The right to family reunification under the Temporary Protection Directive and Council Decision 2022/382: Preserving family unity for the beneficiaries of temporary protection

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Georgios Milios, Serra Húnter fellow, Department of Constitutional Law, University of Barcelona
11 April 2022

With Decision 2022/382 of 4 March 2022, the Council of the EU activated for the first time the Temporary Protection Directive (TP Directive) for persons displaced from Ukraine as a result of the military invasion by Russian armed forces. Article 2 of the Decision provides that the protection is meant to cover Ukrainian nationals residing in Ukraine before 24 February 2022, stateless persons (or persons) who benefitted from international or equivalent protection in Ukraine before the same date and finally, their family members.

The Decision or adequate protection under national law should also apply to foreigners holding a permanent residence permit and may optionally apply to other foreigners legally residing in Ukraine before the date stated above. In these cases, the Decision states that beneficiaries should be unable to return to their country of origin, while their family members are not covered by the scope of the Decision. All the above is without prejudice to the fact that family members may benefit from other EU legislation such as the Family Reunification Directive or the Citizenship Directive in the case they are family members of third-country nationals or EU citizens already residing in the EU.

The present contribution will deal with the family reunification regime set out in the Council Decision and the TP Directive, focusing on the definition of family and the applicable rules to reunify separated families. It will also consider the Commission Guidelines for the implementation of the Council Decision, especially concerning issues related to documentary evidence of a family relationship. Given the absence of case law regarding the TP Directive, some reference to the family reunification of third country nationals or refugees under EU law is necessary for a better understanding of the scope and limits of family reunification in the framework of the TP Directive. Lastly, the contribution will approach the issue from a human rights perspective, explaining briefly the main principles applied by the European Court of Human Rights in family reunification cases.

It is important to have in mind that even though the Decision also activates protection for family members, the reference to the family reunification regime under the TP Directive is still relevant, especially with regard to family members of third country nationals residing in Ukraine who, according to the Decision, may not qualify for protection individually. Indeed, even though the Decision does not include those family members in its scope, Member States should consider granting them temporary protection considering that the Directive guarantees a right to family reunification to all beneficiaries of temporary protection without any distinction on the basis of migration or other status.

The definition of ‘family’

The Council Decision defines the concept of family in the same way as the TP Directive. The relevant provisions regarding family members of beneficiaries of temporary protection are Art. 2.4 of the Decision and Art. 15 of the TP Directive. According to these provisions, the term ‘family’ refers to: a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to foreigners, b) the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted and c) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time. Family ties should already exist in Ukraine before the beginning of the ‘mass influx’ set out on 24 February 2022.

There are several comments that should be made regarding the family relations that are included in the scope of the Decision and TP Directive. First, the requirement that the family relationship already existed in the country of origin is rather problematic and disregards the reality regarding the formation of family in the area of international protection. Indeed, persons in need of protection may spend a considerable amount of time in transit zones and/or camps before arriving at their final destination. According to the EU regulation applicable in international and temporary protection, family relations created after the departure from the country of origin and during the refugee journey are excluded from protection or reunification. It is true that this consideration might be less relevant for the case of Ukraine due to its geographical proximity with the EU. Nevertheless, it is still likely that this policy will affect certain family relations in practice. Indeed, family relationships formed, for instance, in neighbouring countries, such as Poland or Romania, after 24 February 2022 are excluded from the scope of the Council Decision.

Second, the fact that the unmarried partner is included in the concept of family only if the legislation or practice of the concerned Member States treats unmarried couples in a comparable way to married couples under its migration legislation is likely to hinder reunification and protection for unmarried partners. Indeed, the treatment of unmarried couples may differ among Member States, while same-sex partners may face additional obstacles. In light of current policies in countries like Poland or Hungary against LGBTIQ+ people, the fact that the treatment of unmarried couples depends on each individual Member State becomes particularly worrying.

Third, the TP Directive does not define the term ‘other close relatives’ that constitute family members in case they had lived together as part of a family unit at the time of the events leading to mass influx. This term is also used in the Dublin III Regulation[1] to refer to the applicant’s adult aunt, uncle or grandparent. Given the absence of a concrete definition in the context of temporary protection, we believe that an expansive interpretation that would cover relationships beyond those referred to in Dublin III would be the most adequate. It is worth mentioning that the Regulation on Asylum and Migration Management proposal (RAMM) in the EU Pact on Migration and Asylum includes the idea to extend the definition of ‘family’ to siblings of the applicant and families created in transit zones[2].

Fourth, the requirement that close relatives should be ‘wholly or mainly dependent’ implies an economic dependence and not merely dependence based on health problems or disability. Although the Directive also does not contain a definition of this term, case law from the Court of Justice of the European Union (CJEU)  already exists, interpreting this term in the context of other EU Directives in a rather broad manner[3]. Indeed, the CJEU has clarified that a situation of dependence should exist in the country of origin whereas Member States cannot require the dependent family member to have unsuccessfully sought employment in the country of origin. In addition, the fact that a family member may, due to their education or age, be able to find employment in the host EU country is an irrelevant fact for their consideration as a dependant.     

Another relevant issue in the field of family reunification is the required documentation to prove the existence of the family link. The Commission, in its  Guidelines for the implementation of the Council Decision, specifies that the existence of marriage or a partnership can be proven by ‘relevant registry documents and certificates or by any other document issued by the Ukrainian authorities, even attestations provided by the country’s representation in that Member State’. According to the same document, the parent-child relationship could be proven ‘by birth certificates or similar’, while the existence of ‘other close relatives’ could be proven by ‘residence documents, family register and proof of relevant payments of care’.

Given the circumstances and practical difficulties that persons fleeing from conflict zones face, it is important that Member State administrations adopt flexible practices in this respect. That being said, Member States should consider accepting any and all available evidence, including declarations, in the case that beneficiaries of temporary protection were not in a position to apply for or take with them the official certificates due to the circumstances that led them to flee.

The comparison with the definition of «family» contained in the Family Reunification Directive   

To have a clearer understanding of the definition of family in the framework of the temporary protection system, a comparison with the same concept in other EU legal instruments is necessary. As previously noted, the definition of ‘family members’ presents important differences among EU Directives[4].

Leaving special regimes on family reunification aside, in 2003 the EU adopted the Family Reunification Directive (FR Directive) that regulates the right to family reunification of third country nationals in the EU, while it also contains a specific Chapter regarding the reunification regime applicable to refugees. The Directive explicitly excludes beneficiaries of temporary protection from its scope[5] and it also does also not apply to beneficiaries of subsidiary protection[6].

Regarding the concept of family, the FR Directive provides for a restrictive definition that includes merely the sponsor’s spouse and the unmarried dependent children which the sponsor or the spouse has custody over. The already restrictive definition may be further limited as according to Art. 4.6, Member States may request that applications for family reunification with minor children have to be submitted before they reach the age of 15. Regardless of the fact that none of the Member States actually implements this derogation[7], it is representative of the restrictive perception regarding family in the migration management context.

According to optional provisions of the FR Directive, Member States may authorise the entry and residence of first-degree dependent relatives in the direct ascending line[8], adult unmarried children, where they are objectively unable to provide for their own needs due to their state of health[9] and unmarried registered or unregistered partners[10]. Regarding refugees, the definition of family contained in Art. 4 is still applicable, although Art. 10 of the FR Directive provides that if the refugee is an unaccompanied minor, Member States shall authorise the entry and residence of their first-degree relatives in the direct ascending line. Not least, Member States may optionally authorise family reunification of other family members not referred to in Art. 4, if they are dependent on the refugee[11] and the legal guardian or any other member of the family, where the refugee is an unaccompanied minor and has no relatives in the direct ascending line or such relatives cannot be traced[12].

Given the restrictive definition of family contained in the FR Directive, especially regarding obligatory provisions, it cannot be concluded that the TP Directive and the Council Decision provide for a narrower concept.

As seen above, Art. 15 of the TP Directive states that, in addition to the spouse and minor unmarried children, other wholly or mainly dependent relatives shall be considered as family, a situation that is only optionally provided for in the case of refugees. The above-mentioned conclusion is without prejudice to the fact that the FR Directive provides for a number of ‘may-provisions’ regarding family relations that are not explicitly included in the definition of family adopted by the TP Directive. It is important to have in mind that these may-provisions have been implemented in part by the EU Member States in both the immigration and the refugee context[13].

Regardless of the above considerations, the critique regarding the absence of a more de facto approach on what constitutes family and the importance of taking into account cultural elements, as well as the sociological evolution of family models in recent years is present in all EU legislation on family reunification, including the TP Directive.

Family members present in different Member States or third countries

In addition to the definition of family, Art. 15 of the TP Directive provides some applicable rules in the case of family members being present in different Member States or third countries. In that respect, the Directive introduces the wishes of family members and what is in the best interest of the child as the main criterion. At the same time, the provision places spouses, partners and minor unmarried children in a better position than ‘other close relatives’ as Member States are only obliged to bring family members together in the former case.

In particular, Art. 15.2 provides that in the case of family members enjoying temporary protection in different Member States, Member States shall reunify members of the core family, taking their wishes into consideration. Similarly, Art. 15.3 provides that in case the sponsor enjoys temporary protection in one Member State and one or some of their core family members are not yet present in any Member State, the Member State where the sponsor enjoys temporary protection is responsible for reuniting the separated family.

On the contrary, both of the above-described actions remain optional in the case of ‘other close relatives’, although the provision calls for a case-by-case consideration of the extreme hardship that family members are likely to face if family reunification does not take place. Not least, the same provision calls for the application of the principle of solidarity regarding the transfers between Member States for the purpose of family reunification[14] and regulates the issuance and withdrawal of residence permits and other documents[15].

In any event, it should be noted that according to Art. 29 of the TP Directive: ’Persons who have been excluded from the benefit of temporary protection or family reunification by a Member State shall be entitled to mount a legal challenge in the Member State concerned’.

The Member States’ human rights obligations implementing temporary protection

As a concluding remark, it should be highlighted that Member States should implement any EU or national legislation regarding family unification, taking into account their obligations deriving from international law. In that respect, it should be stated that the European Court of Human Rights (ECtHR) applies the so-called elsewhere approach in its case law regarding family reunification. According to this approach, a denial of family reunification may violate Art. 8 of the ECHR in the scenario that a family reunification cannot take place in another country, normally the country origin. Although I have previously criticised this principal for being rather restrictive in a migration context[16], the truth is that it may become directly applicable in a refugee context, including for those benefitting from temporary protection.

Indeed, in a refugee context, the ECtHR normally considers that there are insurmountable obstacles to establishing family life in the country of origin due to persecution and consequently declares a violation of Art. 8 in the case of a denial of family reunification[17]. It is highly likely that the same consideration applies in the case of a beneficiary of temporary protection due to the circumstances in Ukraine that led to the activation of the TP Directive. Therefore, a denial of family reunification to a beneficiary of temporary protection that may not exactly fall within the scope of the TP Directive, or a deficient implementation of the family rules described above, may lead to a violation of the ECtHR’s Art. This concern becomes more relevant if we take into consideration that the definition of ‘family’ adopted by the ECtHR is more de facto than the one referred to in the EU TP Directive and therefore certain relations are considered as family in the framework of the ECtHR’s case law but are not included in the scope of the TP Directive.

[1] Article 2 (h) of the Dublin III Regulation.

[2] See, article 2 (g).

[3] The concept has been mainly interpreted in the framework of the Citizenship Directive. See Case C-1/05, Jia (2007), ECLI:EU:C:2007:1 and Case C-423/12, Reyes (2014), ECLI:EU:C:2014:16.

[4] See Milios, G. (2021), ‘El derecho a la vida familiar de los extranjeros’, Comares.

[5] Article 3.2 (b) of the Family Reunification Directive.

[6] For a criticism regarding the absence of guarantees at EU level for beneficiaries of subsidiary protection see Milios, G. (2021), ‘Family Unity and International Protection – EU Regulation and its Compatibility with the ECHR’, Nordic Journal of International Law, No. 90, pp. 161-189.

[7] See Report from the Commission to the European Parliament and the Council on the Implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final.

[8] Article 4.2 (a) of the Family Reunification Directive.

[9] Article 4.2 (b) of the Family Reunification Directive.

[10] Article 4.3 of the Family Reunification Directive.

[11] Article 10.2 of the Family Reunification Directive.

[12] Article 10.3 (b)

[13] See Report from the Commission to the European Parliament and the Council on the Implementation of Directive 2003/86/EC on the right to family reunification, COM(2019) 162 final.

[14] Article 15.5 of the Temporary Protection Directive.

[15] Article 15.6 of the Temporary Protection Directive

[16] Milios, G. (2018), ‘The Immigrants and Refugees’ Right to “Family Life”: How Relevant are the Principles Applied by the European Court of Human Rights?’, International Journal of Minority and Group Rights,, Vol. 25, No. 3, pp. 401-430.

[17]On the insurmountable obstacles see, among others, Mengesha Kimfe v. Switzerland, no. 24404/05, 29 July 2010 and Realising the right to family reunification of refugees in Europe, Council of Europe Commissioner for Human Rights, 2017.