European Court of Justice Allows EU Member States to Impose Conditions on Family Reunion

The European Court of Justice (ECJ) has ruled that a provision allowing EU Member States to verify if certain child family members meet a condition for integration before allowing entry and residence is not contrary to EU or human rights law (case C-540 European Parliament v Council (2006) ECJ (Grand Chamber) 27/6/2006).

Under EU law, a EU national is permitted to bring certain family members with them to live and work in other EU Member States, regardless of the family member's nationality. This means that non-EU family members (known as 'third country nationals') have a right to accompany the EU national.

The EU issued a Directive (a Directive is binding on EU Member States unless they have an exemption) known as 'Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification'.

Within that directive is a clause in Article 4, which states:

'By way of derogation, where a child is 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'.

The European Parliment took the European Council to the ECJ as it objected to this clause for a number of reasons; one of them being that the clause was not in accordance to the fundamental EU principal of family reunion. The Parliament objected to the fact that Directive allowed Member States to prevent family reunion by way of the derogation.

The Parliament also claimed that the clause was against the interest of children and the principal of non-discrimination on grounds of age.

On the main point, the ECJ were of the opinion that the principal of family reunion and article 8 (family life) of the European Convention of Human Rights did not mean that Member States should be denied a certain margin of appreciation when they examined applications for reunion. The derogation in the Directive was no different from rights of Member States accorded by the European Court of Human Rights in that court's decisions on article 8 cases.

The ECJ held that the clause did not discriminate on the grounds of age, as 12 years old was an age when the child could be said to have lived for a relatively long period of time in another environment and integration in the Member State may be more problematic.

The court dismissed the action.

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