Part I - The Family in EU Law: Concept and Context

2 What Is a ‘Family’ in EU Law? Do EU Policies Sufficiently Address Family Diversity and Its Consequences?

Alina Tryfonidou

2.1 Introduction

The family is recognised in national laws and international human rights and other instruments as being a fundamental group in society deserving of protection. It has no official or universal definition – it means different things to different people and meets different needs for different people.¹ Moreover, the concept of ‘family’ is not common across geographical spaces and its social and cultural understandings are constantly shifting – it is a ‘highly elastic and changeable form’.² Accordingly, it is difficult – if not impossible – to provide a single, universal, definition for the notion of ‘family’ that encompasses the variety of relationships and forms of contemporary family life,³ and, as noted by another commentator, ‘we can never be quite sure what family means unless we can understand the context in which it is used’.⁴

This is the case even in the context of the European Union (EU).⁵ Despite the fact that the EU Member States share some common values,⁶ when it comes to the question of what constitutes a ‘family’, there appears to be great divergence among them, especially with regard to specific matters such as same-sex relationships, cohabitation, registered partnerships, and parenting in situations which do not involve a man and a woman who are married and who are both biologically connected to their child(ren). It is not surprising, therefore, that family law and matters that touch on family life are areas that remain tightly controlled by the Member States, as the Court of Justice of the EU (CJEU) has repeatedly reminded us in its judgments.⁷

The EU does not have the competence to legislate in the area of family law,⁸ and thus, in most instances, it falls on the Member States to determine whether a group of persons constitutes – in law – a family.⁹ Nonetheless, there are certain EU legal instruments which require the existence of familial ties to apply or to bestow rights on persons whose situation falls within the scope of EU law. Accordingly, from the early days of the EU’s existence, its legislature and judiciary have been confronted with the question of what constitutes a family for the purposes of EU law.

In the EU context, the prevalence of the nuclear family model – in secondary legislation and the case law interpreting it – has traditionally meant that the only valid form of family in EU law was one consisting of an adult male and an adult female who are married and live together in a single-state context and produce their own biological children. This model is also premised on the sexual division of labour: the man is the main breadwinner, whilst the woman is the homemaker.¹⁰ Nonetheless, although this continues to be the ‘gold standard’ under the law, recent years have witnessed a growing visibility of diverse family forms, which include single-parent families, rainbow families, reconstituted families, and families consisting of more than two adults who together parent their (biological and non-biological) children.¹¹ There is, also, an increasing departure from the traditional sexual division of labour, with women and men often equally engaging in earning as well as caring activities.¹² Moreover, the modern family is often characterised in terms of flux and fluidity. Many families conduct their lives across borders, live under different roofs or, even, in different countries. The above changes can be attributed to a combination of social and other trends, including shifting gender relations, globalisation, evolving employment patterns, and an increased acceptance of conjugal relationships outside marriage as well as of same-sex relationships.¹³ Of course, to use the words of Advocate General Geelhoed pronounced twenty-three years ago in his Opinion in Baumbast, ‘none of these phenomena are really new; it is merely that the intensity with which and the scale on which they now occur have become so considerable that the [EU] legislature must take account of them’.¹⁴

Some EU Member States are already acknowledging this changing landscape of family life in their law and policy. But has the EU been influenced by this? The aim of this chapter will be to consider whether the EU has remained faithful to the traditional ideology of the nuclear family or whether it has kept pace with recent developments by embracing a notion of the ‘family’ that is broad enough to encompass all diverse forms of family and goes beyond the male breadwinner / female carer model of heterosexuality. Moreover, I will consider whether the increasing (intra-EU) migration that has been brought about by European integration and – more broadly – the process of globalisation, with the resultant internationalisation of families and family life, has been taken into account by the EU when determining whether a group of persons can be considered a family for the purposes of EU law. To answer the above questions, there will be an examination of the concept of ‘family’ employed across a spectrum of fields of substantive EU law – free movement law, anti-discrimination law, and immigration law. The chapter does not claim to exhaustively cover all areas of EU law which demonstrate the EU’s approach towards the notion of the ‘family’, nor does it cover the three fields of substantive EU law on which it focuses in their entirety; rather, a few of the most characteristic examples from each of the chosen areas have been selected. The chapter concludes that there is no single, overarching, definition of the family under EU law, but, rather, there are different definitions in different areas of EU law that are – still – underpinned by the traditional nuclear family model which has as its basis heterosexual marriage and genetic parenthood.¹⁵

2.2 The Traditional Nuclear Family Model under Early EU Legislation

The process of European economic integration began in the 1950s, taking the form of three economically orientated Communities.¹⁶ Accordingly, just like with fundamental (human) rights for which the Treaties made no provision simply because it was unlikely that the promulgation and implementation of EU policies would give rise to their breach,¹⁷ the founding Treaties were not concerned at all with the concept of ‘family’ or any related family rights or entitlements. This was for the simple reason that these were matters that were for the Member States to decide and in relation to which the EU had – and still has – no competence and, back at the time it was thought, no impact.¹⁸

The first time that EU law made provision for families was in the 1960s, with Regulation 1612/68.¹⁹ The Regulation had as its main aim to bolster the free movement rights that were granted to workers by the European Economic Community (EEC) Treaty. For this purpose, it introduced the notion of ‘family reunification’, which required the Member State to which a worker moved to automatically accept certain of his/her family members within its territory without applying its immigration requirements. Provision for such family reunification rights was subsequently extended to other categories of free movers – the self-employed²⁰ and, in the 1990s, the economically inactive.²¹

Although the pieces of legislation that followed employed gender-neutral language or inclusive – albeit binary – language (by employing the pronouns ‘he’ and ‘she’) when referring to the migrant and his/her family members,²² the first piece of legislation granting family reunification rights to migrant Member State nationals – Regulation 1612/68 – used the pronoun ‘he’ throughout when referring to the worker that would be joined by ‘his’ family. This way, it demonstrated the prevalence of the male breadwinner model.²³ The use of the male pronoun precisely demonstrates that the legislative drafters at the time could not envisage a situation whereby a woman would choose to move between the EU Member States for career purposes and her family would follow. The model treated ‘women and children as the non-productive appendages of male workers’.²⁴ Of course, the Court has interpreted all the instruments providing family reunification rights to migrant Member State nationals (including Regulation 1612/68) as applying to both male and female ‘sponsors’ of family reunification rights, and, thus, no distinction has been drawn between men and women in the interpretation and application of these instruments.²⁵

As regards categories of family members, provision for automatic family reunification rights in all instruments (apart from Directive 93/96, which only granted such rights to the spouse and the dependent children of the migrant Member State national and his/her spouse) was only made between the migrant and (a) his/her spouse and their descendants under the age of twenty-one or dependants, and (b) dependent relatives in the ascending line of the migrant and his/her spouse.²⁶ The initial instruments covering the economically active, namely Regulation 1612/68 and Directive 73/148, also provided, respectively, that ‘Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes,’²⁷ and ‘Member States shall favour the admission of any other member of the family of a national referred to in paragraph 1(a) or (b) or of the spouse of that national, which member is dependent on that national or spouse of that national or who in the country of origin was living under the same roof.’²⁸

When it comes to adult conjugal relationships, only marriage was, initially, considered a family relationship which could give rise to automatic family reunification rights. Αt the time, the status of civil partnership was inexistent in Europe and beyond. Moreover, it would have been even less likely back in the 1950s and 1960s to recognise unmarried partners as constituting a ‘family’, given that cohabitation outside marriage was often, at the time, frowned upon. And even in the 1980s, in the Reed case,²⁹ when the CJEU was confronted with the question whether the unmarried partner of a migrant worker could be considered his ‘spouse’ and, thus, could automatically join him in the host Member State, the Court held that only marital relationships can fall within the notion of ‘spouse’ for the purposes of Article 10 of Regulation 1612/68. In the same case, nonetheless, the Court recognised that migrant workers would need to be allowed to be accompanied by their unmarried partners in the host Member State – in case this right was granted to the nationals of that State – to ensure they would not be discouraged from moving. This right to be joined by their unmarried partners was designated as a social advantage for the purposes of Article 7(2) of the same Regulation, which meant the host Member State would need to extend it to non-nationals if it already granted it to its own nationals. Alternatively, in situations where the host Member State did not grant to its own nationals the right to be joined by their unmarried partners – and, thus, Article 7(2) did not apply – the migrant worker would be able to rely on Article 10(2) of the Regulation to claim family reunification rights with ‘any other member of the family’ of the worker. However, this merely required the host Member State to ‘facilitate’ admission of the family members who fell within those categories. The right was, thus, not automatic.

As regards ‘descendants’, that is, the children of the worker and his/her spouse, not much detail was provided in the legislation, apart from the fact that they should be either their dependants or under twenty-one years of age. The legislature, as well as the Court when interpreting the older pieces of legislation mentioned in this section, did not have the opportunity to clarify whether this would include children who were not biologically connected to either the migrant Member State national or his/her spouse, such as, for instance, adopted children or children conceived through assisted reproduction techniques where both the sperm and the egg were donated. McGlynn has pointed out that it would be ‘repugnant’ if the Court excluded such children from the scope of these provisions.³⁰ In any event, the Court had made clear that to be recognised as a ‘descendant’ it is not necessary that the child is biologically related to both spouses. In Baumbast, it was held that the step-children of the worker can also be considered as ‘descendants’ for the purposes of Article 10 of the 1968 Regulation. In this way, in one of the most important cases where the old legislative regime was interpreted, the notion of ‘family’ was extended to include reconstituted families which is already a departure from the traditional nuclear family model. This is notwithstanding the fact that, still, a marriage between a man and a woman forms the central relationship that bonds the family together.

In addition, in a series of cases, the Court devised the notion of the ‘primary carer’ that is, a third-country national who is the primary carer of a child who is either the direct beneficiary of free movement rights³¹ or derives rights through his/her relationship with a Member State national who has exercised free movement rights.³² From this case law, it can be observed that it is mainly women who were assigned the role of primary carer of children and other dependants despite the fact that some of them were equal or – even primary – contributors to the family finances. And this is so even in more recent case law.³³ This was also seen, albeit less explicitly, in the well-known Carpenter case where the Court did not employ the term ‘primary carer’ but may have based its reasoning on the fact that the wife of the Union citizen who was also the step-mother of his children needed to be allowed to stay in the United Kingdom to take care of her step-children so that her husband – a Union citizen – could travel between Member States and offer his services in a cross-border context.³⁴

In CJEU jurisprudence, it is thus women who have carried the double burden of labour market participation and expectations at home as the primary carers of children as well as homemakers.³⁵ Especially in the early years when the EU focused mainly on its market-building ambitions, taking care of the home and the children were not ‘valued’ as much as participation to the market and, thus, women who focused on home-building and child-care responsibilities were disadvantaged.³⁶ Moebius and Szyszczak noted back in 1998 that ‘Community law maintains a rigid distinction between the market and the domestic sphere which perpetuates gender stereotyped roles for men and women and upholds discrimination in national laws’.³⁷

It could be asked whether in the majority of cases it simply happened that it was the mother who was the primary carer of the child, and that if it had happened that the primary carer had been the father, the Court would have been equally willing to consider him a ‘primary carer’ and grant him a derivative right under EU law. This can be answered positively as, not only does the Court use gender-neutral terms when referring to the primary carer in its case law but, also, in Rendon Marín, it held that a father was the primary carer of his two minor children.³⁸ This way, the Court indicates that a man, too, can be considered as bearing that role. Moreover, the assignment of the role of the ‘primary carer’ to the mother in the majority of cases can be attributable to the fact that it were the parties to the case themselves who claimed that the mother of the child was the primary carer. Hence, the Court’s assignment of this role to the mother has been prescribed by the parties to the cases and cannot be attributed to perpetuated gender-stereotyped roles for men and women maintained by the Court.

Finally, by selecting to grant family reunification rights only to ‘spouses’, the old legislative regime excluded by default same-sex couples from automatic family reunification rights given that same-sex marriage was only introduced in 2001, and in only one EU Member State – the Netherlands. The same approach was followed by the Court when in two cases in the late 1990s and early 2000s it was confronted with the question of whether same-sex unmarried partners³⁹ and same-sex registered partners⁴⁰ should be treated as equivalent to opposite-sex spouses for the purposes of, respectively, EU anti-discrimination law and the EU staff regulations. In its judgments, the Court stated in a truly homophobic fashion that same-sex relationships, whether legally recognised or not, could not be treated as equivalent to opposite-sex relationships.⁴¹

From the above analysis, it can be concluded that the initial EU instruments which took into account familial ties for the purpose of bestowing rights stemming from EU law were based on a nuclear family model which only recognised as a family married couples and their parents and children. Hence, these persons were entitled to automatic family reunification rights. Of course, this rather narrow approach should be placed within the social and legal context in which the six founding EU Member States were operating. Admittedly, this context was more homogeneous than the EU of today whose membership has expanded to twenty-seven.⁴² Hence, at a time when all Member State family laws made provision for marriage as the only legally recognised status for couples, it does not come as a surprise that the only status that turned two adults into a family for the purposes of EU law was marriage, which was available only between two persons of the opposite sex. At the time that the founding Community Treaties, as well as the European Convention on Human Rights (ECHR), were signed, even consenting sexual relationships among adult males remained a crime within many of the participating countries,⁴³ and thus, legal recognition of same-sex relationships and the parenting rights of same-sex couples were not even contemplated when the original pieces of EU legislation that made provision for family reunification rights were drafted. Similarly, in the 1950s, and until not too long ago, the male breadwinner model was prevalent across the world including within the founding EU Member States and, hence, the assumption was made by the EU legislature that it would be the paterfamilias that would decide to move for economic purposes, and that it would be his wife and children that would need to move with him.

2.3 The Current EU Legal Framework: A Departure from the Traditional Nuclear Family?

The question that this section aims to answer is whether the current EU legal framework has departed from the traditional nuclear family model. For this purpose, it will be examined whether the current legal framework covers same-sex spouses and the children of same-sex parents, whilst it will also be considered whether there is evidence of a departure from the traditional male breadwinner/female homemaker model.

Currently, there are only a few pieces of EU legislation that include the term ‘family’ as a concept which activates legal consequences. The term is not mentioned at all in the Treaty on European Union (TEU), whilst in the Treaty on the Functioning of the EU (TFEU) it is only used to refer to ‘family law’ or ‘family reunification’.⁴⁴ In secondary legislation, the term ‘family’, either alone or with other terms, is used more widely. For instance, the terms ‘family’, ‘family life’, ‘family members’, ‘family situation’, and ‘family relationship’ are included in Directive 2004/38,⁴⁵ which has repealed and replaced all of the previous secondary law instruments governing the rights to free movement and residence of EU citizens (including family reunification rights), which were mentioned in the previous section. Similarly, Directive 2003/86,⁴⁶ which lays down the family reunification rights that third country nationals enjoy under EU law, makes extensive use of the terms ‘family’, ‘family relationship’, ‘family life’, ‘family ties’, and ‘family members’.

Despite the replacement of the old legislative regime with new instruments which came into force in the wake of the new millennium, the traditional nuclear family remains the ideal of the family around which the majority of the existing legislation revolves. This is obvious, for instance, in the EU’s immigration policy and, in particular, in Directive 2003/86, where recital 9 provides, ‘Family reunification should apply in any case to members of the nuclear family, that is to say the spouse and the minor children.’⁴⁷ For other relationships, Member States maintain their discretion:

It is for the Member States to decide whether they wish to authorise family reunification for relatives in the direct ascending line, adult unmarried children, unmarried or registered partners as well as, in the event of a polygamous marriage, minor children of a further spouse and the sponsor. Where a Member State authorises family reunification of these persons, this is without prejudice of the possibility, for Member States which do not recognise the existence of family ties in the cases covered by this provision, of not granting to the said persons the treatment of family members with regard to the right to reside in another Member State, as defined by the relevant EC legislation.⁴⁸

Marriage between two persons of the opposite sex is still the law’s ‘gold standard’ at both EU and Member State level, which means that anything resembling it may be recognised and regulated by the law insofar as it is performing similar societal functions. This becomes obvious when we look at the text of Directive 2004/38, which explicitly notes that registered partners are considered ‘family members’ of Union citizens only if the host Member State treats registered partnerships as equivalent to marriages.⁴⁹ In other words, only registered partnerships (whether opposite-sex or same-sex) which are treated – under the law – as marriages, deserve to be automatically recognised as a familial relationship for the purposes of EU law. Similarly, in 2018, the Court was in Coman called to clarify the meaning of the term ‘spouse’, for the purposes of the 2004 Directive.⁵⁰ It held that same-sex spouses are included within the term ‘spouses’ for the purposes of Article 2(2) of the Directive and, thus, enjoy automatic family reunification rights. Hence, same-sex couples whose relationship conforms to the ‘marriage ideal’ are for the purposes of Directive 2004/38 brought within the scope of privileged relationships. Nonetheless, in Coman, the Court was also careful to emphasise the limitations attached to its pronouncement, ensuring that the interpretation of the term ‘spouse’ to include same-sex spouses is only applicable in cross-border situations and only for the purpose of granting family reunification rights. In this way, the Court avoided to appear as if imposing same-sex marriage on all Member States through the back door.⁵¹

When the members of a couple formalise their relationship either by marrying each other or by entering into a civil partnership which is equivalent to marriage, the EU legislator assumes that this constitutes sufficient evidence of their commitment to each other. Thus, formalising the relationship entitles the couple to automatic family reunification rights. As Alan Brown has noted, the extension of legal regulation to adult relationships which possess ‘marriage-like’ conjugality illustrates the significance of this idealised image of the nuclear family within the legal understanding of the family.⁵²

Nonetheless, marriage and civil partnership are by no means the only models for partnership between adults who together form a family. Although, in view of the increase in cohabitation outside marriage, one would have expected that recent legislative initiatives would make provision for unmarried/unregistered couples, this has not been the case. Instead, a privileged position has been maintained for married couples or couples who, albeit not married, have chosen to formalise their relationship by making a commitment which is – perceived to be – equivalent to the commitment made by married couples. Hence, although Directive 2004/38 – unlike the previous legislative regime – makes an explicit reference to unmarried partners, it nonetheless relegates them to the less privileged Article 3(3) category, which does not grant automatic family reunification rights.

Hence, McGlynn’s point from eighteen years ago still holds true today: ‘While a marriage does not have to fulfil the ideals of marriage for there to be “family life”, a non-marital relationship has to be proven to be the match, at least in ideal terms, of marriage. The marriage contract, therefore, acts as a barrier to further intrusion into the relationship, and the functions of marriage are deemed to exist.’⁵³ This is reflected not only in the Court’s approach towards marriage, which is, in all circumstances, considered to suffice for establishing family life (irrespective of the quality of the relationship) but also in its approach to situations where a marriage has broken down. In such instances, the Court has refrained from examining the particular circumstances of the case, noting that as long as the breakdown of the relationship is not officially established through a final divorce, the marriage is still considered as existing for the purposes of EU law.⁵⁴ This is so even if the spouses reside separately and with new partners,⁵⁵ the only exception being when the Union citizen from whom the rights are derived has left the host Member State prior to the issuance of the divorce.⁵⁶ This appears to be in contrast to the approach prevailing in the European Court of Human Rights (ECtHR) case law where all circumstances are taken into account to determine whether two or more persons enjoy family life together. As Stalford has observed, the CJEU has adopted a more ‘formulaic approach’ than the ECtHR, ‘whereby the existence of genuine family life is irrelevant for the purposes of activating family rights under the free movement provisions’ and what counts is ‘the existence of a formal legal or biological link to confer the protection and entitlement of the free movement provisions’.⁵⁷

Directive 2004/38 has also been interpreted by the Court as applying only to family members who are joining or accompanying the Union citizen in the host Member State.⁵⁸ This demonstrates that in the Court’s view, families do not conduct family life across borders and a disruption to enjoying family life which is conducted in a cross-border context is incapable of impeding the free movement rights of Union citizens. This approach can be seen in the 2012 judgment in the case of Iida, where the Court refused to require a Member State (Germany) to grant the right of residence for the purposes of family reunification to a Japanese national whose wife and daughter had left Germany and moved to Austria where the wife worked.⁵⁹ One could have argued that if Mr Iida had lost his right to reside in Germany and, thus, would need to leave that Member State, this could have interfered with the right to family life of his wife and daughter who were both Union citizens, and, as a result, impede their right to move to Austria.⁶⁰

One can, of course, question the logic of the Court in cases like Iida. This is so especially in the light of Coman, which involved a married same-sex couple who had initially lived together for four years prior to their marriage but – due to the fact that they worked in different countries – they subsequently did not live in the same country, even after they married. In Coman, the Court held that the situation fell within the scope of EU free movement law and that family reunification rights should be granted because the couple claimed the right to move together to the Member State of nationality of one of them. In Iida, the third country national spouse wished to continue residing in the Member State of origin of the family, even after the family members who were Union citizens had moved to another Member State.

My argument is not that the Court should have refrained from granting family reunification rights in Coman. Rather, my argument is that Union citizens and their family members should not be deprived of family reunification rights in situations like the one in Iida simply because all the members of the family do not live in the same Member State. As Advocate General Wathelet noted in his Opinion in Coman,

In a globalised world, it is not unusual for a couple one of whom works abroad not to share the same accommodation for longer or shorter periods owing to the distance between the two countries, the accessibility of means of transport, the employment of the other spouse or the children’s education. The fact that the couple do not live together cannot in itself have any effect on the existence of a proven stable relationship … and, consequently, on the existence of a family life.⁶¹

Although the Court did not make any explicit statements regarding this point in Coman, it is clear from the judgment that it did not consider that the fact that the couple spent time living apart in different countries and even different continents precluded them from establishing family life. Accordingly, since the Court, in principle, appears to accept that family life can be conducted across borders, it should no longer insist that family reunification and related rights should only be granted if the family members move to the same Member State as the Union citizen.⁶² If an obstacle to free movement can be proven to emerge as a result of a change in the ‘status quo’ of the family arrangements, this should suffice for finding a breach of EU law and for requiring the grant of family reunification rights.

Leaving aside conjugal relationships and moving on to consider the position of children, it will, again, be argued that the centrality of the nuclear family model means that, in general, the children who live in ‘alternative families’ often remain marginalised and largely excluded from many of the entitlements and benefits of Union membership.⁶³

The last few years have shown a desire on the part of the EU to ensure that all children – irrespective of the family in which they live – should be treated in the same way under EU law. In 2019, for instance, the Court made it clear that children who are not biologically related to either of their (adoptive) parents can be considered as their parents’ ‘direct descendants’ for the purposes of Directive 2004/38.⁶⁴

More recently, the Court was invited to answer the more controversial question of the cross-border legal recognition of the familial ties among the members of rainbow families in a case which involved a baby girl whose parents were two persons of the same sex. Until recently, it was unclear whether Directive 2004/38 and, in particular, the terms ‘direct descendant’ and ‘direct relatives in the ascending line’ covered the members of rainbow families. This had given cause to Member States which do not recognise two persons of the same sex as the joint legal parents of a child, to refuse to recognise the legal ties among children and both of their (same-sex) parents – as these were established in another Member State – when families sought to claim rights deriving from EU law in their territory.⁶⁵ This issue was recently clarified by the Court in the V.M.A. case,⁶⁶ when it ruled that the term ‘direct descendants’ in Directive 2004/38 should be interpreted as including the children of same-sex couples who should, thus, enjoy automatic family reunification rights with the parent or parents who are Union citizens and exercise free movement rights.⁶⁷ Moreover, in the same case, the Court held that all EU Member States are required to recognise the parent–child relationship between a child and both of her same-sex parents, which was established in the host Member State where the family lives and was attested in a birth certificate issued by that State, for the purpose of permitting the child, who is an EU citizen, ‘to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States’.⁶⁸ Hence, V.M.A. has established that the children of same-sex couples can enjoy – with both of their parents – at least⁶⁹ family reunification rights under EU law, in the same way that the children of nuclear families do. Children may either be ‘sponsors’ of these rights if they themselves are Union citizens, or beneficiaries through their Union citizen parent or parents.

Recently, marking a departure from the nuclear family model, the Commission has signalled its intention of securing the right of all children to have their relationship with their parents – as established in an EU Member State – legally recognised across the EU. In December 2022, the Commission submitted a proposal for a Regulation which lays down rules on international jurisdiction on parenthood determining which Member State’s courts are competent to deal with parenthood matters; rules on the applicable law, which designate the national law that should apply to parenthood matters in cross-border situations; and rules on the recognition of judgments and official documents on parenthood issued in another EU Member State.⁷⁰ Although the proposed instrument applies to all families in situations where there is a cross-border element and, thus, obviously, families that fit the nuclear family model can benefit from it, it will in practice mostly be of interest to so-called ‘alternative families’. This is due to the fact that it is mostly the latter type of families that face difficulties with the recognition of family ties among their members in cross-border situations.

Finally, since the 1970s, there has been a concerted effort to depart from the male breadwinner/female homemaker model by adopting measures aiming to achieve a reconciliation of professional and family lives, especially for women. The slow departure from this model is most recently reflected in Directive 2019/1158 on work–life balance for parents and carers, which came into force in 2019 and in which, also, the EU legislature made a conscious attempt to depart from the traditional nuclear family model albeit, as will be explained below, in a rather half-hearted manner.⁷¹ It has been noted that the ‘Directive aims to modernise the EU legal framework in order to allow parents and carers to better balance their life and work commitments, and to ensure equality between men and women regarding employment opportunities and treatment at work’.⁷² The Directive acknowledges the existence of alternative families which do not conform to the nuclear family model. For example, it introduces the right to paternity leave for at least ten days upon the birth of a child for fathers or equivalent second parents but only where and insofar as recognised by national law; and it defines parental leave as leave that can be taken upon the birth or adoption, in this way removing any emphasis from the existence of genetic links between a child and their parents. However, the Directive states that the Member States ‘have the competence to define marital and family status, as well as to establish which persons are to be considered to be a parent, a mother and a father’.⁷³ Thus, when it comes to alternative families and, in particular, rainbow families, reconstituted families, and adoptive families, the Directive leaves it entirely up to the Member States to determine whether they will grant parental leave. This demonstrates the half-hearted approach of this instrument. Although the intention is to extend the availability of parental leave to alternative families, in practice, this is entirely dependent on the choice of the Member States.

2.4 Conclusion

EU family law now recognises that more family forms count as a family than it did in the 1950s and 1960s. Yet, as the above analysis has shown, the influence of the nuclear family ideal still prevails. This continuing centrality of the nuclear family model sits uneasily against the complex and diverse family forms that currently exist within the EU. Regardless of legislative reforms both at national and EU level, and changes in social demographics and the growing diversity of familial practices, the legal understanding of the ‘family’ under EU law continues to be centred around the traditional nuclear family model consisting of the nexus of the conjugal relationship and the parent–child relationship. In the meantime, it is still assumed that families live under the same roof and within the same Member State. Although an attempt has been made to slowly depart from the male breadwinner / female carer model, this model is still very much embedded within the societal and legal structure. Thus, despite the fact that there are bits and pieces of EU law that demonstrate acceptance of a greater diversity of family forms, the EU legal system continues to conceptualise all families through the prism of the nuclear family. This is problematic for the regulation of the diversity of family forms and practices in contemporary EU as it marginalises, excludes, and potentially discriminates against anyone who does not conform to this model.

3 What Makes the Family Special?

David Archard

3.1 Introduction: EU Law and the Family

Article 8 of the European Convention on Human Rights accords everyone the right to respect for their private and family life. Article 12 accords everyone of marriageable age the right to marry and found a family. The family is thus a significant and valuable social unit as far as the EU is concerned. However, inasmuch as under law a family is the locus of interrelated rights and responsibilities, as well being for its members a ground for benefits, it matters what counts as a family. Yet the European Union (EU) does not legislate on critical family issues such as divorce, the custody and guardianship of dependent children, and the financial responsibilities of spouses. The relevant laws are left to Member States although the EU does have rules, for instance, in those cases of spouses from different EU countries with different laws on divorce.

The EU also accords benefits to family members across different countries. These will be lost to UK citizens after Brexit in 2016.¹ Most centrally the EU guarantees freedom of movement between states. The Directive which accords this right to all EU citizens states that it should be extended to ‘all family members irrespective of nationality’.² Yet in that case, enjoyment of these benefits broaches important questions of who counts as a member of a family.³ There is an increasing body of case law by the Court of Justice of the EU (CJEU) defining what it is to be a family member, and which has been criticised for its presumed traditional view of a ‘family’ as a nuclear one.⁴

The problem facing EU law concerning the family is simple and understandable. The family is valuable and should be legally protected but there need be no agreement across different EU states as to what counts as a family and who its members are. This, in turn, reflects major social developments and extraordinary changes in family structures over the last hundred years. These have led many not simply to point out that the traditional nuclear family no longer predominates, but to doubt both whether it is even possible to think of a single concept of ‘the family’, and whether the family deserves any special legal protection. In what follows, I examine these changes and evaluate the claims that the concept of a family no longer has meaning and that the family should not be seen as meriting a special status in EU or indeed in any national law. In sum, I conclude that there is such a thing as a family but that there can be reasonable disagreement about what should be defined as a family. At the end I shall say something about this in the context of moves to harmonise or even unify EU family law.

The essential changes in family structure are evident in all EU countries.⁵ However, they are nicely illustrated and evaluated in a recent UK Report. In September 2022, the UK’s Children’s Commissioner published Part One of a Review into Family Life commissioned by the government.⁶ In its own words, it ‘paints a unique and comprehensive picture of family life today. It focuses on what families look like in modern Britain, defines for the first time what exactly is protective about them, and looks at the unique experiences of children for whom the state is their parent.’ The Review was informed by interviews with thousands of children and families across the country, an analysis of existing data sets, and conversations with stakeholders and experts as well as a review of the existing relevant literature.

The Review intends that this comprehensive survey of family life can and should inform law, policy, and the provision of appropriate services in respect of the family. Two key claims of the Review are as follows. First, the traditional two-parent family is in decline in the UK (as it is elsewhere in Europe). Forty-four per cent of those born in the UK in 2000 will have spent some of their childhood up to the age of seventeen outside such a family compared with 21 per cent of children born in 1970. Second, what matters to their members is the quality of family relationships rather than the composition of the family.

From its survey of family members, four themes emerged: ‘the emotional importance of connection within families; the importance of shared experience for family life; the unconditional support, both practical and emotional, from within families; and the strong, positive, and enduring relationships found in families. These factors were present in families of all shapes, sizes, and compositions.’

A simple summary might be as follows: the traditional family form is no longer the predominant one, but what is critical is whether and how the family, in whatever form it takes, is able to provide what it is that makes the family valuable and indeed special to its members. That claim is subject to two important critical responses: first, the multiplicity of family forms, of which the traditional family is only one, shows that there is no such thing as ‘the family’; second, the family is neither unique nor special in providing what it is that is claimed to be its defining value. This double-headed response needs careful analysis not least because it would seem odd to deny both that there is such a thing as the family and that it is not special. What is ‘it’ if not ‘the family’?

It is worth noting, first of all, that the Review lists the valued factors of family life in a chapter titled ‘What defines family?’ However, the word ‘define’ used here cannot mean identify or pick out what something is; rather it means what it is that makes something especially valuable. Yet, the counterpart to the summary claim quoted above, ‘These factors were present in families of all shapes, sizes, and compositions’ is ‘These factors were nevertheless absent from some families of all shapes, etc.’ This latter claim is not stated nor implied. But it is evidently true. Some families fail to provide the emotional support, connection, love, and enduring relationships that characterise other families. Hence, these features do not define what a family is; they do not hold true of all families. Rather they characterise what makes families that exhibit those features special. It also, importantly, motivates law and policymakers to support and facilitate the creation of those families that are special in the indicated sense.

The two elements of the response – that there is no such thing as the family and the family is not special – conjoin to subvert the importance the family assumes in law and policy. Expressed rhetorically and in a challenging manner, the response asks, why use legal and other measures to privilege and protect ‘the family’ which no longer exists and which, anyway, lacks whatever might justify its special treatment?

In what follows, I will examine the double response. First, I want to rebut the claim that there is no such thing as ‘the family’; second, I want to defend the view that the family, minimally and functionally defined, is special. The first part has already been set out elsewhere, but I will summarise and further clarify my arguments in the following section.⁷

3.2 The Concept of ‘the Family’

As Raymond Williams showed in his 1976 work Keywords, ‘family,’ deriving from ‘familiar’ (from the Latin ‘famulus’ which denotes a servant), was, initially, a household of servants and blood relations. After the seventeenth century and especially after the nineteenth, it came to connote the conjunction of a shared household or residence and ‘kin’ or blood relations. A family on this modern account is a set of consanguineous co-residential individuals. In its classic ‘nuclear’ form, the family comprises a married, heterosexual, couple with their biologically related offspring living in a single home.⁸

However, social, legal, demographic, and biological developments over the last hundred years – at least in the global North – have seen extraordinary changes in the family. This need no longer conform to the nuclear template. Its adult members may be single or plural; they need not be heterosexual, married, or in an intimate sexual relationship; the dependent children need not be biologically related to the adults; and there need not be a single shared residence.

The response from social science to these developments in family forms has been to resist the use of the term ‘the family’. According to a now familiar sociological orthodoxy, we should not use the definite article. Instead, we should pluralise or abandon nominative usage in favour of adjectives and adverbs. Thus, rather than talk about the family, we should use the term ‘families’.⁹ Or we should speak of ‘familial’ practices and ‘doing families’.¹⁰ At best, according to some, we might retain the noun and its definite article but only with a qualifying and restrictive adjectival phrase, such as ‘post-modern’¹¹ or ‘post-familial’.¹²

I am unsympathetic to these moves and note that some sociologists have begun to criticise the orthodoxy.¹³ But here are my reasons in brief, summarising and further clarifying what is argued in my 2018 chapter.

First, I see no reason to abandon the use of a single concept simply because it covers a multiplicity of different instances. No one proposes giving up the concept of ‘house’ because houses come in different sizes and shapes, and have various kinds of material composition. Indeed, there is something entirely self-defeating about arguing as follows: there is such a diversity of families that we must conclude that there is no such thing as a family. How do you estimate, and take account of, that diversity unless it is a diversity of different examples of the same sort of thing? Consider, by way of a parallel, the entirely rhetorical question, ‘Since humanity exhibits such a diversity of individual humans, why should we speak of a single species homo sapiens?’

It might be argued, but I do not see this done even if it is sometimes suggested, that there are so many different kinds of families that the concept is stretched to a point where its boundaries are no longer clear. In this manner, it could be said, the concept somehow collapses under the weight of its multiplicity. Or, it is simply hollowed out of any content. It is a ‘zombie’ category, walking but dead and deprived of animating spirit. Yet why think this? The boundaries can remain clear between ‘family’ and other social category terms such as clan, tribe, friendship group, neighbourhood; the diversity – which is anyway surely not that extensive – can be celebrated as the richness of an ever-changing social form. Again, similarly, we might note and value the extraordinary variety of human beings without abandoning the species category.

Second, I do not see how giving up the noun in favour of the adjective (‘familial’) or verbal form (‘to do families’) helps. ‘Familial’ has to be construed as describing everything which is like a family. Yet those who commend its use are also saying that they are unable to pick out or identify what that thing which serves to identify alike instances is itself like. Or ‘familial’ is to be understood as whatever is of or shares the nature of a family. But, again, what is it that has such a nature if not something, constant and single, that merits the title of ‘family’? Similarly, the awkward verbal construction, ‘doing families,’ presumably must be taken to mean that something is done. But those who use the phrase assert that it cannot pick out or identify what is being done.

Third, the conceptual challenge should be distinguished from a moral one. ‘There is no such thing as the family’ is a very different charge from ‘there is no one thing the family should be’. It is certainly true that one response, that of conservative and traditionalist commentators, to the diversity of familial forms has been in the form of a lament for the disappearance or decline of the traditional family, the family as it should still be.¹⁴ However, it should be obvious that one can reject this kind of normative claim and refuse to share in the bemoaning of a lost ideal, whilst still insisting that there is such a thing as the family.

One celebrated way to confuse the conceptual and the moral claims is by appeal to ‘persuasive definitions.’¹⁵ These are used by those who favour a particular understanding of what something ought to be. They do so by defining that thing in the terms they favour. In saying ‘the family is to be defined as this sort of thing’, they are actually saying, ‘This is what the family should look like.’ Thus, the family is by persuasive definition what they seek to persuade others it ought to be. Note that the chapter of the Family Review cited at the outset of this chapter might appear to answer its question, ‘What defines family?’, in persuasive terms.

Or those who use persuasive definition will argue that the family as they define it is what a ‘real’ or ‘true’ family looks like. However, persuasive definitions in whatever way they are constructed or employed can be exposed as such and resisted. Thus, it is perfectly possible to refuse to accept or endorse prejudicial or, indeed, honorific representations of the family. A conceptual claim should always be carefully distinguished from a normative one. Doing so permits drawing the conclusion that there are many kinds of family without favouring or rejecting any one kind over the others.

Fourth, one might try, as some have done, to ameliorate the confusing diversity of family forms by using certain adjectival qualifications. Raymond Williams, for instance, notes that ‘nuclear’ and ‘extended’ were used to distinguish between those family forms that took in many generations and that one which was restricted to parents and their children. In ordinary English usage, we often talk of our ‘immediate’ family to make a similar point. However, the adjectival usages recommended by some sociologists such as ‘post-modern’ and ‘post-familial’ have another purpose, namely that of deconstructing or subverting the noun that follows. It is a way of saying something like ‘This is the family but not as we know it’ such that we may take it that there is indeed no longer such thing as the family. Yet, once more, such an inference is unwarranted.

The statement in quotation marks alludes to the much-used remark (actually a misquotation) attributed to Dr Spock on encountering aliens in Star Trek, ‘It’s life, Jim, but not as we know it.’¹⁶ But Spock does not deny that Jim has observed a life form; he only asserts that it is one that is unfamiliar to both of them. It is life, but one that is new and strange. Why then should we think that ‘the family’ as a concept cannot encompass even the dramatically different forms it now takes, and thus be prepared to accept that something is a family even if it is one we have not previously known?

Fifth, it is important to distinguish two questions. There is a general, conceptual, one that asks what distinguishes ‘the family’ from other social kind terms. The other is one of individuation and counting. This first question asks whether or not something falls under the concept of the family. The second asks whether or not something is a single instance of a family or in fact comprises several families. Thus, we can in some contexts ask – as an intelligible question – whether a given group of adults and children should count as one or more families.

For instance, a ‘blended’ (or ‘bonus’ or ‘step’) family is formed when adults take on a parental role for children previously raised by other parents. So, it might be difficult to decide how many families a child belongs to when their initial parents, one or both, enter into new relationships with adults who already have custodial responsibilities for other children. If Mark’s father and mother separate, the latter creating a second family with her new partner and the partner’s children, and if care for Mark is shared across his father, his mother, and partner, how many families is Mark, and indeed his mother, a member of?

That question makes good sense. However, the fact that it might appear to be a difficult question to answer does not yet give us a reason to abandon the concept of the ‘family’. Rather, it prompts us to acknowledge that the diversity of familial forms allows in some cases for individuals to belong to more than one family, as well as to see how problematic it may be to count and agree on the number of some interlinked families. Yet for all those difficulties, we can still operate with an understanding of what a family is. We know what it means to say that Mark is a member of this or that family. It is merely that individuating each instance that falls under the conceptual category is more complex than it once was.

Here is a nice comedic example from the movies. In the film Help, there is a scene in which its stars, the Beatles, are seen entering the front doors of what appear to be four adjacent relatively humble terrace houses and are commended by a neighbour for still being ‘so natural’.¹⁷ In fact, as we, the viewers, follow the Beatles inside, we are able to see that behind those separate doors is a single luxury space they all inhabit, albeit with distinguishable features and facilities peculiar to each of them. How many houses should we say there are then? Four or one? These questions can be asked, and puzzled over, without the need to stop employing the concept of a house.

Sixth, change in types and forms of family does not necessarily make a concept of family applicable at one time and inapplicable at another later time. It is wrong to claim, as one sociologist does, that, ‘There is no single concept of the family which is true for all historical periods and in all places.’¹⁸ What might be meant is that the kinds of family you would have seen several hundred years ago are not those that one sees now. But this is true of many things that change and evolve over time. These are yet further examples of things about which a Dr Spock may say that they are not ‘as we know them’.

Certainly, some things change so significantly that the manner in which they were initially understood and defined is no longer adequate. Something can change its characteristics without ceasing to be the same thing. Here is a simple example. In 2019, Jaguar, the motor manufacturer, asked Oxford University Press to change its online dictionary definition of a ‘car’. This was, ‘A road vehicle, typically with four wheels, powered by an internal combustion engine and able to carry a small number of people.’ The problem was that this excluded their electric motor–driven vehicles.¹⁹

What should be said of this example is that the original concept of a ‘car’ was poorly defined or managed in a manner that meant it was incapable of anticipating or accommodating change. We should not say that with the advent of the electric vehicle, something other than a car had been created, nor that there are different concepts of ‘car’ at different times. The essential idea of a self-powered, moving people carrier has been unchanged. There have always been cars from the first invention of the automobile, but their diversity is now such that we need a broader, more inclusive, concept. So it is, with changes in what remains recognisable as ‘a family’.

3.3 The Family of Family Law

The foregoing only shows that there can be a single concept of the family and that the diversity of whatever falls under the concept does not of itself invalidate the continued usage of such a concept. It does not answer the question of how that concept is to be defined. Since the focus of this collection is ‘the family in EU Law’ we should address the question of what it is that the law regards as a family. This is important because the status of any family member is a source of obligations, rights, benefits, and exemptions. Thus, for instance, those who are parents have enforceable duties of care for their dependent children; children are legally protected against abuse and harm; families are the recipients of state benefits; family members are exempt from certain requirements (such as that of testifying in a criminal trial against another member); the inheritance of property takes account of familial relations; and so on. In EU law, the dependant members of a migrant worker’s family have rights of entry into that state where the worker is employed.²⁰

Herring has suggested that there are five possible ways for the law to understand and define a family: an ordinary, common-sense usage; an idealised definition; a functional definition; a formalistic definition whereby the family is identified as that which has certain properties; and a ‘self-definition’ approach whereby you are a family if you think you are.²¹

The problem with the first is that an appeal to ordinary language cannot solve familiar problems of how to understand what the law requires. Or it simply reduces any disagreements or conflicts concerning such requirements to disputes about what words, ordinarily and customarily, mean. An oft-used example is that of what ‘vehicle’ means as for instance in the case of Garner v Burr.²² H. L. A. Hart used the hypothetical example, subsequently much quoted and used, of a legal rule that forbids you taking a vehicle into the public park. ‘Plainly,’ he said, ‘this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes?’²³

In response to these rhetorical questions, judges and legal commentators may move from an appeal to the indeterminacies of ordinary usage of words to an attempt to clarify what the purpose or original intention of any statute or law was: what were the vehicles that the park rule makers intended to forbid entry to? We might thus insist that we need to know what the purpose of any instance of family law is if we are to clarify what exactly is the family that is its subject. In this manner, any appeal to ordinary language uses of family must ultimately be couched in terms other than that simply of what words mean and, for instance, consider what lawmakers intend a law of ‘the family’ to do. Words alone will not deliver what is needed.

The problem with the second, idealised, definition of ‘family’ is that it conflates a conceptual question of what a family is with an ethical question of what a family ought to be. As I argued earlier, the conceptual and normative issues at stake in discussions of the family need to be carefully separated and separately addressed. Above all, it is a mistake – made by those who use persuasive definitions – to answer the conceptual question in disguised normative terms, such that the family is what the definer thinks it should be.

The problem with the final definition, one of self-definition, is that it is simply unacceptably permissive and overinclusive. It allows anyone to define the family in any terms that suit them. Moreover, it will generate irresolvable problems of conflicting self-definition, whereby different individuals may disagree as to whether they are or are not members of one and the same family.

My own preference is for a minimal functional definition whereby a family is ‘a multigenerational group, normally stably co-habiting, whose adults take primary custodial responsibility for any dependent children’.²⁴ I will not defend this definition here. However, I think it has the benefits of tolerating the diversity of familial forms noted, is morally neutral, and permits an independent evaluation of both what makes the family as such a valuable social institution and what makes some kinds of family better than others. It allows that evaluation to be made in terms of which familial forms better discharge the essential custodial role of rearing children. The definition thus honours the distinction between normative and conceptual matters, but permits an answer, without presuming what that is, to the question of what is good about the family and what counts as a good family.

3.4 From Family to Intimacy

What is interesting about using a formal definition of the family is that it may reinforce what we could call the demoting of the concept of ‘the family’. By ‘demoting’, I mean ceasing to regard the family as of special social worth. The use of the formal definition does this by raising the question of whether or not what families have in common makes them uniquely valuable. To explain, if we fail to find a single unifying concept of the family in terms of its institutional structure (such as a particular set of relationships between its members), we might attend to those features of it that are appealing and attractive. Along these lines, we find the idea that families display certain qualities such as those of affectionate companionship, intimacy, and sharing. Remember that the Review into Family Life, cited at the outset, precisely defined the family in terms of an important emotional connection, shared experience, unconditional support, and enduring positive relationships between the members of families.

Yet such qualities can be found in other areas of the personal life of individuals. In this vein, Carol Smart’s Personal Life argues that the family has no particular importance or centrality in a ‘personal life’ that encompasses ‘all sorts of families, all sorts of relationships and intimacies, diverse sexualities, friendships and acquaintanceships’.²⁵

What – it will be said – is valuable about the family are those properties exhibited by certain kinds of personal relationship. But these are not exclusively possessed by the family. What follows for family law is critical: the special privileges of legal recognition and protection afforded to ‘the family’ in virtue of those valued qualities, it will be argued, should be extended to these other non-familial relationships. We should thus move from the ‘family’ to ‘familiarity’²⁶ and recognise at law ‘households’ ‘not defined by either sexual partners or familial relationships, but rather by a shared emotional economy’.²⁷

To summarise: the answer to the question of what makes the family special and merits its particular legal status is, roughly but nevertheless very startlingly simply, ‘nothing’. First, there is no such thing as ‘the family’ (only ‘familial’ practices and ‘doing families’). Moreover, second, what makes the ‘familial’ valuable does not make the family special. For what is true of the ‘familial’ is true also of the ‘familiar’, namely the intimacy and affectionate companionship of non-familial relationships such as friendship. The law should acknowledge this.

3.5 The Goods of Family

Thus far, I have tried to answer the first claim, namely that there is no such thing as ‘the family’. I want now to attend to the second argument, namely that what makes the ‘familial’ valuable extends beyond the family to other personal relationships, and thus the law should give a special status to more than the family. I noted earlier the oddity of denying both that there is such a thing as the family and that it is special. But it is open to someone to accept even reluctantly that there is something meriting the title of ‘the family’ but refuse to accord it any special status.

Here is a schematic formulation of this second argument which I will express using the language of ‘goods’. By goods I follow standard usage in Anglo-American political philosophy, and John Rawls in particular, by seeing them as those things that it is rational for individuals to want and to seek.²⁸ The argument to which I wish to respond then runs as follows: something (the family) is commended for legal recognition because it promotes certain goods. However, these goods are also promoted by other relationships. Thus, the law should recognise those relationships to the same extent that it already does the family.

To clarify further, it helps, if and when we talk about goods, to distinguish private, exclusive, goods and non-exclusive public goods. In simpler terms, the goods of relationships can be either private, that is enjoyed only by those in the relationship, or public in that everyone can enjoy them. They can of course be both; the fact that relationships have private goods does not exclude them from also having public goods. Take, for example, friendship: the intimacy, mutual support, and affection that characterises a friendship is valuable only to those who are the friends in question. However, if friendships can also underpin social solidarity, promote public health, assist compliance with the law, and support the economy, then friendship realises public goods enjoyed by all in society.²⁹

Having clarified what is to be understood by goods, we can respond to the second argument (that non-familial relationships deserve the same special legal status as familial inasmuch as the former promotes goods to the same degree as the latter) by showing either that the private goods promoted by different relationships differ in their quality and value; or by showing that the family promotes particular public goods besides those private goods that might be of equivalent value with non-familial relationships.

Hence, in what follows I want, first, to concentrate on private goods and consider two ways in which one might argue that the private goods of family membership are different from those of other relationships such that the family is ‘special’ in the right way. I will then be able to show how the public goods of the family – if not the private goods alone – suffice to establish its special nature.

The first account of the putatively special nature of the private goods of the family is taken from Brighouse’s and Swift’s influential book on the family and justice, Family Values. They think that there is a particular, distinctive, and non-substitutable interest that adults have in acting as a parent, forming a relationship with a dependent child, and promoting that child’s interests. This is a view they develop in offering a reason why a liberal egalitarian can reasonably think that the existence of families need not promote injustice. Its particular relevance in the present context is that, for them, the good of being a parent is both a private one and one that is not realised by other relationships such as friendship. I am thus not concerned with whether Swift and Brighouse do show that the existence of families can be congruent with justice, but rather with making use of their key idea that the family serves interests of a particular and, indeed, unique kind.

Swift and Brighouse argue that ‘intimate relationships with others are essential for [people’s] lives to have meaning’. Further, the intimate relationship of a parent with his/her child is ‘sui generis’, ‘unique’, and productive of ‘a distinctive contribution to [a parent’s] well-being’. ‘Other intimate relationships have their own value, but they are not substitutes for a parenting relationship with a child.’³⁰

This is a powerful and important claim but it does not show that the family is special in the way that is needed to accord the family its privileged legal status. Why? It is conceded by Brighouse and Swift that the private goods of parenthood are not goods for all adults:

So the claim that the relevant relationship goods make a powerful contribution to the flourishing of the [individual] does not imply that those goods are good for everybody … [T]here may be people who do not need to be parents; those who … could indeed flourish fully without [parenting], and those whose lives would actually be diminished by their being parents.³¹

This is an important concession. And there are two elements to the concession. The first is that something’s being of unique, non-substitutable, value to some does not mean that it is of such value to all persons: the goods of parenthood are not goods ‘for everybody’. The second element of the concession is that those who do not value the goods in question need not thereby suffer a shortfall of private goods: some individuals will ‘flourish fully’ without those goods of parenthood.

Taken together, the concession undercuts the claim that only the family can supply those valuable private goods that would justify according to it a status denied to other relationships. That would be the case if someone could not enjoy those goods that are necessary for a ‘fully flourishing’ life outside the family. Yet, some individuals do not derive value from the family and nevertheless live lives that are no less good in sum. For instance, some individuals will enjoy the same level of well-being as those who have families through securing the private goods of non-familial intimate relationships.

It may be true, as Brighouse and Swift aver, that other intimate relationships have their own value, but one that is no substitute for that of parenting. But something can be just as valuable as another thing without it having the same kind of value. For instance, there might be no substitute for the taste of truffles, but someone who dislikes that taste need not lack what is needed to have a complete gustatory meal experience; other, albeit different, tastes may suffice for a meal that is as satisfying to the diner as the one with truffles. A taste can be unique and non-substitutable without being one that is special in the sense of necessary for any fully satisfactory meal.

The sense in which Brighouse and Swift define the private good of parenthood does not suffice to show that the family should receive special legal protection. If other intimate relationships have equal, albeit not the same kind of, value as parenting, then the law should grant those relationships the same status as parenthood. That leaves unaccounted for the putatively public good of parenthood to which I will return.

The second account of why the family realises importantly different private goods than those of other relationships is noted by some sociologists who have been critical of the move to demote the family as a social institution. What such a demotion or ‘circumvention’ of the concept of family risks losing, they argue, is the powerful sense of belonging to a familial ‘we’ that individuals have and which they value highly. This feeling of who we are extends both into the past and into the future: ‘a sense of responsibility, reverence and respect for ancestors that has both sociopolitical and spiritual components; and a sense of generational continuity that passes knowledge about previous generations down to future generations’.³²

The British Broadcasting Corporation’s (BBC) very popular series, Who Do You Think You Are? comprises episodes in which a well-known individual explores their ancestry. The results can be surprising and on occasion shocking. However, the programme’s pleasure for the viewer lies in the reactions of the celebrities at the disclosures of a past they may not have previously known about but which on being found out matters greatly to them. That is the case even when a discovered ancestor is long dead. The programme is described by the broadcaster as follows: ‘Lost connections and unfamiliar histories are revealed as celebrities trace their family trees. Discover stories of courage, joy, sacrifice and resilience – everyone has a tale to tell.’³³ That everyone does have a tale to tell is what makes the family of special value to its members.

Note, too, that this sense of temporal or historical continuity can be felt and valued by everyone inasmuch as we are all the children of parents, and all of us have ancestors even if some of us do not become parents. Moreover, those who do not themselves have children can still view the young within their extended family – our nephews and nieces, for instance – as giving them a sense of a ‘future generation’ that is special to them.

It is hard to see how this valued sense of ‘having a tale to tell’ about one’s place in an ongoing history can be realised by non-familial relationships. Friendship, for example, does not, as the family does, extend back over time and forward across generations. Moreover, the value of what one could call a narrative identity would seem to be one that is both universal (we all value having such an identity) and unique in the sense of not having any equivalent outside the family. Here then is a way in which the private good of the family is both non-substitutable and, very plausibly, of greater value than any good of non-familial intimacy.

3.6 The Public Good of Family

Moreover, this sense of continuous attachment to a past and a future can also be represented as a public good, in that such feelings of connection to the family can extend to our sense of belonging to the society in which our families flourish. Indeed, this was the claim of Edmund Burke who famously argued, ‘To be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love to our country, and to mankind.’³⁴ The family is just such a ‘little platoon’ by connection to which our affection to others is broadened to encompass our co-citizens and humanity as a whole.

Brighouse’s and Swift’s accounts may not suffice to show that the family serves private goods that other relationships cannot match. But they also see the family as having a public good. This is because it serves the interests of children as well as parents. Indeed, they believe that children should be raised by adults because that relationship of parenthood which is of value to the latter also serves the well-being of the former. They think that parenthood ought to promote the interests of children. Parents owe a fiduciary duty of care to dependent children and their rights are, in consequence, appropriately constrained.³⁵

This suggests the most important way in which the challenge to the special status of the family can be met. This is especially so if the idea of the family as a ‘little platoon’ remains unpersuasive. We can grant that both friendships and intimate personal relationships do promote significant private and public goods. Nevertheless, we can and should insist that the family does something else, namely rear children. This is precisely what a functional definition of the family draws attention to. The family is essentially that social institution within which children are brought up. It is such an institution even if it also can and does provide affectionate companionship to its members.³⁶ In short, the family may not be able to compete with non-familial institutions if the standard of comparison is the quality of intimacy enjoyed but it will outrank those other relationships if what matters is the functional role the family uniquely fulfils.

It is worth adding that, although not an essential functional role, the family can and does often provide support and care across generations but in a reverse direction to that of rearing children. This is the case when the elderly parents are looked after by their adult children.

That primary functional role is important inasmuch as it ensures the graduation to adulthood of children and their eventual occupancy of those social roles – as citizen, worker, parent, and others – that ensures the stable reproduction of any society over time. Of course, in discharging that role the family is not beyond criticism. Indeed, it is subject to a range of familiar criticisms from psychoanalytic, Marxist, feminist, and countercultural commentators. It is probably best not to answer these criticisms by insisting that the family is a flawless social institution, every instance of which is ideal. Rather, we should attempt what I have described elsewhere as a ‘Churchillian defence’ of the family.³⁷ Winston Churchill famously said of democracy that ‘it is the worst form of government, except for all the others’.³⁸ In similar fashion, we can say of the family that it is the worst institution in which to bring up children, apart from every other alternative. We can also allow that different familial forms serve the function of rearing children in better or worse ways.

Thus, the family provides a range of both private and public goods, and the former for both parents and children. Children benefit from being brought up in families, parents benefit from discharging their custodial duty of care, and society benefits from the inter-generational stability provided by inducting the next generation into their adult social roles. All of these goods are promoted by the family in ways and to an extent that is not true of non-familial intimate relationships. This, then, is the basic argument for the claim that the family deserves a legal status that is not merited by those other relationships.

However, one last point is in order. It is arguable – indeed it is highly plausible to think – that when the family displays those qualities that characterise the best of non-familial relationships, it is better at rearing children. These qualities are most obviously the strong bonds of affectionate companionship and reciprocal commitment. As we have seen, Brighouse and Swift think parents must fulfil the fiduciary duty of care for their children. That ensures that the children’s well-being is at least good enough. But we can reasonably add that the well-being of children is advanced more if those adults who have custodial care of them are bound by a high degree of mutual commitment. This is persuasively argued by Anca Gheaus.³⁹

If this claim is true, we have a reason not just to protect the family as a social institution but to promote those familial forms that can display these valued qualities. Arguing for this claim displays the merits of using a functional definition of the family and of clearly separating conceptual and normative issues. For we can agree that the concept of the family does capture a distinctive kind of social institution without at the same time begging normative questions of which are better or worse instances of the institution. Nevertheless, if the family is defined as an institution whose adult members have primary custodial care for the children, we can at least understand how we might go about evaluating two issues: first, whether the family does a better job of rearing children than other social institutions; and, second, which forms or kinds of family do a better job of rearing children than other forms.

3.7 Conclusion

To conclude: the concept of ‘the family’ as functionally defined has survived momentous changes in society and endures across the multifarious forms it can take. The concept of ‘the family’ is not made redundant by these changes and is not a historical relic left behind by progress. It survives and indeed flourishes in its diversity. The family does have a unique and special value in the number and quality of goods it serves. The law – at both national and transnational levels – rightly protects that value and may seek to make of families the best that they can be in serving these goods and in discharging its indispensable functional role of rearing children.

At the outset I noted that EU law acknowledges that the family is a special social unit but has a problem with agreeing what shall count as a family and who are its members. It does so whilst worrying that the privileging of some familial forms might be counted as discriminatory. For instance, when defining who family members are for the purpose of extending the scope of the right to free movement to ‘family members’, who should count as a ‘partner’ – only a married spouse or could, and should, it also include a same-sex but unmarried partner?⁴⁰

One way to resolve these problems would be by harmonising or indeed by unifying EU family law across all Member States. This has been extensively discussed but the prospects for such an institutional unification of substantive family law seem some way distant.⁴¹ In the discussions, there is often emphasis on the fact that the family law of any Member State is indissolubly linked to a particular national culture (its ‘sentiments and traditions’) or to a stage of social development (assessed by reference to what is seen as a generally progressive arc of change). Whatever the explanation of the pessimistic assessment of the likelihood of its occurrence, any uniformity of family law across the EU would require the imposition on Member States from the ‘top down’. This would be viewed as politically unacceptable and probably unworkable. Indeed, one reviewer of the prospects for harmonisation of family law notes that, in Europe, it could only mean political integration, and that, in consequence, ‘Uniform family laws will signal the demise of the nation state, if not the end of politics.’⁴²

Nevertheless, it must be stressed that there is no inconsistency in a presumption underlying EU family law that the family does exist and does have value, whatever the various forms it assumes in different national jurisdictions. To repeat the essential claim of this chapter: the changes in the forms taken by the family should not and need not be taken as showing that there is no usable single concept of the family nor that it does not merit special legal protection.

4 Who Counts as a Family Member? On the Importance of ‘Doing Family’ in EU Law

Ségolène Barbou des Places

4.1 Introduction

‘One of the first mental frameworks which informs the intelligibility of all life’,¹ the family seems to be one of those common concepts that are immediately understandable. Ordinary definitions of the family refer to a group of persons united by the ties of marriage, blood, or adoption, forming a single household. These persons are assumed to interact with each other in their respective positions, usually those of spouses, parents, children, or siblings.²

Reading sociology and history, however, teaches us that the definition of the family is not as clear as it first seems. The notion of family has changed over time and its definition is the subject of intense controversy. For decades, the image of the family was based on marriage and implied a heterosexual relationship.³ However, the narrowness of this definition, mainly based on patriarchal principles involving a male breadwinner and female homemaker,⁴ has been increasingly criticised. Progressively the definition of family members has evolved, and in national, international, and European Union (EU) law, we find more encompassing conceptions of the family. However, the controversy is not over, namely because ‘rainbow’ and other atypical forms of family are far from being on an equal footing with the traditional nuclear family.⁵

The purpose of this chapter is not to take a position in this debate, important as it is. Rather, its goal is to address another issue, based on the observation that the definition of ‘family’ is both uncertain and unstable in EU law. In certain parts of EU law, the family circle is limited to the nuclear family, or a slightly enlarged version of the family, while in other cases the family encompasses a broader group of persons. ‘Family’ is also defined on the basis of multiple and varying criteria. Comparing EU legal norms on free movement law, migration law, and private international law, one can only agree with Advocate General Mengozzi that the family is ‘not a uniform category’ in EU law.⁶ Admittedly the same applies to national law, as the scope of the family varies according to the objective pursued by the legislator: to organise parental authority, to identify the legal heirs of a deceased person, to determine who are the creditors or debtors of child support, and so on. However, it is neither satisfactory nor convincing to assume that the definition of the family is purely functional in EU law.

It is not satisfactory because a totally fragmented regime does not sit well with the requirements of legal certainty which must guide the drafting and interpretation of EU law. Indeed, depending on whether or not someone is considered a ‘family member’, they may or may not have access to rights granted by EU law and be protected against breaches of other rights.⁷ The fact that the holders of rights and obligations are designated without any apparent logic or coherence, sometimes even within the same policy area, can be considered problematic. Most importantly, the conclusion that the EU’s definition of the family is purely functional is unconvincing because it tends to assume that EU law fulfils only a very limited role in family matters, restricted by national traditions and cultures. Of course, there are reasons to believe that the EU’s influence on national models of family life is restricted. In the absence of a sufficiently homogeneous social base, the EU would lack a basis for expressing a shared European conception of the family. In addition, the EU does not ‘constitute’ families:⁸ it only recognises the variety of affiliation, and of conjugality that we find in the Member States’ legislation,⁹ hence building upon the families constructed at national level.¹⁰ However, this reading is contradicted by the different works that, despite reaching opposite conclusions, all agree that EU law influences family patterns in Europe. Whether they argue that EU law ‘undermines the family as a legal institution’,¹¹ that the EU creates ‘forms of family life’,¹² or that the contribution of the Court of Justice of the EU (CJEU) to the protection of rainbow families is too weak,¹³ EU law scholars are increasingly united around the idea that the EU’s influence on national models of the family is real.¹⁴

This chapter takes this idea as a starting point. It aims to show that, under the heterogeneous approach to the family, there is a rationale underpinning the EU’s – apparently – variable and unstable approach to the family. It seeks to describe how the notion of ‘family member’ contained in EU legal provisions reflects the EU’s perception¹⁵ of what European society is (and what it should be). The notion of ‘doing family’, borrowed from sociology, will help to account for the reasoning of the EU legislator and judge. In EU law, there is no unitary definition of what it is to be a family member, but EU legal norms often tell us what it means to act like a family member. Some people, who cannot claim to have conjugal or parental bonds with rights’ holders, are nevertheless referred to as ‘family members’ on the sole ground that they are behaving like family members. In characterising such people as family members, the EU values the family functions they are performing: protecting, caring, educating, and supporting the social integration of their family. However, this chapter will show that ‘doing family’ is a social fact, an objective social reality: it does not equate to ‘feeling like’ a member of the family. While the EU does not ignore feelings and the willingness to form a family, it relegates them to second place. This preference for a definition of family that is based on the social functions performed rather than on any self-definition is a political and ethical choice. The Union does not so much value the feeling of belonging to the family as the role that the constitution and preservation of family life plays in the service of European construction.

This chapter is divided into six sections. Sections 4.2 and 4.3 substantiate the idea that family is a variable geometry figure in EU law. Section 4.2 describes the variable scope of the family circle in EU legal instruments, and Section 4.3 shows that ‘family’ is a missing category of EU law. Thereafter, the chapter seeks to identify the rationale underpinning the delineation of the family members by EU legal norms. Section 4.4 presents the notion of ‘doing family’, borrowed from the work of David H. J. Morgan,¹⁶ who focused on family practices. It shows the value of this notion for understanding the rationale of the EU approach. Section 4.5 invites nuance in the use of the notion of ‘doing family’ to describe EU law. The EU values the fact of ‘doing family’ but, in contrast with Morgan’s work, there is no room for the self-definition of family members. Forming a family supposes that its members perform social functions, like providing care or contributing to the social integration of its members. The rationale for this limitative definition of the family is explained in Section 4.6: family is a form of social membership that enables people to be part of a broader community: the European society. EU law models the definition of EU families on the EU project to construct a cohesive society. Section 4.7 concludes that despite the fragmentation of sources and the modulation of family circles, EU law projects a certain representation of the family. Even when unnamed, ‘European families’ exist.

4.2 The Variable Scope of the Family Circle

To illustrate the impossibility of accurately describing the ‘European family’, Strumia resorts to the notion of the ‘variable geometry family’. The EU institutions rely ‘on a flexible, pragmatic idea of family that leaves potential room to several models of cohabitation and reciprocal responsibility, and to a variety of underlying bonds, from the biological, to the legal, to the factual and affective’.¹⁷ Apart from the members of the nuclear family – the spouses and children – who are systematically included in the group of ‘family members’, the precise boundary of the family circle is unstable and difficult to assess in EU law.

Several factors generate this instability. Time is the primary factor of variation. Since the 1950s, the definition of the family circle has evolved, espousing some of the social and legal changes in the Member States. This is visible in free movement law. Regulation 1612/68¹⁸ on workers’ mobility restrictively defined the family as being composed of the sole ‘spouse‘, children, and the dependent relatives in the ascending line of the worker and his¹⁹ ‘spouse’. Three decades later, the 2004/38 Directive²⁰ included in the family circle the ‘partner’ with whom the Union citizen (a man or a woman) has contracted a registered partnership. Following the same logic, siblings and relatives who were not mentioned in the 1990 Dublin Convention²¹ have been counted as members of the (extended) family by ‘Dublin III’ Regulation 604/2013.²² The proposal for an Asylum and Migration Management Regulation confirms that the EU institutions are willing to retain this broad definition of the family circle.²³

However, change over the course of time is not the only source of complexity. Even when adopting a static rather than a dynamic reading of the norms dealing with family life, it is hard to form a clear picture of the family. The fragmentation of legal sources is a second factor preventing the emergence of a uniform category of family in EU law. The perimeter of the family varies significantly from one text to another, even within one and the same policy field. A typical example is that of unmarried partners. Directive 2013/33 on the reception of applicants for international protection²⁴ is inclusive: its Article 2(c) designates as a family member ‘the spouse of the applicant or his or her unmarried partner in a stable relationship’. Accordingly, Article 2(g) of the Dublin Regulation mentions the unmarried partners engaged in a durable relationship. Yet other texts, like the Family Reunification Directive²⁵ and the EU Citizens’ Directive, are far less inclusive. They rely on a distinction between two groups of people, one named ‘family members’ which corresponds to the (slightly extended) traditional nuclear family, and the other one composed of people having other types of family ties. Unmarried partners fall into this second group.²⁶ The same logic applies for siblings and relatives. In most EU legal instruments, they are not included in the family circle. Article 6 of the Dublin III Regulation is an exception: it refers to a heterogeneous group composed of ‘family members, siblings or relatives’ of the unaccompanied minors. ‘Relatives’ are defined by Article 2(h) as ‘the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State’.

These lists of family members may appear to have been composed at random and without any logic because the links between family members are very diverse. Parental and conjugal ties are predominant, but often EU law also recognises as family members people who interact from other circles and relationships. A recent example is that of the Council Implementing Decision 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine.²⁷ In addition to the spouse, the unmarried partner in a stable relationship, and minor unmarried children, Article 2 of the Decision designates as persons who shall be considered to be part of a family ‘other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx of displaced persons, and who were wholly or mainly dependent on the sponsor’. The ‘other close relatives’ is a vague category that serves to include, within the scope of the family, persons not having any predetermined legal family links but who depend on the sponsor. It will be remembered (from the previous paragraph) that the same category is mentioned in the Dublin Regulation but there ‘relatives’ refers to a different category of people: ‘the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State’ (Article 2(h)).

These examples, which attest to the categorical diversity of family in EU law, point to a third factor of variation in the definition of the family: the objective of the law. The family circle is defined according to the purpose of the EU norm under consideration. When the legislator’s objective is to confer a legal status and to grant rights to individuals, the family circle tends to be narrowly defined. This is particularly apparent in the norms that distinguish between two categories of family members, who are accorded distinctive rights and treatment. Following its Article 3(1), the EU Citizen’s Directive, which confers several important rights, ‘shall apply’ to the ‘family’ which is composed (under Article 2) of the spouse and registered partner, children, and ascendants in direct line. In contrast, under Article 3(2), the host Member States are only required to ‘facilitate’ entry and residence for the ‘other family members’ who are the persons not falling under the definition of Article 2 who are dependants or members of the household of the Union citizen. Accordingly, and despite the fact that he/she is not even named a ‘family member’, the ‘partner with whom the Union citizen has a durable relationship, duly attested’ is mentioned in Article 3(2)(b) as a person who ‘may enjoy’ facilitated access to entry and residence. The legislator has opted for the same approach to family in concentric circles in the Family Reunification Directive. It distinguishes between a ‘first family circle’ including the sponsor’s spouse and the minor children of the sponsor and spouse, composed of persons who have a right of entry and residence in the host State; and a ‘second family circle’ comprising first-degree dependent relatives in the direct ascending line of the sponsor or spouse, and adult unmarried children of the sponsor or spouse, composed of persons whose entry and residence is dependent on the host State being willing to welcome them.

These examples also show that the delineation of the family varies depending on the degree of harmonisation the legislator seeks to achieve. When adopting the EU Citizen’s Directive, the legislator clearly sought to limit the Member States’ discretion; hence the compilation of a rather precise and closed list of family members. In contrast, in the field of social security, preference was for a margin of appreciation left to national authorities. Logically, Article 1 of Regulation 883/2004²⁸ defines the ‘member of the family’ as ‘(i) any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided …’.

It is clear from these examples that the definition of family – and the protection of family life – is often instrumental to achieving other objectives. This is not a novelty. Caracciolo di Torella and Masselot have argued that ‘the regulation of the family has not been an end per se, but has been subsidiary to the successful completion of the “main building”, namely the European Community (EC) common market. As a result, both soft law and binding measures were a bundle of ad hoc measures which did not support a coherent approach within this area.’²⁹ Given the multiple objectives pursued by the EU institutions in the different areas of EU law, the prospect of a clear and a priori definition of the family common to the different branches of EU law appears somewhat illusory.

4.3 The Family: A Missing Category of EU Law?

It is not unreasonable to affirm that ‘family’ is an elusive category of EU law. Terminology confirms this idea. In the different secondary law instruments that organise family life, in particular in social law, free movement law, or private international law, the entity ‘family’ is rarely mentioned as such. The preferred terms of the norms are ‘family links’, ‘family relations’, or ‘family members’, leading some scholars to consider that European law is constructed on the basis of, and for, individuals alone.³⁰ Some go as far as concluding that the ‘European family’ does not exist, at least in its traditional sense of a social institution.³¹

This description fits well with the analysis of free movement law, a domain in which the logic is ‘of dissuasion or deterrence’.³² Free movement law, Advocate General Bobek argues, is built on the premise that the Union citizen will be discouraged from moving, ‘as those personally close to him will be barred from joining him’.³³ Given that social perceptions are changing and that there is an increasing range of forms of cohabitation, the definition of the persons who are ‘close’ to the Union citizen is not – and cannot be – defined a priori. Sometimes, the deterrence effect is even stronger with regard to a partner under Article 3(2) of Directive 2004/38 than it is with regard to some family members listed in Article 2. This is why Advocate General Bobek adds: ‘I am simply suggesting that with regard to who is effectively “close” to a person, formal box-based generalisations are hardly appropriate.’³⁴

It may be the same reluctance vis-à-vis ‘formal box-based generalisations’ that guided the legislator when adopting Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.³⁵ The text does not specify who are the persons holding parental responsibility and having the rights of access to the child defined in Article 2(10). Whether certain persons, such as grandparents, can be considered family members and have rights of access to their grandchild is not explained. This lack of clarity results from the negotiations of the time.³⁶ The legislator, pondering who may exercise parental responsibility, considered several options: limiting the persons concerned to one of the parents of the child or, conversely, imposing no limitations on specific persons whatsoever. Ultimately, the legislator opted not to provide for a limitation of the range of persons who may exercise parental responsibility. For Advocate General Szpunar, we can even infer from the legislator’s silence that its goal was to extend the scope of Regulation 1347/2000.³⁷ The legislator contemplated all decisions concerning parental responsibility and rights of access ‘irrespective of the nature of the persons who may exercise those rights’³⁸ and without excluding grandparents. There is no predetermination of what family could mean because flexibility was the preferred option. The legislator thus achieved the paradoxical outcome that, in a text governing parental responsibility, there is no trace of a definition, or even a conception, of the family.

The semantics employed by the different texts of EU law bring to light the conceptual confusion surrounding the notion of family. Different terms (‘family members’, ‘other family members’, ‘relatives’, ‘other relatives’, ‘siblings’, ‘siblings and parents’, ‘parents’) coexist to describe the persons having ties with the EU citizens or sponsors or person to be taken care of, often in an inconsistent manner. True, the rationale is to modulate the rights granted to the different categories of persons. But this mode of presentation and naming creates a conceptual ambiguity: Is it coherent to talk about a ‘family’ when some people are not even titled ‘family members’³⁹ and others, named ‘other family members’, remain outside the scope of the provision that defines ‘the family’?

Practical problems also arise from the inconsistent reference to the notion of ‘family members’. The Banger case⁴⁰ illustrates the difficulties arising from the inconsistency in Directive 2004/38. Article 3(2) of the Directive grants a facilitation regime of mobility for the unmarried partner with whom the EU citizen has a durable and duly attested relationship but does not set out the specific procedural guarantees that shall accompany its implementation. Therefore, the judicial guarantees to be applied to unmarried partners, who are not on the list of ‘family members’ in Article 2, remain unclear. A difficulty emerged because Article 15 of the Directive on procedural guarantees refers to Union citizens and their ‘family members’ with no other indication. Both the Commission and the UK government argued that the notion of Union citizens and their ‘family members’, which is legally defined in Article 2(2) of the Directive, does not include extended family members. Advocate General Bobek and the Court took another position. The Advocate General noted that the notion of ‘family members’ does not appear to be used consistently in the provisions of Directive 2004/38.⁴¹ Since under Article 15 procedural safeguards shall apply ‘to all decisions restricting free movement of Union citizens and their family members’ without referring to Article 2, it is not unreasonable to consider that the procedural guarantees to apply to family mobility should not vary according to the type of conjugal bond. Following the same logic, the Court held that the procedural safeguards provided in Article 31(1) of Directive 2004/38 are applicable to the persons envisaged in Article 3(2)(1) of the directive. This approach must be welcomed insofar as procedural guarantees are accorded to members of the extended family. Yet it is not unreasonable to question the Court’s logic, which assumes that a unitary category of family exists, despite the distinction that Directive 2004/38 makes among family members. At this stage, the legitimate question to be asked is whether the Court and the other EU institutions have a vision of the ‘EU family’ in mind. Is there a rationale underpinning their approach? These questions can be answered in the affirmative, provided that due consideration is given to the notion of ‘doing family’.

4.4 Defining Family Members as Those Who ‘Do Family’

Until now, the family has been described in this chapter as a category without substance. It is now time to take a new lens: instead of who is in the family or what is a family, we might instead ask what makes a family.⁴² For Morgan,⁴³ family is a facet of social life: it represents a quality rather than a thing. Morgan’s work is useful for our analysis because he has shifted sociological analyses from family as a structure to which individuals belong, toward understanding families as sets of activities, which take on a particular meaning, associated with family. This line of reasoning is insightful because it has proven to be quite impossible to find a unitary family structure in EU law. In EU legal norms, in contrast, one can identify different traces of ‘family activities’ and ‘family practices’. It appears from various legal provisions that the EU recognises situations in which individuals ‘behave’ and ‘act as family’ members. Often the individuals are granted rights when, or because, they perform one of the main social functions which are generally assigned to the family: to provide care, protection, and education, and to contribute to the social integration of its members.

True, the social functions generally assigned to the family are not valued equally. ‘Doing family’, in EU law, relates primarily to performing a caring function. The Court formulated this idea implicitly in the Valcheva case. Having noted that the legislator had left it undecided who could be a ‘holder of parental responsibility’, the Court then provided a defining criterion of ‘parents’: they are the persons ‘with whom it is important for the child to maintain a personal relationship’.⁴⁴ In so judging, the Court has not emphasised a specific type of bond which would define a parent; a case-by-case analysis will be required to identify who the ‘parents’ are. Nevertheless, the Court has chosen to emphasise the importance of bonds in the interest of the minor.

In most free movement and migration norms, the caring function plays a more explicit role. Article 3(2) of the EU Citizen’s Directive defines as ‘other family members’ the persons who ‘are dependent or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen’. The same logic guides the Dublin III Regulation, the Asylum Directives,⁴⁵ and the 2015 Relocation Decision:⁴⁶ people with no biological bonds and who are not de jure family members are nevertheless referred to as family members when they provide, or need, care. The most explicit provision is Article 4(2) of the Family Reunification Directive, which allows the Member States to authorise the entry and residence of: the first-degree relatives in the ascending line of the sponsor or his/her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin; the adult unmarried children of the sponsor or spouse, where they are objectively unable to provide for their own needs on account of their state of health; the unmarried minor children as well as the adult unmarried children of the partner, when these children are objectively unable to provide for their own needs on account of their state of health. The same logic guided the Council when adopting Implementing Decision 2022/382 which triggers the application of the Temporary Protection Directive for people from Ukraine.⁴⁷ In this text, the family includes the ‘other close relatives’ who lived together as part of the family unit ‘and who were wholly or mainly dependent on the sponsor’.

The notions of ‘need’ and ‘care’ take on such importance in EU law that they have even led the Court, in the Depesme and Kerrou case,⁴⁸ to redefine the notion of ‘children’ and ‘parent’, despite the strict meaning of the notions under Regulation 492/2011.⁴⁹ Ms Depesme, Mr Kauffmann, and Mr Lefort each lived in a reconstituted family unit – living in France and Belgium – consisting of a biological mother and a stepfather. Each of them applied for a study grant on the basis that their stepfathers had worked in Luxembourg continuously for more than five years. Yet the Luxembourgish authorities refused their applications on the grounds that they were not legally the ‘children’ of frontier workers but merely the ‘stepchildren’. The Luxembourgish government argued that the concept of ‘child’ had to be interpreted restrictively.⁵⁰ Following the AG, the Court confirmed the social value of providing maintenance and care. It held that the parent–child relationship has to be defined not in legal but in ‘economic terms’, in that the child of a step-parent with the status of migrant worker can claim a social advantage where the step-parent contributes to the child’s maintenance. The centre of gravity of the judgment is not about membership or legal linkages, it is about performing a family role, day after day. ‘Doing family’ is a notion that comes in via the court’s application to complement de jure family bonds.

On closer inspection, it appears that this conception has been at work for many years. Already in the Carpenter case, the Court had the concept of care play a decisive role.⁵¹ Accordingly, in Ibrahim and Teixeira,⁵² the Court conferred a right of residence on a mother of a child in education on the basis of her being the primary carer for the child. In Teixeira, the Court even considered that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker ends, in principle, when the child reaches the age of majority unless the child continues to need the presence and care of that parent to pursue and complete his/her education.⁵³ Later, in Alarape,⁵⁴ the Court confirmed the possibility of the primary carer remaining on national soil as long as the child needs care. In so judging, the Court went beyond the limits of EU secondary law, which did not ground a right of residence on the sole fact of being a mother.⁵⁵ ‘Acting like a parent’ is what the Court takes into consideration. It serves either to replace – as in Depesme and Kerrou – or to complement – as in Alarape – de jure family ties.

In sum, when looking at EU secondary law and at CJEU case law through the lens of ‘doing family’, a more coherent picture of the family emerges. The ‘family members’ remain identified by the conjugal or kinship bonds they share with EU citizens or migrants. The extended family members, whether named ‘other family members’, ‘other relatives’, ‘relatives’ or unnamed altogether, are mainly identified by the family functions they fulfil or benefit from actively caring and protecting, or passively needing care and protection. This approach, however, is an objective social reality and ‘doing family’ should not be confused with ‘feeling like a family’.

4.5 ‘Doing Family’ as an Objective Social Reality

When the Coman judgment⁵⁶ was handed down by the Court, very contrasting comments were made by EU legal scholars. Since the Court held that the mobility rights conferred by the EU citizenship Directive shall be granted to the same-sex spouse of an EU citizen, even without the requirement that the host Member State has established same-sex marriage, the judgment has been described as bold and progressive.⁵⁷ It was indeed legitimate to infer from the judgment that the Court was willing to interpret broadly the concept of EU citizens’ family members,⁵⁸ and that the EU was progressively accepting new forms of families. However, a far less enthusiastic reading of the case emerged from sceptical scholars who denied that the Court had transformed the definition of family members. The outcome, they argue, was ‘simply mandated by the language of the relevant legal provisions’ since their inception, given that the term ‘spouse’ was ‘purposefully gender-neutral in the Directive 2004/38’.⁵⁹ When families composed of a same-sex couple move to a Member State that does not recognise same-sex couples, they remain confronted with the possibility that the Member State will refuse to legally recognise the familial ties among the family members as these have been legally established elsewhere. The Coman ruling indeed creates an obligation to recognise such marriages but ‘for the sole purpose of granting a derived right of residence to a third-country national’.⁶⁰

This critical reading rightly underlines that even in Coman, a judgment that enshrines a more liberal view of the family, the family remains defined by stringent objective criteria. The Court in no way promotes a definition of the family that is self-defined or ‘rooted in individual biographies’.⁶¹ This contrasts with Morgan’s approach which inferred from the notion of ‘doing family’ that social actors creatively constitute their own social world and that ‘an individual’s understanding of “my family” is subject to change over time’.⁶² Morgan emphasises the fluidity, the diversity, and the multifacetedness of the family. Here lies the limit of Morgan’s theory for the analysis of EU law. In EU secondary law and in CJEU case law, ‘doing family’ and ‘feeling part of a family’ are two separate things. ‘Doing family’ remains limited to performing a set of activities or actions: it is a matter of how people behave, not how they feel, how they think of themselves as a social group, or how they love.

In CJEU case law, the motivations or the reasons for ‘doing family’ are irrelevant. This appears clearly from the Reyes case,⁶³ in which the Court decided that for a twenty-one-year-old daughter of a Union citizen to be regarded as being a ‘dependant’ of that citizen, the existence of a situation of real dependence must be established. That status can only be the result of a ‘factual situation’ characterised by the fact that material support for that family member is provided by the Union citizen who has exercised his right of free movement or by his spouse. The Court underlines that there is no need to determine ‘the reasons’ for that dependence or for the recourse to that support. The same rationale applies in Depesme and Kerrou. The national judge sought to clarify the extent to which emphasis had to be placed on the fact that the frontier worker ‘continues to provide for the student’s maintenance’ without necessarily being connected to the student through a legal child–parent relationship, where a sufficient link of communal life can be identified. The Court replied that the status of dependent member of a family is ‘the result of a factual situation, which it is for the Member State and, if appropriate, the national courts to assess’. The status of family member can be evidenced by ‘objective factors’, such as a joint household shared by that worker and the student. It is not necessary to determine the ‘reasons for the frontier worker’s contribution’ to the maintenance of the student or make a precise estimation of its amount. ‘Doing family’ is an objective fact and the willingness to act as a parent is secondary. Such willingness can be inferred from the acts of ‘parents’ but needs to be proved.

Of course, the Court is not unaware of the emotional side to family life but feelings and emotions are not sufficient to ‘constitute’ the family. This is apparent in Alarape⁶⁴ – a case in which the national judge was asking whether, for a parent to qualify as a ‘primary carer’ so as to derive a right of residence from a child under Regulation 1612/68, it is necessary for that child to be dependent on such a parent, to reside in that parent’s household, and to receive emotional support from that parent. The Court held that determining whether an adult child does or does not continue to need the presence and care of his parent supposes one should:

take into account the particular circumstances and features of the main proceedings which might indicate that the need was genuine, such as, inter alia, the age of the child, whether the child is residing in the family home or whether the child needs financial or emotional support from the parent in order to be able to continue and to complete his education.⁶⁵

Emotional ties are not ignored but they mainly serve to establish the children’s dependency and are not central to the definition of family ties.⁶⁶ In other words, it seems that recognising the importance of ‘doing family’ does not equate to giving individuals the choice to decide for themselves who counts as family members. Rather, because the family is the ‘basic cell’ of European society, its definition is modelled after the EU’s goal to create a cohesive society.

4.6 The Role of ‘Doing Family’ in the Design of European Society

Among EU law scholars, the story increasingly told is one of the EU making space for greater individual emancipation and self-determination but leading to a society in which the sense of community and membership is frustrated.⁶⁷ This reading is well established among those who believe in the negative influences of the EU on family law. The EU supposedly destabilises the family order, accentuating the tendency towards individualism and the break-up of the family institution. The Coman judgment, and the recent Pancharevo ruling,⁶⁸ may have increased the impression that in promoting subjective rights and overvaluing the interest of the individual at the expense of the socially dominant conception of the family, the Court contributes to the overall phenomenon of relegation of the family as a legal institution.

There is, however, another narrative to be taken seriously. It tells that EU law strives to convert European individuals into members of the social and institutional spheres that prevail in their Member State of residence. The family is one of the ‘collective entities’ which individuals are destined to belong to.⁶⁹ Azoulai argues that family membership is of particular importance because it is ‘a proxy for social membership’:⁷⁰ families are not ‘mini-societies’ but entities which are central to the construction of a cohesive European society, hence the importance accorded by the EU to situations in which individuals ‘do family’. Caring and protecting, participating in the construction of stable communities are all some of the individual acts that contribute to the construction of a broader social community.

Different factors support this social membership narrative. It can be observed that in various provisions and judgments, family members are encouraged to play two main roles that are decisive for the cohesion of European society. The first role is to provide material and emotional support to the most fragile and vulnerable members of the society. This aspect is central in the rules on the family reunification of refugees. Special attention is given to the possibility for refugees to recreate a family: being vulnerable people, they need to enjoy a sphere of solidarity. This is why, in the TB case,⁷¹ and in the A.S. case,⁷² the Court has restated the importance of family reunification as a necessary way of making family life possible, ‘which is of particular importance for refugees on account of the reasons which obliged them to flee their country’.⁷³ Children being fragile and vulnerable individuals, the Court also values the role of their caregivers. As mentioned earlier, this led the Court in Depesme, Teixeira or Chavez Vilchez to characterise the stepfather as a ‘parent’ despite the absence of legal links, solely on the basis of the assistance provided. In the SM case,⁷⁴ the Court also decided that a child under a legal guardianship system such as Algerian kafala, although cannot be regarded as a ‘direct descendant’ of a Union citizen for the purposes of Directive 2004/38, can be defined as one of the ‘other family members’ referred to in Article 3(2)(a).⁷⁵ The words employed in Article 3(2)(a) are indeed capable of covering the situation of a child placed with citizens of the Union under the kafala system ‘in respect of whom those citizens assume responsibility for its care, education and protection’. In these different cases, the family was always conceived as the social entity best suited to provide protection and adequate care for the most fragile individuals.

Family members are called on to perform a second social function: to contribute to the stability of social relations. Coman is an interesting example because the argument which grounded the judge’s decision to grant same-sex spouses the right to move in the EU is the importance of protecting the family life that was created ‘or strengthened’ in another Member State. In so doing, the Court emphasises the individual’s need for stability, a social reality that is expected to benefit both individuals and society. In other cases, the Court values the actions taken by ‘family members’ which ensure the continuity of children’s education and integration in the host society. This is noteworthy in cases in which mothers (as in Chavez Vilchez) or stepfathers (as in Depesme) stand in for the children’s defaulting father by paying for maintenance and education in his stead. These persons deserve to be called ‘family members’ because giving children the opportunity to attend school and pursue further education is ‘a condition for the best possible integration of children of migrant workers in the social life of the host member State,’ Advocate General Kokott explained⁷⁶ The mother–child or stepfather–stepchild tie is not reducible to a form of universal human relation, based on legal ties or on feelings. It is based on specific relational links that contribute to the European project of creating a cohesive society. ‘Family members’ can thus be described as the active persons whose presence and care are required for the purposes of integration and stability. They are defined by the specific role they are destined to play in the common interest. Being a family member is a role given to the individual as part of broader relations with others embedded in European society. Performing useful social functions is what makes a family in EU law.

4.7 Conclusion

It is very tempting to believe that EU law fulfils only a limited role in family matters, restricted by national traditions and cultures. There are good reasons to believe that the (possible) influence of the EU on national models of family life is limited. In the absence of a general EU competence clause, there can be no real family law. In the absence of a sufficiently homogeneous social base, the EU would lack a basis for expressing a shared European conception of the family. In other words, the EU would not substitute its own value and representation.

However, this chapter has revealed that this description fails to account for the power of the EU’s language which contributes to modelling ‘the way we live and conceive our lives’.⁷⁷ It has been shown that despite the apparent variable geometry of the family, and the absence of a uniform category of ‘family’, the way in which the EU characterises a person as a ‘family member’ obeys a form of logic and expresses a certain rationality. Despite the fragmentation of sources and the modulation of family circles, rights and obligations are not randomly distributed; EU law projects a certain representation of the family. We have observed that in addition to the de jure family members, other persons are counted as family members on the basis of their ‘behaving’ like family members. Even when unnamed, European families exist: they are the groups of people who are assumed to perform – or asked to prove that they do perform – different functions, like education, care, protection, and socialisation. These roles are central because they contribute to a broader ambition – participating in the cohesion of the whole of European society, which is composed not of isolated individuals, but of social groups related by strong human bonds, and not only economic ties. This can be viewed as a limited contribution to the emergence of European society or, on the contrary, as the sign that EU integration is progressively taking on a more human face.

5 One Big Happy ‘European Family’? An External Perspective

Marja-Liisa Öberg

5.1 Introduction

Since the early days of European integration, the European Union (EU) has been concluding association agreements (AAs) with countries in its neighbourhood.¹ In addition to EU citizens who derive rights and obligations directly from the EU Treaties, an increasing number of non-EU citizens have been granted similar free movement rights in the internal market which places them in between the categories of ‘citizens’ and ‘foreigners’.² A situation both similar and different has been created by Brexit which altered the EU’s territorial scope and removed EU citizenship status from United Kingdom (UK) citizens.

The fact that non-EU member states, undertakings, and individuals are directly affected by the EU legal space raises questions as to what parameters, beyond the formal criteria, can distinguish between EU Member States and non-Member States, individuals holding citizenship of the respective countries,³ and families.⁴ With a focus on Turkish, European Economic Area (EEA), and Brexit (UK and EU) families, the chapter attempts to answer the principal question of whether the families of third-country nationals (TCNs) who exercise their free movement within the Union enjoy a similar level of recognition as do the families of EU citizens. There is no clear definition of what or who constitute an ‘EU family’.⁵ For the purposes of this chapter, the ‘EU family’ is understood as composed of an EU citizen and their family members of any nationality, who enjoy rights under EU primary and secondary law, including free movement, non-discrimination, and political citizenship rights under the EU Treaties and the right to private and family life under the EU Charter of Fundamental Rights (EU Charter) and the European Convention on Human Rights (ECHR); whose integration capability in the host Member State society is assumed; and whose family life stability is protected by the host society.

In EU free movement law, families are the natural corollaries of the freely moving individual and contribute to the achievement of the internal market. Family life is supported by the rights of family reunification and of EU citizenship, as well as EU anti-discrimination law and social policy regulations. Whereas citizenship status is restricted to the nationals of EU Member States, the rights enjoyed by EU citizens, with the exception of political rights, are not exclusive and can be granted to TCNs, including as direct right holders.⁶ However, in the case of AAs providing such rights to non-EU citizens, the scope of the rights is conditioned by the less ambitious aims of AAs as compared to the EU Treaties. This affects the situation of the non-EU families making use of the rights granted by AAs in the EU as well as the perception of the role of ‘family’ in the construction of the internal market. Unveiling the relevance accorded to family relationships in the external dimension of EU integration – as compared to integration within the EU – enables a deeper understanding not only of the individual conditions of freely moving families but also of the significance of the ‘family’ in the European integration process.

Section 5.2 discusses the role played by families in EU integration: initially, as facilitators and enablers of free movement and, later, as anchored in the fundamental status of EU citizenship. Section 5.3 explores the situation of Turkish families in the EU through the lens of ‘conditional’, ‘qualifying’, and ‘associated’ family statuses. Section 5.4, in contrast, explores the situation of EEA families as ‘equivalent’ families in relation to the EU families. Section 5.5 delves into integration as an objective under EU law and a qualifying tool vis-à-vis TCN families. Section 5.6 deals with the special case of Brexit families in the mixed EU–non-EU setting where the ‘integration-family rights’-axis is reversed. In Section 5.7, the chapter concludes that whereas a clear distinction can be made between EU families and some non-EU families, and the perception of the role of the family in the EU’s external instruments varies, the concept of the ‘EU family’ is, nevertheless, inherently flexible and open for conversion from the status of ‘non-EU family’ to ‘EU family’.

5.2 Family Rights as Corollary to Free Movement in the Internal Market

The freely moving individual has been accompanied by family members since the early days of the European Economic Community (EEC). The right to free movement of workers provided residence rights in the host Member State for the worker’s spouse, descendants under the age of twenty-one or dependent on the worker parent, and the dependent relatives in the ascending line of any nationality; the spouse and dependent ascendants and descendants were allowed to take up employment in the host Member State.⁷ The ancillary residence rights of family members were regarded as an auxiliary to achieving the free movement of workers and, thereby, realising the internal market.⁸ Due to the Member States’ immigration concerns, however, this process of liberalisation was not unlimited vis-à-vis family reunification with TCN family members.⁹

The scope of the rights of the ‘EU family’ in another Member State depends on whether the freely moving EU citizen’s family members are Union citizens or not. TCN family members are ‘derivative addressees of EU law’: their rights are based on their relationship with the primary addressee of EU law.¹⁰ For the family to come into the scope of EU law, the primary addressee – the EU citizen – must hold an ‘activity or status’ that makes the application of EU law relevant.¹¹

The introduction of EU citizenship with the Maastricht Treaty in 1993 solidified EU integration: by directly linking citizens to the EU, the Union could now foster the creation of an ‘EU identity’ distinct both from the Member States and from third countries.¹² For families in the EU, EU citizenship changed the playing field profoundly. The initial foundation of economic interests embraced by the establishment of the internal market was replaced by a rights-based and more general approach to the fundamental freedoms.¹³ Article 21(1) of the Treaty on the Functioning of the EU (TFEU) grants EU citizens a ‘right to move and reside freely within the territory of the Member States’, including rights that are ‘self-standing’, that is, rights which persist in the absence of a cross-border element and protect potential future movement.¹⁴ EU citizenship grants wide protection to EU citizens’ family members regardless of whether the latter themselves have exercised free movement within the EU.¹⁵ As a complement, citizenship rights have been further substantiated by EU family law measures facilitating free movement and creating a ‘common judicial area’.¹⁶

EU citizenship embodies a process in which political rights have been strengthened, integration deepened, and a common identity built among the peoples of the EU. This process is reflected in the Spanish memorandum ‘Towards a European Citizenship’, which states that an EU citizen is ‘not just a privileged foreigner but also a fundamental actor in the life of the European institutions’.¹⁷ By means of comparison, family members of any nationality supporting an EU citizen in exercising their free movement rights in another Member State equally assume the role of fundamental actors facilitating the use of free movement rights,¹⁸ and are, thus, not merely foreigners privileged with the possibility to reside in the Union. By analogy, the achievement of the aims of AAs which grant free movement rights to TCNs is facilitated by family members who enable a TCN to exercise those rights. Since TCNs are not EU citizens, however, the question of whether the rights of non-EU families warrant alignment with those enjoyed by EU citizens is contingent on whether a deeper notion of European identity and purpose in relation to the internal market and the European integration project can be assigned to TCN families.

5.3 The ‘Conditional’, ‘Qualifying’, and ‘Associated’ Turkish Family

The profundity of the aims of opening up the internal market to participation by non-Member States, which in some cases includes the free movement of workers, varies from one (usually) AA to another, from mostly economic exchanges in the 1963 AA concluded between the EEC and Turkey (EEC-Turkey AA)¹⁹ to deep cooperation in the area of the internal market and beyond as an alternative to membership in the EEA Agreement.²⁰ The variation among the aims of AAs resembles the development of free movement rights in the EU, from market integration to beyond.²¹

The EEC-Turkey AA set out to ‘promote the continuous and balanced strengthening of trade and economic relations between the Parties by, among others, establishing a customs union covering all trade in goods’,²² and ‘progressively securing freedom of movement for workers’.²³ Despite the long duration of the agreement, the latter has not yet been fully attained.²⁴ In terms of residency and other related rights, a Turkish worker’s family in the EU is, compared to an EU family, a ‘step-by-step qualifying family’. Pursuant to Decision 1/80 of the Association Council²⁵ which complements the AA with more specific rules on free movement, Turkish workers gain access to the labour market as well as some associated residence rights. However, it is within Member State competence to lay down rules for the first entry and residence of Turkish workers and their family members.²⁶

Similarly to the EU families’ free movement rights being subject to certain conditions, the right of Turkish workers to free access to employment and other related rights within the scope of the Decision can be limited on grounds of public policy, public security, or public health,²⁷ whereas the limitation must be ‘indispensable to safeguard that interest’.²⁸ As a general rule, a Turkish worker’s family members do not enjoy self-standing rights in the host Member State. The purpose of their right of residence is limited to ensuring family unity²⁹ in order not to ‘discourage’ the Turkish worker from exploiting the possibility to work in an EU Member State.³⁰ With the duration of their legal residence in the host Member State, the rights of the family members of a Turkish worker to take up employment in the host Member State gradually increase. Family members gain access to the employment market after three years of lawful residence upon ‘authorisation’ to join a Turkish worker in a Member State subject to, during the first five years, priority given to workers from the EU.³¹ Differently from the children of EU citizens, the possibility of the children of Turkish workers to join their parents in the host Member State is subject to conditions established by the Member State.³² However, after one of their parents has been legally employed in a Member State for at least three years, the situation of Turkish children who have completed a course of vocational training in the host Member State becomes more advantageous than that of other family members. They may take up employment without being subjected to any additional time restrictions.³³

The situation of Turkish children has been called an ‘association citizenship’ – a status sharing similarities with EU citizenship ‘while at the same time maintaining distinct limitations and some prerogatives’.³⁴ In Derin, the Court of Justice of the EU (CJEU) concluded that there are ‘significant differences between the respective legal situations’ of the children of Turkish workers and EU citizens.³⁵ Yet, the fact that the ‘significant differences’ are not only to the detriment of the Turkish children render the situations ‘ultimately incomparable’.³⁶

Overall, the Turkish family is an ‘association family’. Similarly to AAs, which cover a large variety of aims and mechanisms some of which replicate EU law and others not,³⁷ the legal situation of a Turkish family in terms of residency and access to the labour market comes close to that of an EU family but cannot be equated thereto. This owes largely to the humble aims of the EEC-Turkey AA as compared to the EU Treaties. The differences between the EEC-Turkey AA and other agreements, such as the EEA Agreement, became particularly explicit in judgments in the three cases United Kingdom v Council, which provided the CJEU with the opportunity to compare – and contrast – the objectives of the EEA Agreement,³⁸ the Agreement between the European Community (EC) and Switzerland on the Free Movement of Persons,³⁹ and the EEC-Turkey AA,⁴⁰ respectively. The judgments elucidate the differences in objectives and context of the agreements in question which, in accordance with the so-called Polydor-doctrine,⁴¹ impact the interpretation of the substantive provisions of the agreements, especially those which are worded identically to EU acquis.

In comparison with the other two agreements,⁴² the CJEU stated that the objectives of the EEC-Turkey AA are narrower than the fullest possible realisation of the free movement of persons, stating merely the wish of the contracting parties to secure between them the freedom of movement for workers in progressive stages.⁴³ As established in cases such as Demirkan⁴⁴ and Ziebell,⁴⁵ no general freedom of movement including for long-term residents equivalent to EU citizenship is in place between the EU and Turkey. Neither is the freedom of movement for workers as established in the EU applicable to the EEC-Turkey AA.⁴⁶ Such interpretations are not supported by the ‘exclusively economic’⁴⁷ character of the AA.⁴⁸ The differences in aims between the EEC-Turkey AA and the EU Treaties uphold the fundamental distinction between the rights provided to Turkish workers and their families as compared to their EU counterparts.

Despite the numerous limitations, the Turkish family is nevertheless not a forever qualifying family in the EU. In Er, the CJEU asserted that once a person has satisfied the conditions set out in Decision No 1/80, the Member States cannot adopt measures that would defeat the person’s ability to exercise the rights arising therefrom.⁴⁹ After the conditions have been satisfied and regardless of whether the Turkish family constitutes a burden on the social security system, the Turkish family has ‘qualified’ into the host Member State. This ‘qualification’ is also exemplified by Article 7(2) of Decision 1/80 whereby the child of a Turkish worker retains the right to take up employment in the host Member State even after their worker parent has left either employment or the host Member State altogether.⁵⁰ Article 14, furthermore, precludes automatic expulsion of Turkish nationals following a criminal conviction.⁵¹

Once in the process of qualifying or having already qualified, the Turkish family is also a ‘protected family’. First, in respect of decisions concerning the granting and renewing of residence permits and expulsion decisions, the EU standards of protection of fundamental rights apply,⁵² including the right to respect for private and family life by virtue of Article 7 of the EU Charter and Article 8(1) ECHR. Second, the ‘standstill’ clause in Article 41(1) of the EEC-Turkey AA provides stability for the family situation of Turkish families. The standstill clause precludes the Member States when regulating Turkish nationals’ first entry from adopting new restrictions to their establishment and residence in their territories compared to what applied at the time when the Additional Protocol entered into force.⁵³ This means that even though the situation of Turkish workers and their family members in the EU is not comparable to that of EEA European Free Trade Association (EFTA) nationals as discussed in the next section, their legal situation is stable and foreseeable over time.

5.4 The ‘Equivalent’ EEA Family

The EEA Agreement, which entered into force in 1994, provides more comprehensive free movement rights to TCNs than any other AA. The general objective of the EEA Agreement is to create a ‘homogeneous European Economic Area’ based on equal conditions of competition and respect for the same rules in view of promoting ‘continuous and balanced strengthening of trade and economic relations’.⁵⁴ As specified by the CJEU in Council v UK,⁵⁵ the EEA Agreement shall provide ‘for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole EEA, so that the internal market established within the European Union is extended to the EFTA States’.⁵⁶

The EEA Agreement covers nearly the entire spectrum of the internal market, including the free movement of persons.⁵⁷ Directive 2004/38,⁵⁸ which complements the Treaty provisions governing the free movement of persons by, inter alia, setting out the limitations and conditions attached to the rights to free movement enjoyed by Union citizens, has been incorporated in the EEA Agreement.⁵⁹ By means of the Directive, the right of residence in the territory of the EEA is granted to workers holding the nationality of an EU Member State as well as Iceland, Liechtenstein, and Norway, their family members, students, pensioners, and persons with sufficient financial resources.

Save for Articles 20 and 21 TFEU, which are not incorporated in the EEA Agreement, the scope of free movement rights under the EEA Agreement with the applicable exceptions is equivalent to the free movement of EU citizens in the EU, including the coordination of social security systems. For example, the CJEU has deemed that the aims of the EEA Agreement as well as ‘the level of integration already attained’⁶⁰ support extending the scope of Regulation 883/2004⁶¹ to the EEA and thereby ensuring the same social conditions for the exercise of the free movement rights for EU citizens and EEA EFTA States’ nationals alike.⁶² A clear distinction is made with regard to Turkey.⁶³ The fact that the Regulation does not apply to Turkish workers has profound consequences for the conditions under which the latter can exercise their free movement in the EU. To Turkish workers, instead, Decision No 3/80 of the Association Council⁶⁴ applies, providing only limited rights.⁶⁵

Similarly to the EU, free movement in the EEA is ‘to be exercised under objective conditions of freedom and dignity’ and also to be ‘granted to their family members, irrespective of nationality’.⁶⁶ Similarly to the case of Turkey, the right of residence of family members – either EU citizens in the EEA EFTA States or EEA EFTA State nationals in the EU – is a derived right dependent upon the EEA citizen who is the primary rights holder and intended not to ‘discourage’ the primary rights holder with family ties from exercising free movement.⁶⁷ In certain cases, such as divorce or when the Union citizen dies or leaves the host EEA state, a family member’s right to reside may become autonomous.⁶⁸

In terms of free movement rights, the situation of EEA families is largely comparable to EU families. This owes to the extensive aims of the EEA Agreement, the broad catalogue of free movement and corollary rights provided therein, as well as the generous, homogeneity-driven case law of the EFTA Court.⁶⁹ In a string of significant case law, the EFTA Court has gone to lengths to grant Directive 2004/38 in the EEA the same effect as in the EU, despite the different citizenship contexts.

The first case in the sequence, Clauder, concerned the family reunification of a German citizen who had been a long-time resident in Liechtenstein, with his wife, also a German citizen.⁷⁰ Both of them being non-economically active (pensioners), the reunification was claimed to cause an additional burden on the host state’s social assistance system. The issues at hand were the right to free movement and the right to family life. The EFTA Court confirmed the right of EEA nationals to move and reside freely within the territory of the EEA states regardless of economic activity, thereby protecting the right to family life as the necessary corollary to the right to free movement. In the following judgment in Gunnarsson, the EFTA Court confirmed the equivalence of the scope of free movement rights in the EEA with the free movement right of Union citizens irrespective of economic activity.⁷¹

The EFTA Court has been criticised for stretching the scope of rights granted to EEA nationals too far, going beyond the level of corresponding rights and obligations under EU law.⁷² Nevertheless, with Jabbi,⁷³ the EFTA Court continued the line of homogeneity-securing case law. In the case, the EFTA Court bypassed the CJEU’s interpretation in O. and B. of Directive 2004/38.⁷⁴ In O. and B., the CJEU interpreted Directive 2004/38 as not providing a derived right of residence to a family member of a Union citizen returning to their Member State of origin because in the EU context, Article 21(1) TFEU is instead applicable. This is, however, different with regard to the EEA. Via the controversial techniques of ‘effect-related homogeneity’,⁷⁵ or ‘reverse Polydor principle’,⁷⁶ the EFTA Court found that Directive 2004/38 shall be applied by analogy to a situation where an economically non-active EEA citizen returns with their TCN spouse to the EEA citizen’s home country. In Jabbi, the same result was achieved, in essence, as in O. and B. but by different – and controversial – interpretational means. Whether all of the examples mentioned above will be upheld by the CJEU in the EU-pillar of the EEA is left to be seen. At this point, the interpretation of the EU’s free movement rules in the EEA, especially by the EFTA Court, essentially follows the essence of the CJEU’s ruling in Metock,⁷⁷ in which the Court established the ‘protection of the family life’ of Member State nationals as a necessary corollary to ‘eliminat[ing] obstacles to the exercise of the fundamental freedoms’ provided by the Treaties – an aim that goes beyond achieving economic aims by means of the free movement of workers. It is, thus, possible to say that the objectives and substantial provisions of the EEA Agreement regarding the extension of the EU internal market to the EEA EFTA States as well as their subsequent interpretation strongly uphold homogeneity in the situation of EEA families as compared to EU families.

5.5 The ‘Integrated Family’?

The free movement of persons in the EU frequently collides with the interests of the Member States, including with regard to economic, social, and identity-related matters. Within the EU, tensions in the internal market concerning the free movement of persons are exemplified, for instance, by the transitional arrangements that restrict the free movement of workers from new Member States for a limited period of time, as well as the conditions that apply to the free movement of persons such as engagement in work or studies, or possession of sufficient funds. In the context of the free movement of persons, immigration concerns are considered but predominantly for the purpose of protecting the national social welfare systems. In the context of external migration, the conflict between the aim of enabling the free movement of workers and family reunification, on the one hand, and control over migration, integration, and the protection of national identity, on the other, is significantly more pronounced.⁷⁸

The EU is set out to constitute a space unifying differences between peoples, societies, and states on the basis of shared values, which are reflected in the terminology of integration in EU law: ‘belonging, membership, common values and solidarity’.⁷⁹ With the notable exception of developed countries including the EEA EFTA States and Switzerland, the assumption of a shared basis of common values does not apply to non-Member States nor to their nationals who can be subject to civic integration requirements in the EU.⁸⁰ Civic integration requirements are a perfect exemplification of the tensions inherent to family reunification. Whereas the economic development of the Union calls for the free movement of workers including from outside the EU, the introduction of civic integration requirements assumes that the cultural differences between the third country and the EU are significant and that the integration of TCNs into the EU Member States’ societies necessitates additional conditionality.

Traditionally, integration has been an issue determined by national laws controlling access to citizenship and, thereby, distinguishing the ‘perfect citizens’ from the ‘foreigners’.⁸¹ Integration has entered the realm of EU law as a result of the ‘Europeanisation of immigration policy’, which gives EU the role of controlling integration⁸² via, for example, residency and family reunification rights. The increasing attention to integration in the EU is accentuated by the creation in 2019 of the alarmistic-sounding post of a Commissioner and Commission vice-president for ‘Protecting our European Way of Life’.

The aim of family reunification is to facilitate family life as well as help ensure the family’s integration in the host Member State subject to restrictions laid down in law but is, as previously mentioned, not unconditional. Directive 2003/86 allows the Member States to reject an application of family reunification on grounds of public policy, public security, or public health.⁸³ Furthermore, a Member State may, while considering the child’s best interests, set up additional requirements for ‘overriding reasons in the public interest’ regarding the family reunification of a TCN worker parent with minor-age children; the requirements include the consideration of ensuring successful integration, that the parent worker (1) has resided in the Member State for less than two years; (2) has an appropriate dwelling; (3) has sufficient income to support for themselves and their family; and (4) complies with integration-related measures established by the Member State.⁸⁴

Under certain conditions, Member States are permitted under Article 15(3) of Directive 2003/109 to establish integration requirements, such as those of civic integration for TCNs under national law.⁸⁵ When the conditions set by one Member State are met, the requirements are automatically satisfied within the entire EU.⁸⁶ ‘Once’ a TCN is integrated in one Member State, he or she is, thus, ‘always’ integrated in the entire EU notwithstanding the fact that integration is ultimately a matter of degree rather than absolute quantity.⁸⁷

The CJEU has interpreted the lawfulness of the Member States’ integration requirements on multiple occasions, often in the context of the EEC-Turkey AA. In Dogan, the CJEU considered the compatibility of a German requirement of basic language skills as a precondition for family reunification with the standstill clause in the EEC-Turkey AA. The Court recognised that the grounds put forward by the German government – the prevention of forced marriages and the promotion of integration – can constitute overriding reasons in the public interest but that German law goes beyond what is necessary to attain the objective as the dismissal of the application is automatic and does not allow for consideration of the specific circumstances of individual cases.⁸⁸

Another case, Genc,⁸⁹ concerned a Danish rule restricting the reunification in Denmark of TCN children above the age of fifteen with their sponsor parent, a TCN worker, after two years of legal residency unless justified by ‘particularly compelling reasons’, including ‘regard for family unity’.⁹⁰ The rationale behind the Danish rule is to prevent granting residence rights to minor-age children who have had most of their upbringing and schooling in their country of origin and whose chances of successful integration in the Danish society are, therefore, low. Because of the lack of individual assessment of the applicants’ integration potential on the basis of ‘sufficiently precise, objective and non-discriminatory criteria’,⁹¹ the Court deemed the rule to breach the standstill clause in the EEC-Turkey AA. The focus of the national rule is on the individual with little integration potential rather than on the family as a whole. In the absence of a possibility of family reunification with minor children, however, the entire family may be less likely to integrate fully into the host Member State society. In Genc, the Court upheld the standstill clause and, thereby, the function of families as supporting elements of integration in the host society.

In the more recent case B,⁹² the Court considered whether the age limit of fifteen years below which the child of a Turkish worker residing legally in the host Member State may apply for family reunification constitutes a ‘new restriction’ prohibited by the standstill clause in the EEC-Turkey AA, and, if so, whether it could be justified by the objective of ensuring successful integration of the TCN which could constitute an overriding reason in the public interest. In this case, the Court decided that since practice did not provide evidence of the Danish authorities ‘systematically refusing’ applications for family reunification from children aged fifteen and above, the provision did violate the standstill clause but could be justified on legitimate grounds and was proportional to the aim pursued. A careful consideration of individual cases, thus, justifies restrictive national rules on family reunification. It is also implied that the supporting role of family members in achieving the aims of free movement of workers can be subject to the integration potential of individual family members. Family members with potential integration difficulties, such as a spouse with insufficient command of the official language of the Member State in question, or a child considered too old to successfully acquire the language, values, and professional or academic skills, are not considered to have the prospects of being able to sufficiently contribute to the Member State’s society and labour market. They are not regarded as supporting the integration of the Turkish worker in the host Member State and, thereby, helping achieve the predominantly economic aims of the EEC-Turkey AA to a degree that would outweigh the potential costs for the host society.

Another important question to consider is whether, and to what extent, TCN families can maintain connections to and be successfully integrated in more than one country. In A, the Court held that the relationships that individuals can have with different countries, including EU Member States and third countries, are ‘not mutually exclusive’ and that the attachment of a third country (in this case Turkish) national to their country of origin cannot determine their prospects of integration.⁹³ A national provision based on a contrary claim was thus not considered suitable for achieving the aim of integration in the host society.⁹⁴ The question of an individual’s attachment to more than one Member State is equally relevant in a purely EU or even national context,⁹⁵ with less at stake in terms of free movement rights than the effect of the distribution of rights.⁹⁶ Only in exceptional circumstances such as expulsion does it become acutely pertinent to establish a Member State to which the individual is primarily integrated.⁹⁷ Directive 2004/38 exemplifies the correlation between integration and rights. A similar correlation in the form of time scales, which indicate certain rights becoming available, applies to the qualifying periods of the family members of Turkish workers in an EU Member State’s labour market.

It is generally accepted that EU citizens have connections to and are integrated in different Member States. Free movement, which has the effect of leading to integration in different Member States, is strongly encouraged. Initially, participation in the labour force of the host Member State’s society and contributing thereto in the form of paying taxes constituted a test of integration.⁹⁸ However, the emergence of a specific ‘objective’ of integration in EU law whereby rights are expected lead to the integration of an individual in the host Member State⁹⁹ has marked a departure from the economic foundation of free movement rights.¹⁰⁰ It is, thus, relevant in the EU’s external and internal contexts alike.

The possibilities of family reunification and the independent rights of the Turkish workers’ family members are limited by the predominantly economic rationale of the EEC-Turkey AA. Against the backdrop of the long period of stagnation in the Turkish EU accession process, there are currently no indications of a sudden deepening of the relationship between the EU and Turkey that would warrant a new impetus for the free movement of Turkish workers in the EU and the accompanying rights of family members.

The overall situation of Turkish workers and their families in the EU is comparable to long-term guests at a hotel. Turkish families are provided entry into the EU, but their key cards open the door to one room only – the one Member State in which the long-term residency under Directive 2003/109 is granted. The Turkish family is not considered part of the family (the ‘collectively constituted society in a deeper sense’)¹⁰¹ and cannot move themselves freely in the entire house (‘the EU’s full territory in a geographical sense’).¹⁰² Yet the Turkish family is welcome to contribute to the society by participating in the labour force and demonstrating willingness and capability of integration into the society, upon the formal achievement of which – the acquisition of citizenship of an EU Member State by any of the family members – it can become a genuine ‘EU family’.

5.6 The ‘Removed’ Brexit Families

Brexit has brought about a dramatic change in the status of EU families in the UK, and British families in the EU. Solving the situation of the families finding themselves on the ‘other’ (but – importantly – not ‘wrong’) side of the EU-UK border was one of the priorities in the countless rounds of withdrawal negotiations. The importance of families in the midst of the Brexit turmoil is reflected in the Preamble to the Withdrawal Agreement, which recognises the necessity ‘to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights’ before the end of the transition period.¹⁰³ The fact that the EU’s AAs scarcely mention families highlights the significance of families (duly defined) in the unusual legal relationship between the EU and the UK as a former Member State.

Brexit families are distinct from the Turkish and the EEA families in that the emphasis in the comparison of their legal situation with that of EU families is on the differences rather than similarities. Putting an end to the free movement of persons was one of the main arguments in the Brexit debate that ended in the UK leaving the Union.¹⁰⁴ Yet, citizenship rights have been extended to individuals and families directly affected by Brexit with certain important distinctions. In the context of Brexit families, it is pertinent to ask how the former or sustained connection to the EU affects their legal situation.

Article 9(a) of the Withdrawal Agreement provides a broad definition of family members. A Brexit family is comprised of persons ‘irrespective of their nationality’ who are ‘family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC’ or other persons ‘whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence’.

As a former Member State, the relationship of the UK with the EU is substantially different from both Turkey and the EEA EFTA States. The focus in the Brexit process and in the reconstruction of a legal and political relationship post-Brexit has not (yet) been on strengthening ties, but rather on finding a satisfactory solution to protecting the individuals and families affected by the UK’s withdrawal and enabling them to maintain the relationships and ties of integration to their states of residence and origin, as well as to their habitual lives, families, communities, and identities.¹⁰⁵

The Withdrawal Agreement contains provisions on EU citizens who have exercised their right to reside in the UK, UK citizens who have exercised that right in the EU before the end of transition period, as well as their family members including children born or adopted in the future.¹⁰⁶ Article 13 allows continued residence rights in the UK for EU nationals, EU national family members, and TCN family members, based indirectly on Directive 2004/38 and conditional upon participation in the labour force, being a student, having sufficient funds, or being a family member of a worker – hence, belonging to a qualified category.

More severely affected by Brexit are vulnerable persons falling outside of the qualified categories, such as family members with insecure career paths or working periods intertwined with periods of absence from the labour market.¹⁰⁷ These and other categories of people who, within the EU, would have been caught by the safety net of EU citizenship and the limited manifestation of financial solidarity are, in the post-Brexit reality, left without protection.¹⁰⁸

Under Article 15(3) of the Withdrawal Agreement, five years of legal residency grants EU and UK citizens and their family members a right to permanent residency on the conditions provided by EU free movement law; periods before as well as after the transition period shall be included. Under Directive 2004/38, the status of permanent residency can be lost after two years of absence from the host state whereas the Withdrawal Agreement allows for a five-year period of absence.¹⁰⁹ The status is not lost if either the EU or UK citizens or their family members change status, with the exception of family members whose rights of residence depend on the primary right holder after the end of the transition period and who cannot become primary right holders.¹¹⁰ This is a significant difference from Turkish workers who lose residency rights upon leaving the host Member State for a significant, but undefined, period of time without a valid reason such as maternity leave or sickness.¹¹¹ Whereas efforts have, thus, been made to ensure stability in their residence situation, Brexit has disrupted the previously relatively unbureaucratic life of EU-UK families. The Withdrawal Agreement provides a possibility for the respective host States to require EU or UK citizens and their family members to apply for a new residence status – the ‘settled status’ – which entails rights under the Agreement,¹¹² but which has also been subject to severe criticism.¹¹³

In stark contrast to the limitations applying to the family members of Turkish workers, the family members of EU or UK citizens holding the right of residence or permanent residence in the UK or the EU, respectively, enjoy an unconditional right to take up employment or self-employment in the host State.¹¹⁴ In situations where a family is separated by the primary carer of the children of an EU or UK worker leaving the host State, certain stability is ensured for the remaining family members. The children retain a right of residency until they reach the age of majority, or longer if the child continues their studies and needs ‘the presence and care of the primary carer’,¹¹⁵ hence not disrupting the daily lives of the family members.

Under EU law, the divided but not necessarily broken family receives special attention. By virtue of EU citizenship, individuals as well as families enjoy the freedom to choose how and where to conduct their family life. This is, for example, reflected in Regulation 883/2004, which enables the payment of family benefits and tax credits by the host Member State for the EU workers’ children residing abroad.¹¹⁶ The Regulation also applies in the EEA. The EU family can choose to be spread out across the Union, and beyond. The EU family has the freedom not to cohabit but to nevertheless function as an economic and social family unit, and also to reunite at will. By the powerful statement of the European Commissioner for Employment, Social Affairs, Skills and Labour Mobility, there are no ‘second-class workers in the EU’, and no ‘second-class children’.¹¹⁷ The payment of family benefits by a Member State for children residing in another Member State reaffirms the status of a family that does not cohabit on a daily, weekly, or even a monthly basis. Not bringing a family along to the host Member State constitutes, if it represents the choice of the family, an alternative means of supporting free movement in the EU.¹¹⁸ If the family members of an individual exercising their free movement right did not wish to or could not move from their Member State of origin, considering the family as a unit only if sharing a household on a permanent basis would obstruct the freely moving individual. The flexible approach to the physical location of individual family members offers space for individual considerations of the best interests of the family.

Brexit families are, overall, ‘removed’ families – not necessarily due to their rights gained under EU (citizenship) law but, potentially, due to their identity as ‘EU families’. Differently from the Turkish and the EEA families, the Brexit families have a sustained and genuine connection to the EU, either via citizenship or place of residence, but the maintained rights of individuals and family members are not intended to reinforce integration, specifically. Instead, the sustained connection to the host State society via rights of residency and taking up employment as well as access to the social security systems serve the purpose of maintaining pre-existing family relationships. The rationale of the derived rights of family members in the cases of the Turkish and the EEA families to support the achievement of economic or further integration aims, respectively, is, thus, reversed in the case of Brexit.

5.7 Conclusion

On the basis of the expansion of EU integration beyond the Union’s borders providing free movement rights to many groups other than EU citizens and accompanying rights to their family members, is it possible to conclude that an all-encompassing ‘European family’ is about to emerge? The examples of Turkish, EEA, and Brexit families indicate large variations in the situations and scope of rights of family members of freely moving workers based on whether the respective non-Member State’s cooperation with the EU is based on predominantly economic rationales, guided by the aim of achieving deeper integration, or focused on maintaining a former status. However, the boundaries between ‘EU families’ and their ‘non-EU’ counterparts are more or less opaque depending on the legal arrangement. The mutually strong efforts on behalf of the EU as well as the EEA EFTA States and, in particular, the EFTA Court are leading to increasingly homogeneous conditions for the purpose of exercising free movement rights by EU and EEA families. Furthermore, over time, as witnessed by the ‘qualifying’ Turkish families, the dissimilarities between the rights of EU and non-EU families become less distinct. This is different in the case of Brexit families whose family status is conserved with a focus not on deepening but on maintaining rights previously enjoyed.

As noted above, to appreciate whether the conditions of non-EU families in the EU should warrant alignment with the situation of EU families, it is necessary to consider the extent to which TCNs carry a deeper notion of European identity and purpose. In the EU, TCN workers and, indirectly, their families contribute to achieving both the core aim of the EU integration project – the creation of the internal market – and its expansion to non-Member States. The role of the freely moving workers and their families is instrumental to achieving the latter. Furthermore, there is no reason to assume that a TCN individual cannot foster a sense of belonging and identity towards an EU Member State to a level comparable to an EU citizen exercising their right to free movement. Brexit constitutes a distinctive example of truly mixed identities across the EU–UK borders.

It is important to bear in mind that differently from an ‘individual’ or ‘citizen’, the concept of an ‘EU family’ or a ‘non-EU family’ is inherently flexible. A ‘non-EU family’, too, is a flexible category in that a family is to certain extent autonomous from its country of origin. One or more members of a family can make use of free movement rights, take up work in an EU Member State, become a permanent resident, and, eventually, assume that Member State’s citizenship, thereby becoming an EU citizen and granting the entire family the status of an ‘EU family’. During this process, on the individual level, the economic rationale of a TCN to work in the EU is replaced by a level of identity with the host society and integration therein. The ‘EU family’ is, thus, a concept less closely tied to the processes of membership, accession, and withdrawal from the EU and per definition more open to welcoming new members.