Do You Have to Say “I Do” to be Entitled? - Family Reunification in EU Law

Abstract: One of the most remarkable changes in European family law systems is the development of new institutions that provide a legal status for unmarried couples. Over the last decade, this change has also been accompanied by a rapid evolution of social attitudes towards same-sex couples that has lead to legal recognition in many Member States of the EU. An area of EU law where such developments could have an impact is the field of family reunification. After an expansion of the Unions competence in matters concerning immigration of third-country nationals, a directive regulating family reunification between third-country nationals was adopted: Directive 2003/86/EC - the Family Reunification Directive. Do you have to be married to enjoy a right to family reunification under this directive or has the growing legal recognition of unmarried opposite-sex couples and same-sex couples been incorporated? In the initial proposal from the Commission, spouses as well as unmarried couples, who could be of the same sex, were included. However, this proposal proved to be too controversial for some Member States and the drafting process became difficult and long. In the text that finally was adopted, only spouses is given a general right to family reunification. As for all other couples, it is for the Member States to decide whether or not to grant settlement rights for their partners. The meaning of the word “spouse” is not further determined by the directive, but by looking at the ECJ’s jurisprudence it is clear that the term refers to a heterosexual couple joined in a legal marriage. Cases such as Reed, Grant, and D and Sweden v Council shows that the Court is not yet willing to expand this notion to adapt to the growing recognition of unmarried opposite-sex and same-sex couples. The Court has instead repeatedly held that such expansion is a question for the legislature. An interpretation of the directive, in the light of the right to respect of family life does not seem to improve the situation for unmarried opposite-sex couples or same-sex couples. The right to family reunification under this fundamental right is very limited and far from a general one even for spouses. In fact, the protection under the Family Reunification Directive is more generous than under the ECHR. Nor does the prohibition of discrimination of sexual orientation seem to be of assistance as a same-sex union, e.g. a registered partnership, and a marriage is not found to be in a comparable situation according to the ECJ. All in all, the Family Reunification Directive fails to respond to the growing legal recognition of unmarried opposite-sex couples and same-sex couples and does not afford any rights to the increasing number of people living in these kinds of relationships. In short, this means that you have to say “I do” to be entitled to family reunification under EU law.