Legal fragmentation and family rights: intra-EU mobility challenges for LGBTQI+ families under the EU Blue Card scheme

Scherezade Maestre

Vialto Partners, London

schmaestre@gmail.com

Introduction

In 2009, the European Union ratified the original EU Blue Card Directive,[1] seeking to create a system that would attract the highly skilled workers who had predominantly been choosing other destinations, such as the United States or Canada. With no pan-European immigration options, this Directive[2] was a first step in offering facilitations for intra-EU mobility and consistency in the requirements Member States could impose.

Despite limited results, largely due to the existence of more attractive competing national schemes, and recognising that attracting and retaining talent remained a challenge, the European Union undertook a recast of the EU Blue Card Directive.[3] This process led to the adoption of a new Directive in 2021, introducing provisions aimed at enhancing the attractiveness of the permit.

Available in 25 of the 27 Member States (excluding Denmark and Ireland), an EU Blue Card gives highly qualified workers from outside the EU – and their families – the right to live and work in an EU country, provided certain criteria are met.

This article analyses two significant advantages offered by the EU Blue Card scheme to non-EU nationals and their families: simplified procedures for subsequent intra-EU mobility and enhanced rights to family reunification. It also examines how, in practice, these benefits remain limited for LGBTQI+ families due to the absence of a common recognition framework for non-heterosexual partnerships.

Family reunification in the EU

The rights to family reunification for eligible non-EU family members joining other non-EU nationals residing in the EU (excluding Denmark and Ireland, which opted out) on standard work and residence permits is governed primarily by the Family Reunification Directive.[4] However, how it is applied depends heavily on the host country’s national rules. The Directive only sets minimum standards for family reunification, and grants extensive freedom to the Member States in deciding how to implement them.

The eligible family members, at minimum, should be the spouse or registered partner, minor children (biological or adopted) and, under certain conditions, dependent adult children or parents – even though the latter group is severely restricted from applying in practice.

Some countries restrict reunification during the first period of the residence permit, especially if it is short-term or temporary. In fact, the Directive sets the possibility for Member States to implement a waiting period of up to two years before family members can even apply to be reunited; de facto requiring a quite long-term separation that severely affected EU attractiveness.

Finally, in many of the signatory countries, the dependent spouse or registered partner does not obtain authorisation to work, thus being unable to work in the country without going through their own work-sponsoring permit process.

In contrast, family dependents of an EU Blue Card holder benefit from enhanced family reunification rights thanks to the specific provisions in both the original Directive and the recast. For these family members, there are no applicable waiting times, and the authorities must accept a simultaneous application for the main permit and their family members, receiving residence permits linked to the main holder. Moreover, they benefit from accelerated processing times by which Member States must process applications within 90 days (or even 30 days under the recast Directive).

Importantly, EU Blue Card dependents are also automatically allowed to work or study in the host country, without additional work permits or enjoying simplified processes – such as only a labour market test in those countries that still require it to enter the workforce. As their permits are linked to those of the main holder, these family members can apply for long-term residence or even permanent status after a period of just five years.

Intra-EU mobility facilitations

Contrary to popular belief, the EU does not have any pan-European work or residence permits that grant an automatic right to work and live in all EU countries. Immigration competences are still governed by national legislation, with some harmonisation through directives such as the ones discussed in this article.

As a consequence, the standard process for non-EU nationals wishing to move, alone or with their families, to another Member State requires them to fulfil all criteria as per the new country’s legislation, obtain sponsorship, go through the necessary work and residence permit process and move to the new country on a blank slate – starting from zero in terms of time spent in the region for obtaining permanent residence or citizenship, employment benefits, social security and other benefits.

Conversely, the recast EU Blue Card Directive introduces important facilitations for intra-EU mobility, allowing EU Blue Card holders to move more easily between Member States. The premise is simple: once the Blue Card holder has resided for at least 12 months in the first Member State, they may move to a second Member State to take up highly skilled employment, subject to a simplified application procedure. This second application must be submitted within 30 days of entering the second Member State; the individual can start working immediately, even before the new application is approved.

The Directive encourages harmonisation across the EU by limiting national discretion in imposing overly burdensome administrative barriers. Member States may require proof of employment and qualifications, but they are generally not permitted to suspend access to the labour market during the processing of the second application. These provisions significantly enhance labour mobility for EU Blue Card holders and support the EU’s broader goals of talent retention by creating a more integrated and flexible internal labour market.

An important further facilitation under the recast Directive is the recognition of previous periods of legal residence in other Member States for the purposes of acquiring EU long-term resident status. EU Blue Card holders may accumulate periods of residence spent under the EU Blue Card scheme in different Member States, provided there are no interruptions exceeding 12 consecutive months and the total absence from EU territory does not exceed 18 months in total. This cumulative approach supports more flexible mobility without penalising individuals’ long-term integration prospects.

While citizenship acquisition remains under national competence, some Member States may also consider previous lawful residence in another EU Member State when assessing eligibility for naturalisation, thereby further incentivising intra-EU mobility for highly skilled migrants.

These benefits are also applicable for family members accompanying the main EU Blue Card holder under EU Blue Card dependent permits.

LGBTQI+ status quo in the EU

In terms of recognition of same-sex marriages and civil partnerships, the EU remains uneven and legally fragmented across Member States. As of 2025, 18 EU Member States fully recognise same-sex marriage, granting LGBTQI+ couples the same rights as opposite-sex couples. While some countries provide civil unions or registered partnerships for same-sex couples, often with limited rights compared to marriage, there is a final group of several EU countries that do not allow or legally recognise same-sex marriages or partnerships.[5]

Even though the Court of Justice of the European Union ruled in 2018[6] that EU countries must recognise same-sex spouses for the purpose of residence rights, this recognition technically applies only to freedom of movement, which is exclusively granted to EU nationals and their family members; hence, this does not concede residence rights to non-EU LGBTQI+ partners of non-EU nationals residing in the EU.

The European Parliament and European Commission have called multiple times for mutual recognition of same-sex marriages and families.[7] Nevertheless, since matters of family and civil law fall within the exclusive competence of the Member States, legislative reforms in this area remain contingent upon the sovereign will of national legislatures.

Implications for LGBTQI+ EU Blue Card Holders

Under the current legal framework, several factors may impede the effective access of LGBTQI+ applicants and their family members to the rights and facilitations provided by the EU Blue Card Directive. In general terms, LGBTQI+ individuals frequently experience a loss of family reunification rights when crossing internal EU borders, facing legal invisibility or disruption when trying to relocate between Member States.

A straightforward scenario would involve an EU Blue Card applicant wishing to reside in a Member State that recognises same-sex marriage, and who is lawfully married in their country of origin. In such cases, provided the relevant conditions are met, the applicant would be able to include their spouse in the application under terms equivalent those applicable to heterosexual couples. However, applicants who are unable to marry in their home country and must rely on proof of cohabitation, or who have entered into civil partnerships that may not be recognised as equivalent in the host Member State, will probably encounter significant barriers to including their partner in the main application.

In Member States that do not recognise LGBTQI+ family relationships, the principal EU Blue Card application may be approved, yet applications for dependent family members will probably be refused, as such relationships will not qualify under the transposition of the EU Blue Card based on national legislation.

While these issues are not unique to the EU Blue Card and can arise in the context of other residence and work permits, the specific benefits attached to the Blue Card are likewise undermined. Because the legal recognition of dependents varies across Member States, intra-EU mobility may result in previously eligible family members losing their status, rendering their residence permits non-transferable alongside that of the principal holder. Even if alternative non-dependent routes are pursued to accompany the main applicant to a second or subsequent Member State, such family members will no longer benefit from the Directive’s protections, and their previous residence periods will not be recognised.

Conclusions

The current limitations imposed by the lack of integration between family law and the legal pathways system significantly affect the ability of LGBTQI+ families to fully benefit from the protections and facilitations envisaged by the EU Blue Card Directive.

While current efforts under the EU Blue Card framework will probably succeed in attracting most applicants, the exercise of national competences in recognising family relationships, coupled with case law recognising only the right to freedom of movement, means that LGBTQI+ families continue to face a significant legal void. This gap effectively precludes many from benefitting from the Directive’s facilitations, thereby risking the loss of valuable talent that the EU seeks to attract.