We are Family? Same-Sex Partners and EU Migration Law

DOI10.1177/1023263X0200900402
Date01 December 2002
Published date01 December 2002
AuthorMark Bell
Subject MatterArticle
Mark Bell
9 MJ 4 (2002) 335
We are Family? Same-sex Partners and EU Migration Law
Family law is frequently assumed to lie outside the legal competence of the European
Union and to be an issue of marginal relevance to European Union law. Admittedly, a
cursory reading of the founding EU Treaties will confirm the absence of any Treaty
mandate for the Union to develop a family policy. Nonetheless, Community law has
impacted upon national conceptions of the family since its foundation. One of the
clearest and earliest examples can be found in Regulation 1612/68 on the free
movement of workers,1 which defines the persons constituting the ‘family’ of a migrant
worker. Various commentators have already noted the traditional, marriage-centred
vision of the family constructed by Community legislation.2 This view has been further
reinforced by the Court of Justice, which has generally declined opportunities to expand
further the definition of the family.3 Despite this established status quo, the concept of
the family in EC law is under renewed scrutiny. Two developments in particular are
provoking the current debate: first, the legislative programme to construct the Area of
Freedom, Security and Justice; and second, the proliferation of national family law
reforms leading to the legal recognition of non-marital couples, including same-sex
partners. This article commences by examining these driving forces in more detail. It
then proceeds to consider the various ways in which same-sex partners are being
recognized in the emerging Community law on asylum and immigration, as well as the
proposed reforms to free movement law. As will be identified, the concept of the family
University of Leicester. This article is based on research originally undertaken as part of ILGA-
Europe’s project on the Area of Freedom, Security and Justice, funded by the European Commission. I
would like to thank the members of the Board of ILGA-Europe and Mette Vadstrup for generous
advice and assistance. It was also presented in a seminar at Maastricht University in January 2002. I
would like to thank the participants for their constructive and thought-provoking comments.
1. [1968] O.J. Spec Ed (II) 475.
2. McGlynn, ‘A family law for the European Union?’, in J. Shaw (ed.), Social law and policy in an
evolving European Union, (Hart Publishing, 2000), 224; K. Waaldijk, ‘Free movement of same-sex
partners’, 3 Maastricht Journal of European and Comparative Law 3 (1996), 271, 278.
3. Case 59/85 Netherlands v. Reed [1986] ECR 1283; Case C-249/96 Grant v. South-West Trains [1998]
ECR I-621; Case C-122/99P and 125/99P D and Sweden v. Council [2001] ECR I-4319.
We are Family? Same-sex Partners and EU Migration Law
336 9 MJ 4 (2002)
in these instruments varies considerably and, at best, will produce only limited rights for
families based on same-sex partnerships. The concluding section explores legal avenues
through which the Union might reach a more settled agreement on its vision of the
family.
§ 1. A Pandora’s Box? European and National Debates on the Concept
of the ‘Family’
Community law definitions of the family are best reflected in Title III on ‘Workers’
Families’ in Regulation 1612/68. The migrant worker is entitled to be joined by ‘his
spouse and their descendants who are under the age of 21 years or are dependants;
dependent relatives in the ascending line of the worker and his spouse’.4 Other
dependent members of the family may be admitted, but there is no legal requirement on
Member States to do so.5 Despite the considerable social changes in the intervening
period, the 1990 Dublin Convention determining the State responsible for examining
applications for asylum6 defines ‘family member’ as not other than ‘the spouse of the
applicant for asylum or his or her unmarried child who is a minor of under eighteen
years, or his or her father or mother where the applicant for asylum is himself or herself
an unmarried child who is a minor of under eighteen years’.7 The axis between family
and marriage is found throughout a range of Community legal instruments, in areas as
diverse as company law8 and gender equality.9 Such instruments reveal an institutional
blindness to the situation of families not based on marriage. Specifically, same-sex
couples remain legally excluded from marriage in all states, bar the Netherlands. In
addition, in many European states, there are legal barriers to the marriage of couples
that include transgendered persons.10 Unsurprisingly, the exclusion of unmarried same-
sex and opposite-sex couples from Community law entitlements or protection has been
challenged on several occasions before the Court of Justice. Without examining the
4. Article 10(1).
5. Article 10(2).
6. The Convention came into force in 1997: [1997] O.J. C254/1.
7. Article 4. The Convention provides that applications for asylum shall be heard in a state where another
family member is already present, providing the applicant so desires and that family member is
recognized as having refugee status and is legally resident.
8. Article 2(2)(d), First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards
which, for the protection of the interests of members and others, are required by Member States of
companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to
making such safeguards equivalent throughout the Community, [1968] O.J. L65/8.
9. Article 2(b), Council Directive 86/613 of 11 December 1986 on the application of the principle of
equal treatment between men and women engaged in an activity, including agriculture, in a self-
employed capacity, and on the protection of self-employed women during pregnancy and motherhood,
[1986] O.J. L359/56.
10. Para. 57, Eur Ct HR, Goodwin v. UK, Application No 28957/95, 11 July 2002. Following the decision
in Goodwin that ‘the Court finds no justification for barring the transsexual from enjoying the right to
marry under any circumstances’ (para. 103), remaining obstacles in national laws will have to be
removed.

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