Steve Peers
A complex situation arises when an EU citizen, residing in another Member State, divorces a non-EU spouse after the EU citizen has left that Member State. The EU Citizens’ Directive provides rules for divorce and departure, but these rules seem contradictory. An Advocate-General’s opinion in the significant Singh case tackles these issues, as does a pending reference from the UK. However, this opinion is fundamentally flawed, and the Court of Justice should consider a different approach.
Background
The EU Citizens’ Directive allows EU citizens to reside in another Member State with their spouse and specified family members, subject to conditions. However, the situation becomes complicated if the marriage dissolves. According to the Court of Justice of the European Union (CJEU), a “spouse” retains this status and derived free movement rights, even if separated, until the divorce is finalized. Subsequent case law established that a non-EU parent caring for the child of an EU worker (current or former) has the right to remain in the Member State to facilitate the child’s access to education, as per the Regulation on free movement of workers, even after divorcing the EU citizen.
The Citizens’ Directive addresses other scenarios involving the dissolution of marriage between an EU and non-EU citizen. Article 12(2) allows the non-EU spouse to retain residence rights in certain circumstances following the EU citizen’s death. Article 12(3) grants similar rights if the EU citizen dies or leaves the host Member State, leaving behind children pursuing education. Article 13(2) outlines the right of residence for non-EU spouses in case of divorce or termination of a registered partnership. It presents four scenarios where residence rights can be retained, one being a marriage or partnership lasting at least three years, including one year in the host Member State, before divorce proceedings commence. Complications arise during the period preceding the acquisition of permanent residence status after five years.
The Singh case, referred from Irish courts, involves three divorcing couples where the EU citizen left Ireland, leaving their non-EU spouse behind, and subsequently initiated divorce proceedings. This raises the question of which rules apply when both departure and divorce are factors.
The opinion
The Advocate-General argues that Article 12(3) provides an exhaustive list of situations where a non-EU family member can retain residence rights after the EU citizen departs the host Member State, excluding cases covered by the Regulation on free movement of workers involving children. They suggest that Article 13 primarily applies when both spouses reside in the host State until divorce. Had the EU legislature intended an exception for divorce cases related to departure, it would have explicitly stated so. Consequently, Article 13 only applies if the divorce claim precedes the EU citizen’s departure. Articles 12 and 13 can only be jointly applied in cases mentioned in Article 12(3), where the EU citizen has departed, leaving behind children in education. This analysis is supported by the principle of legal certainty, as it is uncertain whether a marriage will end in divorce when an EU citizen departs.
The Advocate-General believes that once an EU citizen leaves a Member State without initiating divorce proceedings, the non-EU spouse loses their right to reside under EU law. Conversely, if divorce proceedings begin before the EU citizen departs, Article 13(2) applies, allowing the non-EU ex-spouse to remain if they meet the specified conditions. The opinion acknowledges the disparity between these situations but suggests that problems could be avoided if the non-EU spouse either accompanied the EU citizen or initiated divorce proceedings before the EU citizen’s departure.
The opinion dismisses the relevance of the right to family and private life under Article 7 of the EU Charter of Fundamental Rights, arguing that there is no family life to protect after divorce. However, it acknowledges that the Charter would protect a non-EU spouse in an “intact” marriage with an EU citizen residing in another Member State.
Finally, the opinion reaffirms existing case law stating that an EU citizen can rely on their non-EU family member’s resources to qualify for free movement rights.
Comments
The opinion presents significant issues due to its overly literal interpretation of the relationship between departure and divorce rules within the EU Citizens’ Directive. This leads to an interpretation that disregards the broader implications of its argument, resulting in outcomes unlikely to have been intended by the EU legislature.
Firstly, the literal interpretation of the Directive is debatable. Article 12(3) does not explicitly state that it provides an exhaustive list of cases where non-EU citizens can remain after the EU citizen’s departure. One could argue that if the EU legislature wanted to make an exception to the divorce rules in cases of departure, it would have done so explicitly. Additionally, two out of four grounds for retaining residence after divorce (child custody and access) often overlap with the grounds for remaining after departure in Article 12(3), making the reference to these cases in Article 13(2) somewhat redundant if Article 12(3) were the sole basis for remaining after departure.
The argument for legal certainty based on the “departure” of an EU citizen is also flawed. The Advocate-General proposes an exception for intact marriages despite cross-border separation, but it remains unclear how to determine such a situation or define the duration required to constitute “departure.” Issues arise regarding the EU citizen’s potential return, temporary absences, or disappearance.
The Advocate-General’s argument itself lacks legal clarity. It primarily emphasizes the precedence of an EU citizen’s departure over the divorce rules in Article 13(2) but then distinguishes based on whether the divorce application was filed before or after the EU citizen’s departure. This distinction is crucial, as the other three categories for retaining residence rights after divorce (child custody, child access, domestic violence) do not mention the timing of divorce proceedings. Furthermore, acknowledging the relevance of the divorce application timing for departure rules undermines the argument that Article 12(3) is the sole basis for non-EU citizens to retain residence rights after the EU citizen departs.
The suggested solutions are equally problematic. Expecting an estranged non-EU spouse to accompany their EU spouse to another Member State, even if not required to live together, is unreasonable, especially as EU law doesn’t grant them the right to accompany the EU citizen to a non-EEA country or Switzerland. In cases involving domestic violence, such an expectation would be highly inappropriate.
The opinion overlooks the possibility of the non-EU spouse obtaining rights under the EU’s long-term residence Directive by combining previous legal stay periods with the time spent as a family member of an EU citizen. However, this option is not available to all non-EU citizens and does not apply to the UK, Ireland, and Denmark.
Whether the non-EU spouse can initiate divorce proceedings first depends on the interpretation of EU rules on civil jurisdiction, which grant jurisdiction to the courts where one or both spouses are “habitually resident.” This term lacks a clear definition in the Regulation, potentially excluding the host State courts from having jurisdiction in some cases. Moreover, expecting the non-EU spouse to prioritize divorce proceedings over attempting to salvage the marriage is unreasonable, especially if unaware of existing marital issues. Logically, this option should only apply when the Directive refers to initiating divorce proceedings, which would exclude those with child custody, access rights, or domestic violence concerns from benefiting from initiating proceedings first.
Lastly, the Advocate-General’s interpretation of the EU Charter analysis is inaccurate. Article 7 encompasses both family life and private life, including relationships established by foreigners in a State, even without family ties, as per the Slivenko judgment.
Therefore, the most suitable approach to reconciling the unclear relationship between divorce and departure in the Directive is to allow Article 13(2) to grant residence rights if a divorce application is lodged within a reasonable period after the EU citizen’s departure. This approach, though admittedly vague, aligns with the Directive’s purpose of promoting free movement. The Directive contains other vague rules, such as assessing the prospect of finding employment or evaluating cases involving criminal convictions or social assistance applications. Relying on the ambiguous concept of “departure,” as suggested by the Advocate-General, offers no greater precision.
Picture credit: salon.com
Barnard & Peers: chapter 13