In (di) visible Citizens(hip): Same-sex Partners in European Union Immigration Law

Abstract

This paper aims at highlighting the inadequacy of two draft European Directives on the family reunification of same-sex partners. These are the draft Directive on the free movement of citizens, which also applies to Union citizens residing in the Member State of their origin, and the draft Directive on family reunification, which applies to third-country nationals and refugees. In both instances, the category “family members” is defined in a sense wider than in existing law to include unmarried partners. This applies only, however, if the national law of the Member State concerned treats unmarried partners as being equal to married ones. Registered partners, a category comprising mainly same-sex partners, fall, either explicitly or implicitly, under the category “unmarried”. The draft Directives generate no harmonisation in these cases: they reinforce the principle of equal treatment between nationals and other EU citizens but allow for differentiated treatment in different Member States. Such a provision arguably constitutes a breach of the general principle of equality applicable in EC law, since it effectively confirms, multiplies and entrenches existing discrimination based on sex and sexual orientation at European level. It moreover undermines the objective of the draft Directives, namely, the free movement of people in a European area of freedom, security and justice. Under such a provision, European citizenship appears to supersede national barriers but to tolerate discrimination based on sex and sexuality. Homosexual and bisexual Europeans remain invisible in the law and European citizenship remains divisible when it comes to preferences related to the personal and intimate life of individuals.