The interaction between the directive 2003/86 and the Charter of fundamental rights of the European Union in the family reunification of a third country nationa

Abstract

This contribution aims to show how the interpretation of Directive 2003/86 on family reunification between third-country nationals is made by the CJEU case- law in the light of the fundamental rights of the EU Charter. On the one hand, the Court recognizes a broad concept of the notion of “family”, not only when it comes to relations between family members, but also to the complex nexus of the legal rights involved. The CJEU asks the referring courts for a case-by-case assessment. As a result of this approach, the concept of effective family life is also interpreted in a broader sense. It requires the intention for family members to see each other and keep in touch rather than live together and provide mutual financial support. On the other hand, the conditions set out by the directive, whose respect is required by the member States to grant the family reunification, are interpreted strictly. As regards the age requirement, the Court states that it corresponds to the time of the application in order to respect the principles of legal certainty and equal treatment. The Court demands an individual assessment regarding the integration in a member State; such a condition is often confronted with contradictory interests or rights (for example family reunification vs the child’s interest). “Economic resources” fall under the exceptions to family reunification, which are interpreted narrowly by the EU Court. Nevertheless, a margin of discretion is granted to the national authorities; the same can be said for exceptions of public order.