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I could have asked this as a comment to this question to phoog, but I don't have enough reputation to comment there, so I have asked this as a formal question.

EU law allows non-EU Core family members (spouse, minor child, dependent ascendants etc.) to join their EU family member to a member state other than the one the EU family member is a citizen of.

Moreover, it also allows "extended" family members (it can be anyone, who is either dependent or member of the household) to join their EU family member to join them in a member state other than the one the EU family member is a citizen of.

That way, I think, the majority of the parents would anyway qualify for residence even if they are in no possible way dependent. They could simply apply through the "extended" family option by stating that they are bona fide members of the household (in the majority of the countries, except Bhutan and some others, parents live together with their Son and daughter-in-law). So almost every son (adult child) can sponsor his parents as they will most likely be bona fide members of the household.

See the last row of the table on this page. It says:

For non-dependent parents, see beneficiary below.

So I ended up on this page, which has clearly stated in one of the rows of the table, that there ought to be either of the two cases: dependency, or member of the household.

All this is crystal clear to me. If literally ANYONE is a household family member, EU law legally directs member countries to admit such members to the EU country the EU citizen is immigrating to, as an extended family member. [all this is published in the directive in a very clear unambiguous wording. I know member countries have individual discretion as a right here, I don't see how could they say, "no, although your independent parents are household members, we reject to accept them as extended family as they are not either dependent or household member"]

This directly means that ALL parents, regardless of any dependence are eligible to join their adult child in another EU country, as parents in the most cases live with their son. If the EU citizen is a daughter, things are different though.

Is my interpretation right?

I saw a very close discussion where @phoog gave a similar conclusion like I have (see in the comments section of this question.

I just want to confirm this once and for all.

Relaxed
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Montu Soni
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    It's probably simply the result of a different life experience but to me “being a member of a household” is actually a higher standard to meet than merely being dependent and not the case of all adult sons. – Relaxed Aug 09 '20 at 21:31
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    Also, we can discuss the directive all we want and there is also some case law you might refer to but it's simply not the case that all EU citizens can easily bring their extended family into the EU. Depending on your exact situation and country of residence, you should definitely prepare for some pushback. – Relaxed Aug 09 '20 at 22:11

1 Answers1

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Your reasoning hinges on the notion that parents are necessarily household members. On a purely formal level, it's not the case, it's an additional material requirement thus explicitely ruling out family reunification with parents qua parents.

You wrote:

That way, I think, the majority of the parents would anyway qualify for residence even if they are in no possible way dependent. They could simply apply through the "extended" family option by stating that they are bona fide members of the household (in the majority of the countries, except Bhutan and some others, parents live together with their Son and daughter-in-law). So almost every son (adult child) can sponsor his parents as they will most likely be bona fide members of the household.

[…]

This directly means that ALL parents, regardless of any dependence are eligible to join their adult child in another EU country, as parents in the most cases live with their son. If the EU citizen is a daughter, things are different though.

I don't share this analysis but this doesn't really impact the legal question: your parents need to establish that you formed a household before moving to the EU, not merely that they are your parents. That's in marked contrast to the spouse, minor children and minor children of the spouse, who do not have to meet this requirement.

Furthermore, the language of the directive is actually quite guarded. Let's look at the detail of article 3:

  1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

  2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

    (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants 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;

    (b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Here again, there is a direct contrast between the immediate family mentioned in article 3(1), to whom the directive applies, and other beneficiaries listed in article 3(2), to whom it does not. For the latter, member states should merely “facilitate” entry and residence “in accordance with its national legislation”. In other words: They are not entitled to anything under EU law, which explicitely gives a lot of leeway to national law.

The only specific obligation described is “justify[ing] any denial of entry or residence to these people”, which means that such a denial is perfectly allowed and not even limited to specific grounds (as is the case for EU citizens and their immediate family).

The same is true of the recitals detailing the motivation behind the directive:

(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

While it does mention extended family members, far from extending the same rights to them, it explicitely states that they “do not enjoy an automatic right of entry and residence”, again citing “national legislation”.

Finally, as detailed on the EU movement website, there is another stipulation, namely that the family must have formed a household “in the country from which they have come”. This is actually a restriction: it means the household must have existed immediately prior to moving to the EU member states. For example, if you studied abroad and started a career there before moving to the EU, you cannot sponsor your parents, even if you lived with them earlier in your life (unless they are dependent on you, e.g. financially). Similarly, if you lived several years in the EU before naturalizing and moving to another EU country, it would also seem to rule out this route as you did not form a household anymore at the time the directive is engaged.

Relaxed
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    +1, but "...even if you lived with them earlier in your life," unless they are dependent on you. – phoog Aug 10 '20 at 01:17
  • @Relaxed Excellent analysis! I acknowledge that parents do not necessarily have lived with the adult son, which is why I employed the usage of "almost", but I think I should have acknowledged that clearly in my question rather a mere "almost".

    "For the latter, member states should merely “facilitate” entry and residence “in accordance with its national legislation”.... not entitled to anything under EU law, which explicitely.... to national law."

    "...it explicitely states that they “do not enjoy an automatic right of entry and residence”, again citing “national legislation”."

     – Montu Soni Aug 10 '20 at 06:41
  • ^I totally understanding this freedom of member countries to decide according to theri own national legislation. Keeping them in view, I would like to ask the following: – Montu Soni Aug 10 '20 at 06:42
  • So, in your eyes, household membership is a higher standard to meet than merely being dependent. Agreed. Let us assume an EU citizen's parents are indeed household members and had been living in the same household before the EU citizen exercised his/her right of free movement with his family. Now, every country will have its own national legislation for assessing whether entry should be facilitated or given. Agreed. But when they have to deny entry, they are obliged to give proper reason for refusal. Agreed. – Montu Soni Aug 10 '20 at 06:53
  • My thinking is that, there is no possible refusal reason that any member state could provide against a parent of an EU citizen who has been living together in the same household immediately before the EU citizen exercised his/her right of movement, provided they are not a threat to the public (security/terrorism risks, health risks like infectious disease, likelihood of public welfare dependence etc..). – Montu Soni Aug 10 '20 at 06:56
  • Is this right? Can you or @phoog provide me one example when parents can be barred from entering (apart from those public threats) the member state provided they have genuinely lived together in the same household before moving? – Montu Soni Aug 10 '20 at 06:56
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    @MontuSoni No this is not right. For example you could get a refusal if the case worker is in a bad mood or the consulate makes an habit of refusing 90% of application and see what sticks in court (I am being provocative but I speak from experience with a particular French embassy in Africa here). Since the text makes no reference to “public policy, public security or public health” and states that you are “not entitled” to residence, it doesn't matter what they invoke, you don't have a strong legal basis for an appeal. – Relaxed Aug 10 '20 at 08:37
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    For your reasoning to have any weight, the text should explicitly mention threats to “public policy, public security or public health”. It does not, not in this context but only for EU citizens and close family. For extended family, the consulate merely has to give a reason (for some national visas, you're not even entitled to that), the directive doesn't establish a restrictive standard against which to evaluate this reason, as it does in other places. – Relaxed Aug 10 '20 at 08:39
  • @Relaxed Thank you for enlightening me about this possibility. You wrote in your answer that member states are, though, obliged to justify the denial of residence application for extended members. You also mention that there are not even any specific grounds for denial and it can be anything from bad mood to habit of majority refusals. I wonder what reason would they "make-up" for the refusal on the refusal letter? I am asking because I am honestly not able to comprehend what they would mention as "the reason of refusal (as you said they are obliged to give a reason)". – Montu Soni Aug 10 '20 at 09:17
  • You say that I don't have a strong legal basis for an appeal. Okay. But if the member state really provides a reason that is apparently "cooked-up", wouldn't I have a strong legal basis for an appeal if I approach European courts? I accept that EU has no control over this matter, but at least the Court can say that member states are deliberately refusing applications with obviously unacceptable reasons of refusal. I am not telling that EU decides what the "typical" reasons for refusal should be, I am just telling that Courts would find out that something is definitely wrong here. – Montu Soni Aug 10 '20 at 09:21
  • When I gave this a further thought (after sometime posting ^the comments), I realized that may be this is how it works and I have to accept that. May be they could literally just claim that I haven't produced enough evidence in my application, and I would really not be able to argue anything for myself in an EU court. I think if that's the actual case, I have nothing else to ask. Thank you @Relaxed for helping, but I would still like to hear what phoog thinks about this. If they agree on this, I will accept your answer. Thanks:) – Montu Soni Aug 10 '20 at 09:42
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    @MontuSoni It would depend on the specifics of the case. A good place to start would be that you didn't really form a household. Then they might invoke all sorts of requirements defined in national law, which need not be limited to threats to “public policy, public security or public health”. They just need to avoid being completely stupid (i.e. not use something ludicrous or demonstrably incorrect) and even then an appeal might be a struggle (as it was in the case I alluded to, even if we eventually prevailed). – Relaxed Aug 10 '20 at 09:44
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    The key thing to understand is the way the procedure unfolds. You don't get to approach European courts, you lodge an appeal before national courst invoking EU law. Reading your comments, I get that you really really want the courts to apply some implicit standard to the justification. They might, to some extent, but absent any explicit standard in the directive, they would defer to the original decision and flat out refuse to evaluate it in details. – Relaxed Aug 10 '20 at 09:50
  • I got to learn new things today which I would have never discovered myself. Thanks! – Montu Soni Aug 10 '20 at 09:57
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    @MontuSoni Note that the different judicial cultures and national court systems in the EU still differ quite a bit. For example, some courts will conduct much more extensive fact finding or evidence gathering than others, who will restrict themselves to reviewing the internal coherence of the decision. Some courts are also quicker to refer cases to the EU courts for prejudicial questions while others just interpret EU law directly. – Relaxed Aug 10 '20 at 10:03
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    @MontuSoni I don't have anything to add to what Relaxed has said, nor do I see anything to disagree with. I suppose the criteria for the reasonableness of a refusal would largely fall to domestic law. – phoog Aug 11 '20 at 02:40