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

Family law is frequently assumed to lie outside the legal competence of the European Union and to be an issue of marginal relevance to European Union law. Admittedly, a cursory reading of the founding EU Treaties will confirm the absence of any Treaty mandate for the Union to develop a family policy. Nonetheless, Community law has impacted upon national conceptions of the family since its foundation. One of the clearest and earliest examples can be found in Regulation 1612/68 on the free movement of workers, which defines the persons constituting the ‘family’ of a migrant worker. Various commentators have already noted the traditional, marriage-centred vision of the family constructed by Community legislation. This view has been further reinforced by the Court of Justice, which has generally declined opportunities to expand further the definition of the family. Despite this established status quo, the concept of the family in EC law is under renewed scrutiny. Two developments in particular are provoking the current debate: first, the legislative programme to construct the Area of Freedom, Security and Justice; and second, the proliferation of national family law reforms leading to the legal recognition of non-marital couples, including same-sex partners. This article commences by examining these driving forces in more detail. It then proceeds to consider the various ways in which same-sex partners are being recognized in the emerging Community law on asylum and immigration, as well as the proposed reforms to free movement law. As will be identified, the concept of the family