Divorce and free movement law: a problematic CJEU judgment

Steve Peers

Yesterday’s CJEU ruling in Singh addresses an important issue: What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. Unfortunately the Court of Justice chose the simplistic approach to this issue, following its Advocate-General’s opinion. My comments below therefore are adapted from my earlier comments on that opinion. (Note that there is also a reference pending from the UK on these issues).

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbast that since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive (if the EU citizen has moved to another Member State). Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the criteria in Article 13(2) are met, except that the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and then initiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The judgment

The Court rules that in principle third-country national family members of an EU citizen who has moved to another Member State lose their right to reside there under the Directive as soon as the EU citizen moves out of that country. Therefore Article 13(2) does not protect them unless divorce proceedings have started before that EU citizen leaves (assuming that the waiting period condition set out in Article 13(2) has also been satisfied). The later divorce petition cannot revive the right of residence, since Article 13 talks only about ‘reviving’ rights. However, it is open to a Member State to be more generous if it wishes to, as Ireland was in this situation.

Unlike the Advocate-General, the Court doesn’t discuss the possible relevance of the EU Charter of Fundamental Rights. Nor does it comment on Article 12 of the Directive, or the principle of legal certainty, or suggest solving the problem by having the non-EU citizen accompany the EU spouse to another Member State.

Next, the Court reiterates prior case law that the EU citizen and his or her family still have rights under EU free movement law even if the EU citizen is not working but the non-EU spouse is, thereby providing ‘sufficient resources’ for the EU citizen, for the EU citizen doesn’t have to be the source of those resources himself or herself.

Comments

With great respect, this judgment is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Court to interpret the law in a way which fails to take account of the consequences of the judgment, and leads to results which were surely not intended by the EU legislature.

The starting point is the plain wording of Article 13(2)(a) of the Directive, which in no way states that the EU citizen has to be present in the host Member State when divorce proceedings begin. It only refers to the amount of time that the marriage has subsisted, including time in the host State.

To determine whether the departure of an EU citizen before those proceedings start means that the non-EU family member loses his or her rights, the Court should have interpreted Article 12(3), which specifically sets out rules on departure of EU citizens. However, that provision doesn’t suggest (by means of words like ‘only’ or ‘except where’) that it sets out an exhaustive list of cases where non-EU family members get to stay despite the EU citizen’s departure. Arguably, if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

The Court’s ruling creates problems for legal certainty, because it will not always be clear if an EU citizen has left the country. What if the marriage is initially intact despite a cross-border separation, (the opinion suggested an exception for such cases)? How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing? How can we be sure that the EU citizen is no longer in the host Member State? Who has the burden of proof in such cases – the host State’s authorities, or the family member who has been deserted?

It’s striking that for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Does the Singh ruling mean that even if these hardship cases, the third-country national family member loses rights as soon as the EU citizen has departed?

It should be noted that the third-country nationals concerned may have rights under other provisions of EU law, for instance if they are refugees, Turkish citizens covered by the EU association agreement with Turkey, or possibly long-term residents who could obtain rights under the EU long-term residents’ Directive by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. The latter Directive does not apply in Ireland (or the UK or Denmark), but could be relevant for people in the same position in other Member States. As noted above, they would also have rights if they are the carers of children of an EU citizen in the host State, or permanent residents under the EU Directive.

The Court’s ruling creates a ‘rush to court’ incentive for the non-EU spouse, who will need to bring divorce proceedings before the EU citizen leaves the country. The EU’s rules on civil jurisdiction in divorce cases give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  

So what should the Court have ruled? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce lose much of their effet utile if they cease to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The better way to reconcile the two sets of rules would have been to rule that Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Court’s approach of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: Telegraph

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Same-Sex Marriage: The EU is Lagging Behind

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

Last Friday, in its much-awaited ruling in Obergefell v. Hodges, the US Supreme Court held that same-sex couples derive from the US Constitution the fundamental right to marry and, for this reason, invalidated State laws which impose a ban on such marriages. The Supreme Court, also, held that marriages lawfully performed in one US State must be fully recognised in all other US States. This is, without a doubt, an historical ruling of immense symbolic and practical importance, since it means that allLGB US citizens are now able to marry a same-sex partner, and to be recognised, together with the latter, as a married couple everywhere in the US.

Given that the first country in the world that opened registered partnerships to same-sex couples was Denmark, in 1989, and that the first country that opened marriage to same-sex couples was the Netherlands, in 2001, one would have expected the EU to be a pioneer in matters regarding the legal recognition of same-sex relationships. Nonetheless, the EU’s stance on these matters and on the protection of the rights of same-sex couples remains disappointingly aloof.

This piece will focus on same-sex marriage and shall seek to examine the EU’s position towards a) same-sex marriage in situations confined within a single Member State; and b) the cross-border legal recognition of same-sex marriages (i.e. when EU citizens who are married to a person of the same sex move to another Member State).

Can the EU Require Member States to Open Marriage to Same-Sex Couples?

The answer is simple and it is ‘no’, at least as things stand at the moment. In its judgment in Römer, the Court stressed that ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. Moreover, the drafters of the EU Charter of Fundamental Rights seemed to share the same view, when in the Explanations Relating to the Charter of Fundamental Rights, it was pointed out that the Charter Article providing the right to marry (Article 9) ‘neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex’.

Because matters that fall within the ambit of family law are (usually) matters for which there is no European consensus and for which it is believed that each Member State should be left alone to make its own choices, family law is an area in which the EU has no competence to legislate. Thus, it is the Member States that can decide in situations that fall within their jurisdiction, who can marry whom, the requirements for divorce, adoption issues, the regulation of assisted reproduction, and any other issues falling within the ambit of family law. The legal recognition of same-sex relationships is no exception to this, and, hence, it is up to each Member State to decide whether it will allow in its territory two persons of the same sex to marry. This has resulted in an EU which is divided between the (mostly northern and western) Member States which have opened marriage to same-sex couples,[i]and the (mostly central and eastern) Member States which have not,[ii]with some Member States having a constitutional ban on opening marriage to same-sex couples.[iii]

Does the EU Require Member States to Recognise Same-Sex Marriages Lawfully Performed In Another Member State?

Even when the EU does not have the competence to make legislation in a certain area, this does not mean that the Member States have a carte blanche when exercising their powers in that field. This is because Member States must ensure that when they take action in an area which falls to be regulated exclusively by them, they comply with their obligations under EU law.

The next important question, therefore, is what happens to married same-sex couples comprised of (at least) one Union citizen, who move between Member States? If they move to a Member State which has not opened same-sex marriage to its own nationals, do they lose their status as a married couple and, with it, the automatic EU law right to move and reside to the host State together as a couple? Also, once they are within that State’s territory, are they not treated as a married couple for all legal purposes and, hence, are they refused benefits and advantages that are only available to married couples? Or does EU law require Member States which do not offer the option of marriage to same-sex couples in their own territory, to, nonetheless, recognise the status of same-sex couples who lawfully contracted their marriage in another Member State? The answer to this question is not entirely clear.

The reason behind this uncertainty is that the EU legislation which makes provision for the rights (including family reunification rights) of mobile Union citizens, uses the gender- and sexual orientation-neutral term ‘spouse’, without clarifying that this term – at least in this context – refers to both same-sex and opposite-sex spouses. This has proved problematic, because it has been read by some Member States as a licence to refuse to recognise same-sex marriages contracted in other Member States.

More specifically, Directive 2004/38, which lays down the conditions governing the exercise of the right of Union citizens and their family members to move and reside in the territory of another Member State, provides, in its Article 2(2)(a), that ‘family member’ for the purposes of this Directive means, inter alia, ‘the spouse’, and, thus, Union citizens can be accompanied or joined by their ‘spouse’ in the host Member State. One would have thought that a marriage – whether comprised of persons of the same or the opposite sex – lawfully contracted in a Member State, would be considered valid in all other Member States. After all, Recital 31 of the Directive, provides that ‘In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as … sexual orientation’. This, on its own, should suffice for making it clear to the Member States that when implementing the Directive, they must ensure that they do not act in a way which is (directly) discriminatory on the ground of sexual orientation, and, thus, just as they recognise (all) opposite-sex marriages lawfully performed in other Member States they must, also, recognise (all) such same-sex marriages.

In any event, refusing to an LGB Union citizen the right to be joined or accompanied in the host Member State by his or her same-sex spouse can, without a doubt, constitute an obstacle to that person’s fundamental right to move and reside in the territory of another Member State, which stems from the free movement provisions of the FEU Treaty. The rationale of the EU legislature – and the ECJ – for granting family reunification rights to mobile Union citizens, has always been that the refusal of such rights will give rise to a restriction on the exercise of free movement rights (Singh; Carpenter; Metock). It goes without saying that such a restriction will emerge, whether the spouse of a Union citizen is of the same or the opposite sex and hence it appears entirely arbitrary to treat same-sex couples differently from opposite-sex couples. Although the ECJ has not, yet, had the opportunity to rule on whether the refusal of the host State to admit within its territory the same-sex spouse of a mobile Union citizen amounts to a breach of the free movement provisions of the Treaty, a case is currently pending before it (Cocaj), where one of the questions referred is whether ‘registered partnerships’ under Article 2(2)(b) of Directive 2004/38, include same-sex registered partnerships.

 

Once it is found that the refusal to recognise same-sex marriages contracted in other Member States amounts to an obstacle to free movement, the onus will then fall on the recalcitrant Member State to justify its refusal. It seems, nonetheless, that it will be unable to rely on the public policy exception, which is one of the Treaty derogations from the free movement provisions, and this will be so for two reasons. Firstly, since it is engaging in a block refusal to recognise same-sex marriages contracted elsewhere, the requirement laid down in Article 27 of Directive 2004/38, that the measure which limits the exercise of free movement rights is based on the personal conduct of the individual concerned, will not be satisfied. Secondly, national measures can be justified under the Treaty derogations only if they are compatible with fundamental human rights protected under EU law (ERT) and, as will be explained below, a refusal to recognise same-sex marriages contracted in other Member States seems to amount to a breach of Article 21 of the EU Charter of Fundamental Rights and, in particular, the prohibition of discrimination on the ground of sexual orientation, and of the right to human dignity.

A restriction on the exercise of free movement rights is, also, likely to emerge from the simple fact that a same-sex married couple will lose its status or will have its status converted into a ‘lesser’ one (namely, registered partnership), something which will, obviously, have important (negative) implications once the couple is admitted into the territory of the host State. Apart from the hurt feelings and uncertainty that such a loss or ‘downgrading’ of status will cause, it shall, also, give rise to a substantial degree of (practical) inconvenience which, in turn, can lead to an obstacle to the exercise of free movement rights, since the couple – although lawfully married in another Member State – will not be entitled to benefits and advantages reserved to married couples.[iv] For instance, hospital visitation rights or pensions, and tax, social or other advantages, which, under national law, are only available to married couples, will not be granted to the spouses, since in the eyes of the law of the host State, they are not married.

Apart from Article 21 of the EU Charter of Fundamental Rights (see the analysis below) and/or the free movement provisions of the Treaty, some relief in this context can, also, be offered via Directive 2000/78, which prohibits discrimination on, inter alia, the ground of sexual orientation, in the areas of employment, occupation and vocational training. In particular – and applying in this context the principles established in case-law involving stagnant Union citizens (Maruko; Römer; Hay) – same-sex spouses who move to another Member State where they are ‘downgraded’ to registered partners, can rely on the Directive to require the host State to extend to them benefits reserved to opposite-sex spouses, provided that the benefits relate to employment, occupation or vocational training, and provided that the host State considers the two categories of couples (opposite-sex spouses and same-sex registered partners) to be in a comparable situation for the purposes of the claimed benefit. Nonetheless, this is, only, a partial solution to the problem, since it will not offer any remedy to same-sex spouses who move to Member States which do not grant any legal recognition to same-sex relationships or Member States which do not consider – for the specific benefit that is claimed or more generally – opposite-sex spouses to be in a comparable situation with same-sex registered partners. Furthermore, it will not offer any remedy in situations where the claimed benefit or advantage does not relate to employment, occupation or vocational training.

The refusal of the host Member State to recognise same-sex marriages contracted in other Member States of the EU is, also, in breach of fundamental (human) rights that are protected under the Charter and/or as general principles of EU law.

Article 21(1) of the Charter, provides that ‘Any discrimination based on any ground such as … sexual orientation shall be prohibited’. Since all Member States automatically recognise (opposite-sex) marriages contracted in other Member States, a refusal to recognise same-sex marriages, amounts to (direct) discrimination on the ground of sexual orientation. In its Article 51(1), the Charter provides that its provisions are addressed ‘to the Member States only when they are implementing Union law’. Recent ECJ rulings have interpreted this broadly, by noting that ‘The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’ (Fransson). Accordingly, it would seem that situations which involve measures that lead to an obstacle to the exercise of EU free movement rights can fall within the scope of the Charter. Union citizens can, therefore, rely on Article 21 of the Charter in order to require the Member State to which they move to recognise their same-sex marriage and to admit them within its territory and treat them as a married couple. Of course, Member States may wish to try to justify this instance of differential treatment (e.g. on the need to protect the traditional notion of marriage as a union between a man and a woman), but given that – as made clear in the ECHR context – only ‘particularly serious reasons’ can justify discrimination on the ground of sexual orientation (Dudgeon v. United Kingdom; Smith & Grady v. United Kingdom; Karner v. Austria), they will be faced with an uphill struggle, and, in practice, it is unlikely that they will be able to successfully rely on a justification.

Stripping a same-sex married couple of its legal status seems to be, also, a breach of the right to human dignity of the persons comprising it, which is protected under Article 1 of the Charter and which is, also, a general principle of EU law.[v]Forming intimate relationships with other individuals and choosing to formalise such relationships is an exercise of personal autonomy, which is an aspect of the dignity of every human being. The EU, by prohibiting discrimination on the ground of sexual orientation, (tacitly) admits the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When a Member State refuses to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, it treats such relationships differently from opposite-sex relationships and it treats them as inferior – and as not having the same moral worth – as the latter. Accordingly, it fails to respect the autonomy and dignity of the individuals who have formed and formalised such relationships. The right to human dignity appears, in fact, to have formed the backbone of the majority Opinion in Obergefell v. Hodges which, taking as its basis that ‘the right to personal choice regarding marriage is inherent in the concept of individual autonomy’ and that ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices’, concluded that the US Constitution should be read as granting to same-sex couples the fundamental right to marry in the same terms that this has always been granted to opposite-sex couples.

Accordingly, it is obvious from the above analysis that the refusal of the host Member State to recognise the same-sex marriages of mobile Union citizens, amounts to an unjustified breach of a number of fundamental rights (free movement and residence rights; non-discrimination on the ground of sexual orientation; human dignity) that these individuals derive from EU law.

Conclusion

As things stand, it is clear that the EU cannot require Member States to open marriage to same-sex couples. Nonetheless, a number of EU law provisions appear to require Member States to recognise same-sex marriages lawfully entered into in the territory of another Member State. Accordingly, Union citizens who move to another Member State should be allowed to be accompanied or joined there by their same-sex spouse andshould be treated as ‘spouses’, once they are admitted into the territory of the host State. Accordingly, the EU can no longer stand idle, turning a blind eye to the violation by some Member States of the fundamental rights of a segment of the EU population (i.e. the LGB population). The ECJ (when given the opportunity) and the EU legislature, should make it clear that EU Member States are required by EU law to recognise the same-sex marriages of mobile Union citizens, just as they do in situations involving Union citizens who are married to an opposite-sex partner.

Further Reading

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) Columbia Journal of European Law (forthcoming)

C. Casonato and A. Schuster (eds), ‘Rights on the Move: Rainbow Families in Europe: Proceedings of the Conference:  Trento, 16-17 October 2014’ available at http://eprints.biblio.unitn.it/4448/

D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014)

R. Wintemute and M. Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Hart, 2001)

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[i]  The Netherlands (2001), Belgium (2003), Spain (2005), Sweden (2009), Portugal (2010), Denmark (2012), France (2013), UK (2014) (apart from Northern Ireland), Luxembourg (2015), Finland (from 2017), Ireland (popular referendum yielded a positive result; awaiting for the law to be passed), Slovenia (proposal for same-sex marriage currently under discussion).

[ii]  Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Malta, Latvia, Lithuania, Poland, Romania, Slovakia. Some of these Member States (i.e. Austria, Croatia, Czech Republic, Estonia, Germany, Hungary, Malta), however, offer to same-sex couples the option of a registered partnership/cohabitation.

[iii]  Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Slovakia.

[iv]  A parallelism can be drawn here with ECJ case-law where it was held that the refusal to recognise a surname registered in another Member State or in accordance with the practice followed in another Member State leads to a substantial degree of inconvenience which, in its turn, can impede the exercise of free movement rights. See, most prominently, Case C-148/02 Garcia Avello ECLI:EU:C:2003:539 and Case C-353/06 Grunkin and Paul ECLI:EU:C:2008:559. This parallelism was first drawn in G. Biaggioni, ‘On Recognition of Foreign Same-Sex Marriages and Partnerships’ in D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014), 376-377.

[v] This right was, also, used by the Court (together with other the right to respect for private and family life protected under Article 7 of the Charter and Directive 2004/83) in order to limit the freedom of national authorities to use various practices when seeking to establish the sexual orientation of LGB asylum-seekers – see A., B, C case (for comments on the case see the piece by Steve Peers in this blog here). 

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Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

 

Steve Peers

What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately, this opinion is fundamentally flawed, and the Court of Justice should take an entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbastthat since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and theninitiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustivelist of cases where a non-EU family member can retain residence rights after an EU citizen leaves the host Member State (presumably leaving aside the Regulation on free movement of workers, which is only relevant when there are also children involved). Conversely, the Advocate-General believes that Article 13 ‘is intended, in principle, to apply only to cases where both spouses are still residing in the host State until the time of the divorce’. If the EU legislature had wanted to create an exception to the rules on departure for cases relating to divorce, it would have done so expressly.  So Article 13 can only apply where a divorce claim is made before the EU citizen leaves the host Member State. Articles 12 and 13 can only be applied together in the cases referred to in Article 12(3), ie where the EU citizen has departed and there are children in education. This analysis is supported for reasons of legal certainty: it cannot be clear when an EU citizen departs that a marriage will end in divorce or not.

Therefore, in the Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce proceedings, the non-EU citizen left behind loses the right to reside under EU law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member State, then Article 13(2) applies and the non-EU ex-spouses will retain a right to stay if they meet the other conditions set out there. She admits the inequity in distinguishing between these two cases. However, problems could be avoided if the non-EU citizen accompanied the EU citizen, or began divorce proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of the right to family life and private life referred to in Article 7 of the EU Charter of Fundamental Rights, since there is no family life to protect any longer in the case of a divorce. However, the Charter would protect the position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had moved to another Member State.

Finally, the opinion confirms prior case law to the effect that an EU citizen can also rely on resources provided by his or her non-EU family member in order to qualify for free movement rights.

Comments

With great respect, this opinion is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Advocate-General to suggest an interpretation which fails to take account of the consequences of her argument, and leads to results which were surely not intended by the EU legislature.

Let’s start with the purportedly literal interpretation of the Directive. In fact, there is nothing in the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate that it sets out an exhaustive list of cases where non-EU citizens get to stay despite the EU citizens’ departure. We can turn the Advocate-General’s argument on its head here: if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

As for the argument based on legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does not create any such certainty either. The Advocate-General herself argues for an exception where a marriage is intact despite a cross-border separation, but how can we know if that is the case?  How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing?

Furthermore, the substance of the Advocate-General’s own argument is legally unclear. She mostly refers generally to the departure on an EU citizen from a Member State taking precedence over the rules on divorce set out in Article 13(2). But at one point, she makes a distinction based on whether the divorce application was filed before or after the EU citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Anyway, her acceptance that the timing of the application for divorce might be relevant for the interpretation of the rules on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining a right of residence following the EU citizen’s departure.

What about the Advocate-General’s suggested solutions? It would be highly awkward, to say the least, to expect the estranged non-EU spouse to accompany his or her family member to another Member State, even though (according to the CJEU’s case law) they would not have to live under the same roof in that country. In any event, the family member would not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by EU free movement rules: the EEA states and Switzerland). And it would be outrageous to conclude that the estranged non-EU spouse should follow an EU citizen in domestic violence cases.

The Advocate-General doesn’t mention the possibility that the non-EU family member could obtain rights under the EU’s long-term residence Directive, by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. But not all non-EU citizens have had such a period of prior legal stay; and that Directive anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse bringing divorce proceedings first depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  Also, for the reasons already set out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would mean that bringing proceedings first could not benefit those with custody of children, access rights to children or domestic violence issues.

Finally, it should be noted that the Advocate-General’s interpretation of the EU Charter analysis is simply wrong: Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as regards family life, but also private life. This includes all the relationships which a foreigner has built up in a State, even if he or she no longer has family members there: see the Slivenko judgment, for instance.

So what is the correct approach to this issue? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: salon.com

Barnard & Peers: chapter 13

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Benefits for unemployed EU citizens: the CJEU may complicate David Cameron’s renegotiation strategy

 

Steve Peers

The issue of the free movement (or ‘immigration’) of EU citizens between Member States has become highly controversial politically, especially in the UK. In particular, their access to benefits remains highly contentious. The CJEU has the chance to clarify some key issues on this point, in the pending case of Alimanovic, in which an Advocate-General issued an opinion today.

Today’s opinion is not binding, so we must wait to see if the CJEU is willing to follow it. But if it does, the Court will complicate the Conservative party’s strategy to renegotiate the UK’s EU membership. Even if the result of the upcoming UK general election means that the Conservative party’s plans are moot, the judgment will still be relevant to the Labour party’s less far-reaching plans to restrict EU citizens’ access to benefits.

Background

The CJEU ruled in November 2014 in the well-known Dano judgment (discussed here) that unemployed EU citizens who moved to another Member State could not access social benefits there, if they were not looking for work. This ruling did not apply to other categories of unemployed EU citizens: those who moved to another Member State and were looking for work there, and those who had worked there already and become unemployed. Today’s opinion concerns both of these categories.

According to the EU citizens’ Directive,unemployed EU citizens looking for work in another Member State cannot obtain social assistance benefits from another Member State if they have not worked in that State. However, the case law of the CJEU states that those citizens can rely on the free movement of workers rules in the EU Treaty in order to claim benefits related to the labour market.

As for those EU citizens who have worked in that Member State and become unemployed, the Directive says that they retain worker status (and therefore access to benefits, including social assistance) if they have worked there more than one year. They also retain worker status if they have worked there for less than that period, although in that case they only keep that status for six months. However, again relying on the Treaty free movement rules, the CJEU has ruled that worker status can be retained in other cases too, for instance by women who have stopped work briefly due to maternity (see discussion here).

The Conservative party position is that EU citizens working in a Member State should have to wait four years to get access to tax credits, social housing and housing benefits, as well as no taxpayer support for job-seekers. As I discussed before, these are the first and eighth of Cameron’s nine objectives in the planned renegotiation of EU membership (in so far as it concerns ‘migration’ from the rest of the EU). The Labour party position is that EU citizens should have to wait two years for benefits.

The case concerns Swedish citizens (a mother and her children) who had lived in Germany before, left for a number of years, and then returned there. The mother and oldest child then worked in Germany briefly, but became unemployed. Do they have access to benefits?

The Opinion

The Advocate-General first clarifies that the benefits are social assistance, not labour-market related. So job-seekers in general do not have access to them; only former workers do. But as part of this analysis, he reaffirms the current rule that the Treaty gives job-seekers access to labour-market related benefits.

Then he examines whether people who become unemployed after short periods of work in a host Member State can be considered former workers – and therefore retain access to social assistance benefits – in cases besides those listed in the Directive. He argues that they can, in part on the basis of the EU Treaties, and that any Member State which refuses to extend such benefits to them automatically breaches EU law. Instead, a Member State must consider the benefit request on a case-by-case basis, assessing whether there is a sufficient link with the labour market of that State.

Comments

If it is followed by the CJEU, the Opinion makes both the Conservative and Labour plans to renegotiate UK membership as regards EU citizens’ access to benefits harder to achieve. The crucial point is the extent to which renegotiation concerns a Treaty amendment, which is far harder to achieve (unanimous agreement of all Member States, and national ratification) than an amendment to EU legislation, like the citizens’ Directive (qualified majority of Member States, proposal from Commission and agreement of European Parliament).

First of all, the Opinion reaffirms that the Treaty requires that all job-seekers get access to labour-market related benefits. So only a Treaty amendment could overturn that rule.

Secondly, the Opinion asserts that the Treaty requires that former workers might have access to benefits, on a case-by-case basis, if they have stopped work in circumstances other than those listed in the Directive. This goes further than the status quo, since the CJEU has only established this point as regards women interrupting work for maternity. The workers concerned have only been employed in Germany for short periods, well below the four-year waiting period that the Conservatives want, or even the two-year period that Labour supports.

It remains to be seen whether the Court will accept today’s opinion, or instead opt for a judgment that more obviously reflects the political sensitivities surrounding unemployed EU citizens’ access to benefits – as it plainly did in the Dano judgment.

 

Barnard & Peers: chapter 13

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The UK implements EU free movement law – in the style of Franz Kafka

 

Steve Peers

Most laws are complicated enough to start with, but with EU Directives there is an extra complication – the obligation to transpose them into national law. A case study in poor transposition is the UK’s implementation of the EU’s citizens’ Directive, which regulates many aspects of the movement of EU citizens and their family members between EU Member States. Unfortunately, that defective implementation is exacerbated by a further gap between the wording of this national law and its apparent application in practice, and by the unwillingness of the EU Commission to sue the UK (or other Member States) even for the most obvious breaches of the law.

It’s left to private individuals, who usually have limited means, to spend considerable time and money challenging the UK government in the national courts. One such case was the recent victory in McCarthy (discussed here), concerning short-term visits to the UK by EU citizens (including UK citizens living elsewhere in the EU) with third-country (ie, non-EU) family members.  The UK government has just amended the national rules implementing the EU citizens’ Directive (the ‘EEA Regulations’) to give effect to that judgment – but it has neglected to amend the rules relating to another important free movement issue.

Implementing the McCarthyjudgment

The citizens’ Directive provides that if EU citizens want to visit another Member State for a period of up to three months, they can do so with very few formalities. However, if those EU citizens are joined by a third-country family member, it’s possible that this family member will have to obtain a short-term visa for the purposes of the visit. The issue of who needs a short-term visa and who doesn’t is mostly left to national law in the case of people visiting the UK and Ireland, but it’s mostly fully harmonised as regards people visiting all the other Member States.

Although the EU’s citizens’ Directive does simplify the process of those family members obtaining a visa, it’s still a complication, and so the Directive goes further to facilitate free movement, by abolishing the visa requirement entirely in some cases. It provides that no visa can be demanded where the third-country family members have a ‘residence card’ issued by another EU Member State. According to the Directive, those residence cards have to be issued whenever an EU citizen with a third-country family member goes to live in another Member State – for instance, where a British man moves to Germany with his Indian wife. Conversely, though, they are not issued where an EU citizen has not left her own Member State – for instance, a British woman still living in the UK with her American wife.

How did the UK implement these rules? The main source of implementation is the EEA Regulations, which were first adopted in 2006, in order to give effect to the citizens’ Directive by the deadline of 30 April that year. Regulation 11 of these Regulation states that non-EU family members of EU citizens must be admitted to the UK if they have a passport, as well as an ‘EEA family permit, a residence card or a permanent residence card’. A residence card and permanent residence card are creations of the EU Directive, but an ‘EEA family permit’ is a creature of UK law.

While the wording of the Regulation appears to say that non-EU family members of EU citizens have a right of admission if they hold any of these three documents, the UK practice is more restrictive than the wording suggests. In practice, having a residence card was usually not enough to exempt those family members from a visa requirement to visit the UK, unless they alsoheld an EEA family permit. Regulation 12 (in its current form) says that the family member is entitled to an EEA family permit if they are either travelling to the UK or will be joining or accompanying an EU citizen there. In practice, the family permit is issued by UK consulates upon application, for renewable periods of six months. In many ways, it works in the same way as a visa requirement.

An amendment to the Regulations in 2013 provided that a person with a ‘qualifying EEA State residence card’ did not need a visa to visit the UK. But only residence cards issued by Germany and Estonia met this definition. This distinction was made because the UK was worried that some residence cards were issued without sufficient checks or safeguards for forgery, but Germany and Estonia had developed biometric cards that were less likely to be forged.

In the McCarthy judgment, the CJEU ruled that the UK rules breached the EU Directive, which provides for no such thing as an EEA family permit as a condition for admission of non-EU family members of EU citizens with residence cards to the territory of a Member State. The UK waited nearly three months after the judgment to amend the EEA Regulations to give effect to it.

The new amendments cover many issues, but to implement McCarthythey simply redefine a ‘qualifying EEA State residence card’ to include a residence card issued by any EU Member State, as well as any residence card issued by the broader group of countries applying the EEA treaty; this extends the rule to cards issued by Norway, Iceland and Liechtenstein. Presumably this brings the rules into compliance with EU law on this point (the new rules apply from April 6th). That means that non-EU family members of EU citizens will not need a visa to visit the UK from this point, provided that they hold a residence card issued in accordance with EU law, because they are the non-EU family member of an EU citizen who has moved to another Member State. However, this depends also on the practice of interpretation of the rules, including the guidance given to airline staff.

‘Surinder Singh’ cases

On the other hand, the new Regulations do not implement other recent CJEU case law (discussed here) on what is known in the UK as the ‘Surinder Singh’ route. This is based on CJEU rulings which state that an EU citizen who moves to another Member State with non-EU family members can then return to his or her home Member State and invoke EU free movement law to ensure that this State admits his or her family members. The purpose of doing this is to avoid very restrictive rules on the admission of family members of British citizens into the UK, which are much more stringent than the EU free movement rules (Danish and Dutch citizens also use these rules).

The 2013 amendments to the Regulations state that this route can only be used where the ‘centre of life’ of the family concerned has shifted to another Member State. This is inconsistent with last year’s CJEU ruling, which requires only a three-month move to another Member State to trigger the rules. In practice, this test is then applied before an ‘EEA family permit’ is issued to the family member concerned, which allows that family member to reside in the UK with the UK citizen.

Since these parts of the Regulations have not been amended, and there is still provision for an ‘EEA family permit’ in the Regulations, presumably the intention is to continue to apply these rules to regulate the longer-term stay of UK citizens’ family members using the Surinder Singh route.

Conclusion

The better course from the outset for the UK would have been to avoid the creation of the ‘EEA family permit’, which is not provided for in any EU legislation or hinted at in any CJEU case law. Furthermore, not only do the UK rules not implement EU law correctly, they also are not applied in practice exactly as they are written, but on the basis of a general unwritten understanding about what they actually mean. This doesn’t even deserve to be called a ‘policy’. Instead, the best description comes from Yes, Minister: it’s the ‘policy of the administration of policy’.  

 

Barnard & Peers: chapter 13

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