Chiara Berneri, Lecturer at BPP Law School
Article 16(2) of the EU citizens’ Directive (Directive 2004/38) outlines that non-EU family members of EU citizens residing in another EU country can obtain permanent residency, which provides stronger protection against deportation, if they have lived legally with the EU citizen continuously for five years. This article examines whether this right applies if the couple separates and enters new relationships before the five-year period ends. It also questions if this right is valid even if the five-year period occurred before the Directive’s transposition into national law. These questions were addressed in the Court of Justice case C-244/13, Ogieriakhi v Minister for Justice and Equality, on July 10th.
Case Background
Mr. Ogieriakhi, a Nigerian citizen, married Ms. George, a French citizen residing in Ireland, in May 1999. They lived together in Ireland until 2001. In August 2011, Ms. George moved out to live with a new partner. Subsequently, Mr. Ogieriakhi began living with Ms. Madden, an Irish citizen, and they had a child. Mr. Ogieriakhi and Ms. George divorced in January 2009 and remarried in July of the same year.
The central issue arose in 2007 when Mr. Ogieriakhi applied for permanent residency in Ireland. He based his application on his five-year legal residency, from 1999 to 2004, due to his marriage to Ms. George. This application occurred after the April 30, 2006 deadline for Ireland to incorporate Directive 2004/38 into its national law. The Irish Minister for Justice and Equality rejected his application, arguing that Mr. Ogieriakhi’s residency was not under the Directive’s scope as there was no proof that Ms. George was exercising her right to live and work in Ireland during that period. As a result of this refusal, Mr. Ogieriakhi was dismissed from his job, as authorities deemed his residency in Ireland invalid.
However, in 2011, the Minister for Justice and Equality reconsidered the 2007 decision and granted Mr. Ogieriakhi permanent residency, citing the Lassal judgment. This judgment determined that residency before 2006 could, in principle, satisfy the five-year continuous residency requirement. Subsequently, Mr. Ogieriakhi sued the Irish government for damages in the High Court. He argued that his dismissal resulted from Ireland’s delayed enactment of the Directive and sought compensation based on the Francovich case and similar precedents.
The High Court stated that for Mr. Ogieriakhi’s claim to succeed, he needed to demonstrate that he had a valid right to reside in Ireland for five continuous years when he was dismissed. To ascertain this, the court requested clarification from the Court of Justice on Article 16(2) of the Directive. Specifically, they questioned if a non-EU citizen who resided in a Member State for five years prior to the Directive’s enactment, as the spouse of an EU citizen employed in that state, had acquired residency rights even if, during that time, the EU spouse had chosen to reside with another person and no longer provided the non-EU citizen’s housing.
Court of Justice Decision
The Court started by examining Article 16(2) of Directive 2004/38. Citing the Lassal judgment, the Court stated that the required five years of continuous residency could include time accrued before the Directive’s transposition. This is permissible as long as the residency aligns with previous legal frameworks that the Directive later “codified, revised and repealed”. Essentially, to use Article 16(2) for residency established before the Directive’s enactment, the non-EU citizen needs to meet the conditions outlined in both Article 16(2) and the legal framework applicable during the actual residency period – in this case, Regulation 1612/68 concerning the free movement of workers.
The Court then assessed whether the Directive’s conditions were met. They highlighted that permanent residency for non-EU family members relies on two conditions: (a) the EU citizen themselves must fulfill the criteria in Article 16(1) – residing continuously for five years in the host country, and (b) the non-EU family member must have lived with the EU citizen for the same period. The Court confirmed that condition (a) was undoubtedly satisfied, as Ms. George had demonstrably met the Article 16(1) criteria throughout the period in question.
Regarding condition (b), the Court needed to determine if the couple’s separation during the relevant period prevented this condition from being met. To address this, the Court referenced the Diatta and Iida cases, which established that the existence of a marital relationship is paramount, even if spouses are separated. Although Ms. George and Mr. Ogieriakhi resided separately with new partners, they were married from October 11, 1999, to October 11, 2004. This satisfied Article 16(2) and maintained Mr. Ogieriakhi’s status as a family member accompanying an EU citizen in the host country.
Following Advocate General Bot’s opinion, the Court emphasized another point supporting its position. They argued that interpreting Article 16(2) as fulfilled even when married couples live with other partners aligns with the Directive’s overall objective. A stricter interpretation would contradict Articles 13 and 18, which provide more favorable residency rights to non-EU nationals divorced from their EU spouses.
Next, the Court evaluated whether the requirements outlined in Regulation 1612/68 were met, particularly if the condition under Article 10(3) - the EU worker having adequate family housing - was satisfied when the EU citizen and non-EU family member were living separately. This is relevant because, in this case, the non-EU family member’s new residence wasn’t provided or supported by the EU citizen. It’s important to note that the citizens’ Directive has since removed this condition. The Court, agreeing with the Advocate General, referred to the Diatta case to clarify that there is no requirement for families to live under one roof.
In line with A.G. Bot, the Court then brought up Commission v Germany, a case concerning Article 10(3) of the Regulation. They reiterated that the requirement of suitable housing solely applies to situations where a worker’s family members initially join them in the host country. As A.G. Bot clarified, if the housing considered acceptable at the beginning of cohabitation no longer meets the requirement due to unforeseen circumstances – like the couple’s separation – it shouldn’t lead to discrimination between citizens of different Member States.
Therefore, the Court concluded that even with a separation and new partners, a non-EU citizen who resided as the spouse of an EU citizen for a continuous five years can obtain permanent residency, even if the residency period predates the Directive’s transposition.
Finally, concerning state liability, the Court stated that a preliminary ruling request about EU law transposition, on its own, isn’t sufficient to determine a clear violation of EU law by the Member State.
Analysis
This is a positive ruling. The Court clarified the scope of the Diatta case, determining that a non-EU citizen can be granted permanent residency even when separated from their EU spouse and living with new partners. The broadened interpretation of Diatta is beneficial, particularly for those who believe the state shouldn’t interfere in family matters like living arrangements, as long as the marriage remains valid. Although the Court referred to separations before the Directive’s transposition deadline, the interpretation remains relevant for those who separated afterward due to its reference to the Iida judgment and established case law, including the Metock judgment. These emphasize that the Directive doesn’t weaken standards compared to previous legislation.
However, the Court’s reasoning is sometimes unclear. This is evident when referencing Commission v Germany, as the connection to the current case isn’t immediately apparent. The Advocate General’s explanation provides better clarity.
Furthermore, the Court missed the opportunity to clarify the meaning of “with” in Article 16(2). The Advocate General suggests “with” shouldn’t be interpreted literally, implying the non-EU citizen needn’t have lived with the EU citizen for the entire five years. Being present in the host country with the EU citizen, even without cohabiting for the full duration, is sufficient. This clarification would have been valuable, as the Court will likely encounter cases not involving spouses.
Currently, the Court can readily use Diatta to assert that cohabitation isn’t mandatory for spouses to acquire permanent residency. However, applying a similar interpretation of Article 16(2) to other family members could imply that no family member needs to live with the EU citizen to gain residency.
Despite room for improvement, this ruling is positive and predictable, aligning with precedents set in Lassal, Diatta, and Commission v Germany. As A.G. Bot highlighted, the underlying principle in Ogieriakhi is promoting social cohesion and integration for both the EU citizen and their non-EU family members. This essential Directive objective should guide the Court in future similar cases.
Barnard & Peers: chapter 13