus network (2007) and by the European Migration Network (2008) and used information from other studies (ie.: the one form the Centre for Migration Law form Nijmegen and a study requested by the European Parliament and conducted and published by International Organisation for Migration in 2008). The factual information contained in the report has also been checked by the Member States through an informal on its accuracy.
The right to family reunification
The Directive recognises the existence of a right to family reunification when defining its purpose. The existence of this right is explicitly confirmed by the European Court of Justice (in case 540/03 which the European Parliament brought against the Council) stating that the Directive imposes 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 without being left a margin of appreciation. Certainly such a right is not without conditions (an age limit can be set, public policy, public security, public health criteria should be fulfilled, economic conditions such as accommodation, sickness insurance, stable and regular resources of the sponsor can be asked and certain integration measures could be introduced by the Member States) but only those conditions and to the extent as provided for in the Directive.
Key problems of implementation at national level
Overall, the Directive has been transposed satisfactorily in the majority of Member States. A few horizontal issues of incorrect transposition or misapplication of the Directive need to be highlighted; the fact that some Member State do not grant proper visa facilitation for those family members whose application are already accepted, others do not grant autonomous residence permit to the family members in all the given cases of the Directive or not take into account satisfactory enough the best interest of the child or does not adequately apply the more favourable provisions for the family reunification of refugees.
In addition the main application problem is that some "may" provisions of the Directive enabling Member States to introduce or maintain certain requirements for the exercise of the right to family reunification (fees, possible waiting period, stable and regular resources as an economic condition and possible integration measures such as language and other test should be mentioned in particular) are applied in a too broad or excessive way having the effect to restrict the given right to family reunification to an extent which runs counter the effet utile of the Directive.
Follow up with a Green paper to take up the call of the Immigration Pact
In addition to examining all the cases where application problems were identified and ensuring that the provisions of the present Directive are correctly applied the Commission announces in this report its intention to launch a wider consultation – in the form of a Green Paper – on the future of the family reunification regime in order to raise the issues where the Directive at its present form does not give a precise enough response.
The Communication can be found at the following address:
To find out more about Vice President Barrot's work please visit his website:
http://ec.europa.eu/commission_barroso/barrot/welcome/default_en.htm
Published on: 2008-10-08
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