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Obstacles to the Free Movement of Rainbow Families in the EU

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Obstacles to the Free Movement of Rainbow Families in the EU STUDY Requested by the PETI committee Obstacles to the Free Movement of Rainbow Families in the EU Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 671.505- March 2021 EN Obstacles to the Free Movement of Rainbow Families in the EU Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, examines: (i) the obstacles that rainbow families (same-sex couples, with or without children) face when they attempt to exercise their free movement rights within the EU, including examples in petitions presented to the PETI committee; (ii) how EU Member States treat same-sex married couples, registered partners, unregistered partners, and their children in cross-border situations; and (iii) action that EU institutions could take to remove these obstacles. This document was requested by the European Parliament's Committee on Petitions. AUTHORS Alina TRYFONIDOU, Professor of Law, University of Reading (UK) Robert WINTEMUTE, Professor of Human Rights Law, King’s College London (UK) ADMINISTRATOR RESPONSIBLE Ottavio MARZOCCHI EDITORIAL ASSISTANT Ginka TSONEVA Sybille PECSTEEN de BUYTSWERVE LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels Email: [email protected] Manuscript completed in March 2021 © European Union, 2021 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover images used under licence from Adobe Stock.com Obstacles to the free movement of rainbow families in the EU CONTENTS LIST OF ABBREVIATIONS 8 EXECUTIVE SUMMARY 9 1. INTRODUCTION 11 2. THE SOCIAL PROBLEM: RAINBOW FAMILIES AND THE OBSTACLES THEY FACE WHEN MOVING WITHIN THE EU 13 2.1. Introduction 13 2.2. The obstacles rainbow families face when moving within the EU 14 2.2.1. Refusal of family reunification rights to same-sex couples and/or their children 15 2.2.2. Non-recognition of a same-sex couple as a ‘couple’ for the purpose of receiving benefits and beneficial treatment reserved for ‘couples’ 17 2.2.3. Non-recognition of the parent-child relationship between a child and both parents who are of the same-sex, as this has been legally established elsewhere 18 3. THE RELEVANT LEGAL FRAMEWORK 22 3.1. Introduction 23 3.2. EU citizenship and the Right to Free Movement of Union Citizens 23 3.3. Family Reunification Rights under EU Free Movement Law 27 3.4. The Hierarchy of EU Norms and the Relationship between EU law and national law 30 3.5. EU Competence and the Scope of Application of EU law 31 3.6. Fundamental Rights Protection under EU law 32 3.7. EU law and LGB rights 33 3.8. The Relationship between the EU and the EConHR 36 4. SAME-SEX MARRIED COUPLES 38 4.1. Introduction 38 4.2. The Derived Right of Same-Sex Spouses of EU Citizens to Enter, Reside, and Work in Another EU Member State 39 4.2.1. The 2018 Coman & Hamilton judgment of the Court of Justice of the EU 39 4.2.2. Compliance with Coman & Hamilton in Romania 42 4.2.3. Compliance with Coman & Hamilton in other EU Member States 43 4.2.4. Equal Treatment of Same-Sex Married Couples Under National Law (Other than Immigration Law) in Another EU Member State 45 4.3. Recommendations 48 5. SAME-SEX REGISTERED PARTNERS 49 5.1. Introduction 49 PE 671.505 5 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs 5.2. The Derived Right of Same-Sex Registered Partners of EU Citizens to Enter, Reside, and Work in Another EU Member State 50 5.2.1. ‘Spouse’ vs. ‘registered partner’ vs. ‘partner in a durable relationship’ 50 5.2.2. Compliance with Article 2(2)(b) of Directive 2004/38/EC in EU Member States 50 5.2.3. Equal Treatment of Same-Sex Registered Partners Under National Law (Other than Immigration Law) in Another EU Member State 53 5.2.4. After Coman & Hamilton, should the condition ‘if the legislation of the host Member State treats registered partnerships as equivalent to marriage’ in Article 2(2)(b) of Directive 2004/38/EC be annulled as contrary to Article 21 of the Charter? 55 5.3. Recommendation 56 6. SAME-SEX UNREGISTERED PARTNERS 57 6.1. Introduction 57 6.2. The position of same-sex unregistered partners under national law 58 6.3. The current EU legal framework regarding the position of same-sex unregistered partners who move between EU Member States in exercise of EU free movement rights 59 6.3.1. Family reunification rights 60 6.3.2. Other rights to which the couple is entitled once admitted into the territory of the host Member State 61 6.4. Same-sex unregistered partners under the ECHR 62 6.4.1. Family reunification rights 63 6.4.2. Other benefits and entitlements 64 6.5. Same-sex unregistered partners under other international instruments 65 6.6. What requirements must EU law impose on EU Member States with regard to same- sex unregistered partners who exercise free movement rights under EU law? 66 6.6.1. Family reunification rights 66 6.6.2. Other benefits and entitlements that the couple may wish to claim in the host EU Member State 69 6.7. Recommendations 70 6.7.1. Family reunification rights 70 6.7.2. Other benefits and entitlements which the couple may wish to acquire in the host Member State 71 7. CHILDREN OF SAME-SEX COUPLES 73 7.1. Introduction 73 7.2. The position of the children of same-sex couples under Member State laws 74 7.3. The current (unclear) EU legal framework regarding the position of the children of same-sex couples who move between EU Member States in exercise of EU free movement rights 76 6 PE 671.505 Obstacles to the free movement of rainbow families in the EU 7.4. The legal recognition of the parent-child relationship under the EConHR 81 7.4.1. Cases concerning the parent-child relationship in situations involving LGB (single) parents or same-sex couples 81 7.4.2. Cases concerning the refusal of an EConHR signatory state to legally recognise a parent-child relationship already established in another country (heterosexual individual or married opposite-sex couple) 83 7.5. Children of same-sex couples under other international instruments 85 7.6. What requirements should EU law impose on EU Member States with regard to the cross-border legal recognition of familial ties among members of rainbow families who exercise EU free movement rights? 86 7.6.1. Family reunification rights 87 7.6.2. Other benefits and entitlements that the family may wish to claim once admitted into the territory of the host Member State 89 7.7. Recommendations 92 7.7.1. Family reunification rights 92 7.7.2. Other benefits and entitlements that the family may wish to claim once admitted into the territory of the host Member State 92 8. WHAT THE EUROPEAN UNION COULD DO TO REMOVE THE OBSTACLES FACED BY RAINBOW FAMILIES 94 8.1. Introduction 94 8.2. Competence 94 8.3. Litigation 95 8.4. Legislation 96 8.5. European Commission: Non-binding (‘soft law’) measures 98 8.6. European Parliament: Non-binding (‘soft law’) measures 99 9. CONCLUSIONS AND RECOMMENDATIONS 100 ANNEX 1 - A SELECTION OF REAL CASES ILLUSTRATING THE OBSTACLES FACED BY RAINBOW FAMILIES 104 ANNEX 2 - CASE LAW OF THE CJEU AND THE ECTHR RELEVANT TO RAINBOW FAMILIES 107 ANNEX 3 – MARRIAGE AND REGISTERED PARTNERSHIP LAWS OPEN TO SAME-SEX COUPLES IN THE EU 118 ANNEX 4 – QUESTIONNAIRE SENT TO THE EUROPEAN CENTRE FOR PARLIAMENTARY RESEARCH AND DOCUMENTATION (ECPRD) 120 PE 671.505 7 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs LIST OF ABBREVIATIONS AConHR American Convention on Human Rights Charter Charter of Fundamental Rights of the European Union CJEU Court of Justice of the European Union EConHR European Convention on Human Rights ECPRD European Centre for Parliamentary Research and Documentation ECtHR European Court of Human Rights IACtHR Inter-American Court of Human Rights ICCPR International Covenant on Civil and Political Rights LGB Lesbian, gay, and/or bisexual1 OJ Official Journal of the European Union NELFA Network of European LGBTIQ* Families Associations PACE Parliamentary Assembly of the Council of Europe PACS Pacte civil de solidarité (civil solidarity pact) TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UNHRC United Nations Human Rights Committee 1 In this study, the focus is specifically on same-sex couples (with or without children) and the discrimination they face based on their sexual orientation, as it emerged from the petitions examined by the PETI committee. In addition to this study, more research is needed into the obstacles and discrimination that transgender and intersex persons (with or without children) face when they attempt to move freely within the EU. 8 PE 671.505 Obstacles to the free movement of rainbow families in the EU EXECUTIVE SUMMARY Findings This study examines the obstacles that rainbow families (same-sex couples, with or without children) face when they attempt to exercise their free movement rights within the EU, including examples in petitions presented to the PETI committee.
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