Court/Judicial body: European Court of Justice (Grand Chamber)
Date: 27 June 2006 CRC
Provisions:Preamble Article 9: Separation from parents Article 10: Family reunification Regional Law: Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, Articles 4(1), 4(6) and 8 European Convention for the Protection of Human Rights and Fundamental Freedoms
Background: On 22 September 2003, the European Council passed a law relating to the right of third-party nationals to be joined by their families while lawfully residing in the European Union (EU) (“Directive”). Among other things, the Directive gives EU Member States the ability to: (1) determine before authorising entry and residence whether “conditions for integration” are met by children over the age of 12 who arrive independently from their families; (2) request that applications for family reunification be submitted before children reach the age of 15; and (3) require that non-citizens live in the Member State for up to two years before being joined by their families and wait up to three years after the submission of an application before receiving a residence permit for family members. The European Parliament filed this lawsuit challenging these three provisions of the Directive.
Issue and resolution: Family reunification. The Court dismissed the action, finding that the challenged provisions of the Directive do not violate the fundamental right to respect for family life, the obligation to have regard for the best interests of the child, or the principle of non-discrimination on the basis of age.
Court reasoning: The challenged provisions lawfully provide EU Member States with a certain “margin of appreciation” to weigh competing interests before authorising entry and residence of third-party nationals. This “margin of appreciation” is sufficiently wide to enable Member States to apply these provisions in a manner consistent with the requirements flowing from the protection of fundamental rights. The Directive itself contains safeguards that require Member States to have due regard for the best interests of the child, and to take into account the nature and solidity of the person’s family relationships, the duration of their residence in the Member State, and the existence of family, cultural and social ties with their country of origin. Implementation of the Directive is subject to review by the national courts. EU Member States are required to ensure that non-citizens and/or their family members have the right to mount a legal challenge where an application for family reunification is rejected. If such cases raise questions regarding the interpretation or validity of the Directive, the question may be submitted to the European Court of Justice for a preliminary ruling. Excerpts Citing CRC And Other Relevant Human Rights 57. The Convention on the Rights of the Child also recognises the principle of respect for family life. The Convention is founded on the recognition, expressed in the sixth recital in its preamble, that children, for the full and harmonious development of their personality, should grow up in a family environment. Article 9(1) of the Convention thus provides that States Parties are to ensure that a child shall not be separated from his or her parents against their will and, in accordance with Article 10(1), it follows from that obligation that applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification are to be dealt with by States Parties in a positive, humane and expeditious manner. … 59. These various instruments stress the importance to a child of family life and recommend that States have regard to the child’s interests but they do not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying States a certain margin of appreciation when they examine applications for family reunification.
Follow up: A report dated 8 October 2008 from the Commission of the European Communities to the European Parliament and the European Council on the application of the Directive can be found at: http://www.libertysecurity.org/IMG/pdf_com2008_0610en01.pdf.
CRIN comments: CRIN believes this decision is not consistent with the CRC. Article 3 requires the best interests of the child to be a primary consideration in all actions concerning children. It is unclear whether the Directive’s requirement that Member States have “due regard” to the best interests of the child adequately meets the threshold of “primary consideration”. The provisions in the Directive authorising Member States to impose restrictions on a child’s right to family reunification based on whether they are over the ages of 12 or 15 discriminate on the basis of the child’s age in violation of Article 2. Furthermore, the provision in the Directive authorising Member States to prevent children from living with their parents in the Member State for a certain period of time does not require applications to be considered on a case-by-case basis. The Committee on the Rights of the Child has stated that “it is indispensable to carry out the assessment and determination of the child’s best interests in the context of potential separation of a child from his or her parents”, and that “preservation of the family unit should be taken into account when assessing the best interests of the child in decisions on family reunification”.
Citation: Case C-540/03 European Parliament v. Council of the European Union  ECR I-05769 Link to Full Judgment: http://curia.europa.eu/juris/liste.jsf?pro=&nat=or&oqp=&dates=&lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&num=c-540%252F03&td=ALL&pcs=Oor&avg=&page=1&mat=or&jge=&for=&cid=100254