This
post and others published on our blog is the result of a fantastic British in Europe project, funded by the European Union, to inform, connect and empower UK
citizens in the EU who are covered by the Withdrawal Agreement (ICE).
Link to this article on BiE:https://www.britishineurope.org/articles/188089-family-reunification-rights-a-guide-to-core-family-members-rights
Family reunification rights: A guide to core family members' rights
Family reunification is fundamental for Withdrawal Agreement (WA) beneficiaries, whether their family members lived with them before the end of 2020 (the end of the transition period) or not. Would you like to reunite with a family member in your EU country of residence? Discover how the Withdrawal Agreement applies to you and your family.
WA family reunification rights can be divided into three main categories according to the type of family member: core family members, durable partners, and other family members. This short explainer concentrates on the rights of core family members. We will cover durable partners and other family members in future posts.
Who counts as a core family member?
Core family members include the following:
1. Spouse or registered partner
2. Dependent children and other direct descendants: children and other direct descendants under 21 or who are over 21 and can show dependence (including adopted children)
3. Dependent parents and other dependent direct ascendants
Note: categories 2 and 3 include the dependent children/direct descendants and dependent parents/other dependent ascendants of the spouse or partner under the Free Movement Directive (Directive 2004/38). In the case of the WA, these core family members are only covered if they resided in the host state before the end of transition (see below).
What are their rights?
Core family members have automatic rights to reside with a WA beneficiary under the WA if:
1. they resided in the host state before the end of transition (31 December 2020) in accordance with EU law as a family member and they still do so; or
2. they did not reside in the host state before the end of transition (31 December 2020) but they were directly related to the WA beneficiary before the end of transition, fell within the definition of family member under the Free Movement Directive and they still fall within that definition when they apply to move to join the WA beneficiary after the end of transition.
Spouses and registered partners: key points to note
Note: This section addresses the family reunification rights of spouses and registered partners only.
If a WA beneficiary’s spouse or registered partner wished to join them after the end of the transition period, they would need to demonstrate that they were married/registered partners before the end of transition and are still married/registered partners when the spouse moves to join the WA beneficiary.
WA beneficiaries who were not in a relationship before the end of transition have no rights to family reunification with a future spouse or registered partner under the WA. This is expected to have a disproportionate impact on younger WA beneficiaries.
Non-discrimination and gender
The principle of non-discrimination is a key aspect of family reunification, in particular, on the basis of gender. The term ‘spouse’ is to be interpreted as gender-neutral. Same-sex and opposite-sex marriages, civil partnerships (and durable relationships) are to be treated in the same way under the WA. This also applies to the children of both same- and opposite-sex couples. The EU Charter of Fundamental Rights refers to the right to family life (Article 7) and the principle of non-discrimination (Article 21). (See ‘Chapter 8: Non-discrimination and right to equal treatment’ of our Legal report.)
Children and parents/grandparents who were already living in the EU country of residence
As stated above, children under 21 are covered by family reunification rights.
Other direct descendants over 21, as well as parents and other direct ascendants, who were already residing with a WA beneficiary before the end of transaction and still do so are also covered.
Children and parents/grandparents who wish to move to join a WA beneficiary in future
Children under 21 will have an automatic right to move to join the WA beneficiary.
However, those over 21 and parents/grandparents who wish to move in future will have to show that they are dependent and, specifically, financially dependent on the WA beneficiary. Caselaw under the Free Movement Directive (Directive 2004/38) has developed the following criteria on dependence:
1. material support for the dependent relative must be shown as a matter of fact, taking into account their financial and social circumstances (even if there is no right to maintenance and they would be able to work to support themselves);
2. material support is assessed at the time of family reunification and usually in relation to the state of origin of the family member, although recent caselaw raises some exceptions to this;
3. documentary evidence of material support must be shown, by any appropriate means.
The criteria, however, do not refer to any specific level of standard of living to determine a need for financial support.
In practice, we often come across cases where an elderly parent wants to join their adult child in their host state without being financially dependent on them. Case law has held that free movement provisions are to be interpreted broadly. It might therefore be possible to try to argue that regular payments for property expenses or assistance such as cleaning and social care not covered by their pension might qualify as evidence of dependence but it would be better to seek legal advice on this.
It is important to note that family members who join a WA beneficiary do not later lose their rights when they are no longer dependent, for instance after becoming employed or turning 21. Both WA beneficiaries and family members may change status under the WA and the WA expressly provides that family maintain their rights after they cease to be dependents.
What are the rights of future children?
WA beneficiaries have family reunification rights for future children under the WA. Future children of WA beneficiaries will be covered by the WA if:
1. They were born to or adopted by a WA beneficiary, whether inside or outside the host state. If they were born or adopted outside the host state, they still fall within the definition of family member when they apply to move to join the WA beneficiary.
2. They can demonstrate one of the following:
- both parents are WA beneficiaries in the host state;
- one parent is a WA beneficiary in the host state and the other is a national of the host state;
- one parent is a WA beneficiary in the host state and has sole or joint rights of legal custody in line with the relevant applicable family laws.
Open questions
Although WA beneficiaries’ family reunification rights mirror in part those of EU citizens under the Free Movement Directive, they are much more limited. It also remains unclear whether family reunification rights are one-off rights or if family members of WA beneficiaries can exercise them more than once.
If you encounter issues with family reunification under the WA, or need further information, British in Europe and the country groups in our network are able to provide general advice and support but if you need advice about your legal position, we would always recommend that you contact Your Europe Advice. For further information on family reunification see our legal report.
ICE Project Legal Report on WA and Charter rights.pdf
