For whom I love I want to be known : the scope of EU citizens' family reunification rights : addressing legal fragmentation in the European Union’s multi-layered legal order

Family is everything, but the possibility to enjoy family life is not always self-evident. The right to exercise family life is a fundamental principle that is widely recognized in international human rights law, but this right does not include the privilege to choose a specific country where family life can unfold. Families who are disseminated over different countries are therefore dependent on the rules of migration law to be (re)united. The acknowledgment of a residence right to the family member of a national or resident of a State for the purpose of exercising family life is called family reunification. This thesis focuses on family reunification between EU citizens and their family members who are nationals from a country outside of the European Union. The competence to regulate these rights is divided between the European Union and its Member States. EU citizens who exercise free movement rights fall within the scope of EU law. EU citizens who remain in their home Member State fall within the scope of national law. National law often imposes more stringent requirements for family reunification than EU law. Nationals of a Member State are then reversely discriminated in comparison with EU citizens who exercise free movement rights. EU law itself also differentiates in the requirements that must be fulfilled to obtain a right to family reunification, but on the basis of economic status rather than nationality and residence of an EU citizen. In 1992, EU citizenship was introduced. Every person who holds the nationality of a Member State is also EU citizen. Historically, the concept of citizenship is connected to the principle of equality, which is also a principle of EU law. The introduction of EU citizenship led to questions about the compatibility of the differentiation between EU citizens’ rights on the basis of nationality, residence and economic status with this principle of equality, but the division of competences between the EU and its Member States makes it very difficult to overcome. Since then, there have been legislative and judicial developments which further fragmented family reunification rights for EU citizens. This fragmentation continues to be problematic from an equality point of view, and it causes legal uncertainty about the conditions which EU citizens must fulfill to enjoy family reunification rights derived from EU law. This thesis addresses these problems in two ways. First, the thesis aims to clarify the currently applicable legal framework. When is EU law applicable, and what conditions apply in which situation? Secondly, the thesis aims to connect the different developments in the field of EU citizens’ family reunification rights and aspires to find elements that could be used to redesign the legal framework and diminish fragmentation. The structure of the thesis follows the different steps that must be followed to determine whether an EU citizen is able to derive family reunification rights from EU law. First, it must be assessed whether the situation of the EU citizen who seeks to be reunited with his or her family members falls within the scope of EU law. Traditionally, this requires movement to or residence in another Member State. In the last two decades, the Court of Justice decided that in some situations EU law also applies to EU citizens who remain in the Member State of their nationality. In this case law, a development is visible towards the protection of a right to reside on the territory of the European Union as a whole. Secondly, it must be determined which family members of an EU citizen are eligible for family reunification. EU law provides a list of potentially eligible family members, but it is the competence of the Member States to define which relationships they recognize as family relationships within their national legal order. For instance, not all Member State recognize the same-sex spouse of an EU citizen as a family member. In recent case law, the Court of Justice restricted the discretion of the Member States to define which relationships qualify as family members of an EU citizen – at least for the purpose of exercising EU rights. Thirdly, it must be established which material requirements EU citizens and their family members must fulfill to effectuate their family reunification rights in EU law. Due to the fragmentation of family reunification rights, there are many different sets of rules that could apply. The requirements that must be fulfilled before a family member can derive a residence right form EU law vary depending on the nationality, residence, and economic status of the EU citizen. The differences between the different sets of rules are meant to strike a fair balance between the interest of EU citizens and the interest of the Member States, depending on the circumstances of the case. The thesis ends with a return to the discussion of the meaning of EU citizenship. At the time of its introduction, EU citizenship did not carry sufficient normative weight to effectively address inequality between EU citizens based on their nationality, residence and economic status, but since then much has happened. These changes possibly altered the constitutional character of the European Union and could offer an entry for real change