Ref.

Ares(2013)156308 - 07/02/2013

EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE Directorate C: Fundamental rights and Union citizenship Unit C,2: Union citizenship and Free movement Head of Unit

Brussels,

u «j FEV, 2'JIJ

J UST/C2/M M/hk(2013)s 13 7425

Mr Steve Green e-mail: siplep@gmail.com

Dear Mr Green, I acknowledge receipt of your e-mail of 21 November 2012 sent to Vice-President Reding concerning UK rules on family reunification. Please accept my sincere apologies for the delay in responding to your letter. Under EU law, provisions concerning family reunification are laid down in Directive 2003/86/EC1 and EU law on free movement of EU citizens. Directive 2003/86/EC does not apply to members of the family of an EU citizen, as stipulated in Article 3(3) of the Directive. Moreover, the UK is not bound by this directive. Article 21(1) of the Treaty on the Functioning of the European Union stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. The respective limitations and conditions are to be found in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. You can download consolidated version of the Directive in English at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0038:20110616:EN:PDF. As provided in Article 3(1) of Directive 2004/38/EC, this Directive only applies to EU citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. EU citizens residing in the Member State of their nationality cannot benefit from the rights granted to EU citizens who exercised the above right and moved to another Member State. However, the Court of Justice of the European Union extended this favourable treatment also to those EU citizens who return to their home Member State after having exercised their right and resided in another Member State2 and also to those EU citizens who have exercised their rights protected by the Treaty in another Member State without residing there3 (for example by providing services in another Member State without residing there). In the absence of any cross-border element, EU law on free movement of EU citizens does not apply and EU citizens residing in their countries of nationality cannot rely on it to be joined by their non-EU family members.
1 2

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification Judgments of the Court of 7 July 1992 in case C-370/90 Singh (Rec. 1992, p. 1-4265) and of 11 December 2007 in case C-291/05 Eind (Rec. 2007, p. 1-10719) Judgment of the Court of 11 July 2002 in case C-60/00 Carpenter (Rec.2002, p. 1-6279)

Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (+32-2) 299 11 11. Office: M059 06/68. Telephone: direct line (32-2) 297 44 57. Fax: (32-2) 297 95 86. - E-mail: JUST-Citizenship@eaeuropa.eu

In absence of applicable EU law, it remains fully up to the UK to lay down rules on the right of non-EU tamil y members to join its own nationals. Constant case law of the Court of Justice ruled that EU countries which decide to afford their own nationals not covered by EU law on free movement of EU citizens a less favourable treatment than that EU law obliges them to afford to those EU citizens falling under EU law on free movement of EU citizens is not contrary to EU law. Please note that the Court of Justice recently stated4 that EU countries in "very exceptional situations" may not refuse to issue an entry visa or residence documents to non-EU family members of EU citizens residing in the EU country of their nationality where the refusal would lead to "the denial of the genuine enjoyment of the substance of the rights conferred by the virtue of their status as citizens of the Union. " The Court of Justice further ruled that it is up to the national authorities and courts to assess on a case-by-case basis whether the EU citizens concerned and their non-EU family members find themselves in such an exceptional situation. Yours sincerely.

Chiara Adamo

Contact: Mr Michal Meduna, telephone: +32 229 59 508, m i c h a l . medunatójec.eurona.eu

4

Judgments of the Court of 8 March 2011 in case C-34/09 Ruiz Zambrano and of 15 November 2011 in case C-256/11 Dereci
2