ANNEX
COUNCIL DIRECTIVE
on the right to family reunification
Chapter I
General provisions
Article 1
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 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) "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 Regulation 1030/2002
laying down a uniform format for residence permits for third-country nationals.
(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.
Article
3
1. This
Directive shall apply where the sponsor 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 sponsor 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) 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 legislation or the practice of the Member States or applying for
authorisation to reside on that basis and awaiting a decision on his status.
3. This
Directive shall not apply to members of the family of a Union citizen.
4. This
Directive is without prejudice to more favourable provisions of:
(a) bilateral and
multilateral agreements between the Community 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.
5. This
Directive shall not affect the possibility for the Member States to adopt
or retain more favourable provisions.
Chapter II
Family
members
Article
4
1. The
Member States shall authorise the entry and residence, 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;
(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 obligations;
(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 them and do not enjoy proper family support in the
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.
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 sponsor is in a duly attested stable long‑term
relationship, or of a third‑country national who is bound to the sponsor
by a registered partnership in accordance with Article 5(2), and the unmarried
minor children, including adopted children, as well as the adult unmarried
children who are objectively unable to provide for their own needs on account
of their state of health, of such persons.
Member
States may decide that registered partners are 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 a Member State, the Member State
concerned shall not authorise the family reunification of a further spouse.
By derogation to 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 involuntary 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 children have to be submitted before the age of
fifteen, 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 fifteen, 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 exercise 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.
2. The
application shall be accompanied by 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, as well as certified copies of family
member(s)' travel documents.
If
appropriate, in order to obtain evidence that a family relationship exists,
Member States may carry out interviews with the sponsor and his/her family
members and conduct other investigations that are found 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.
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.
By
way of derogation, a Member State may, in appropriate circumstances,
accept an application be submitted when the family members are already in its
territory.
4. The
competent authorities of the Member State shall give the person who has
submitted the application 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.
Reasons
shall be given for the decision rejecting the application. 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, 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 this
person.
3. Renewal
of the residence permit may not be withheld and 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.
Article 7
1. When
the application for family reunification is submitted, the Member State
concerned may ask the person who has submitted the application to provide
evidence that the sponsor has:
(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 normally covered for its own nationals in the
Member State concerned for himself/herself and the members of his/her
family;
(c) stable and regular
resources which are sufficient to maintain 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/family members of refugees referred to in Article 12 the
integration measures referred to in the first sub-paragraph 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 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 has regard for 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
1. This
Chapter shall apply to family reunification of refugees recognised by the
Member States.
2. Member States
may confine the application of this Chapter to refugees whose family
relationships predate their entry.
3. This
Chapter is without prejudice to any rules granting refugee status to family
members.
Article
10
1. Article
4 shall apply to the definition of family members, except that the third
subparagraph of paragraph 1 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.
3. If
the refugee is an unaccompanied minor, the Member 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
1. Subject
to paragraph 2, Article 5 shall apply to the submission and examination of the
application.
2. Where
a refugee cannot provide official documentary evidence of the family
relationship, the Member States shall have regard to other evidence, to be
assessed in accordance with national law, 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
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 referred to in Article 4(1), the evidence that the refugee
fulfils the requirements set out in this provision.
Without
prejudice to international obligations, where family reunification is possible
in a third-country with which the sponsor/family member has special links,
Member States may require the evidence referred to in the first sub-paragraph.
Member
States may require the refugee to meet the conditions referred to in Article
7(1) if the application for family reunification 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
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.
2. The Member State concerned shall grant the family members a
first residence permit of at least one year's duration. This residence permit
shall be renewable.
3. The
duration of the residence permits granted to the family member(s) shall in
principle not go beyond the date of expiry of the residence permit held by the
sponsor.
Article 14
1. The
sponsor's family members shall be entitled, in the same way as the sponsor, 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 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 cases 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 relatives in the direct ascending line or adult unmarried children
to whom Article 4(3) applies.
Article
15
1. At
the latest after five years of residence, and provided 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 autonomous
residence permit, independent of that of the sponsor.
Member
States may limit the granting of the residence permit referred to in the first
sub-paragraph to the spouse or unmarried partner in cases of breakdown of the
family relationship.
2. The
Member States may issue an autonomous residence permit to children of full
age and to relatives in the direct ascending line to whom Article 4(3) applies.
3. In
the event of widowhood, divorce, separation, or death 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 provisions ensuring
the granting of an autonomous residence permit in the event of particularly difficult
circumstances.
4. The
conditions relating to the granting and duration of the autonomous residence
permit are established by national law.
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 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;
When renewing the residence permit, where the sponsor has no
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 full 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 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.
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 residence comes to an end and the
family member does not yet enjoy the autonomous right of residence under
Article 15.
4. Member States
may conduct specific checks and inspections 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.
Article
17
Member States shall have
proper regard for the nature and solidity of the person's family relationships
and the duration of his residence in the Member State and to 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 residence 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 challenge 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
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 Directive not later than [a period of 24 months]. They shall
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
22
This Directive is addressed to the Member States.
Done at Brussels,
For
the Council
The
President
