Steve Peers
EU freedom of movement laws don’t directly apply to non-EU citizens. Instead, they gain rights through family ties with EU citizens. This poses a problem in domestic violence situations where the abuser is an EU citizen and the victim is not. Leaving the abuser could lead to expulsion, forcing victims to choose between their safety and remaining in the country, potentially separated from their children.
EU law attempts to mitigate this risk. A long-standing position, established in the Diatta case, allows non-EU citizens to remain in the same country as their EU citizen spouse after separation, with their status changing only after divorce.
Post-divorce, the EU citizens’ Directive offers further protection. It allows non-EU citizens to generally remain if the marriage lasted three years, including one year in the host country. Other grounds for remaining include custody of children, visitation rights, or ‘particularly difficult circumstances,’ such as being a domestic violence victim during the marriage. In these situations, they can pursue permanent residency.
The recent NA judgment marks the first interpretation of the domestic violence provision by the Court of Justice. It follows the Singh case, which dealt with the general divorce rule. Both cases examined the impact of the EU citizen leaving the host country before divorce proceedings conclude, specifically if it instantly nullifies the non-EU citizen’s rights under the citizens’ Directive.
The Court unfortunately confirmed that it does, upholding the flawed reasoning from the Singh case. This interpretation disregards the social context of the domestic violence provision. While the victim in NA found protection through other EU laws, this isn’t guaranteed for everyone. The Court should reassess its stance, especially given the EU’s intention to sign the Istanbul Convention on violence against women.
The judgment
The case involved a Pakistani woman who immigrated to the UK with her German husband. This judgment holds implications for other Member States, although it wouldn’t apply to the UK if they left the EU without a free movement agreement. Her husband worked in the UK, and they had two German-citizen daughters. She left due to domestic violence, followed by her husband before divorce proceedings began. She subsequently applied for UK permanent residency.
The Court, based on its Singh precedent, ruled that her rights under the citizens’ Directive ceased when her husband left the UK, as divorce proceedings hadn’t started. It justified this based on the wording of the law, the ’exceptional’ nature of retaining residency rights without being a ‘family member’ of an EU citizen residing in the same Member State, and the ‘aims’ of the law.
Although lacking rights under the citizens’ Directive, the Court considered two other arguments for her stay. First, the Regulation on free movement of workers grants children of EU workers access to education, including the right to stay even if the worker leaves, extending to the caring parent. The Court confirmed this right applies even if the children began school after the worker’s departure, as long as they resided there while the parent worked in that Member State.
Secondly, the Court examined a two-part argument based on the EU Treaties. The first part, referencing the Ruiz Zambrano case, argued for a right to stay based on EU citizen children’s rights to not be deprived of their EU citizenship benefits. However, the Court deemed it inapplicable as it only functions as a safety net when no other EU legislation offers protection.
The second part invoked the general freedom of movement right for EU citizens. The Court ruled that this right is subordinate to secondary legislation. Under the citizens’ Directive, her EU citizen children could stay with ‘sufficient resources,’ potentially provided by a parent. This, based on precedents like Chen and Zhu, grants a corollary right for a parent to stay with them.
Comments
While Ms. NA could remain in the country, she may not receive permanent residency. This right typically applies to family members retaining residency under the citizens’ Directive after divorce. It’s unclear if it covers those residing as a corollary to their children under the Directive and doesn’t apply to those residing based on the free movement of workers Regulation, as per the Alarape judgment.
A significant concern is the possibility for Member States to expel domestic violence victims. Ms. NA’s right to stay stemmed from caring for her children, not her victim status. Childless victims lack this protection. Victims of self-employed spouses wouldn’t benefit from the free movement of workers Regulation (see the Czop judgment). The Court overlooked that her second child was born after her husband left, making the judgment unhelpful for victims whose children were abducted by the departing spouse or those lacking parental responsibility.
The Court’s logic is flawed. Firstly, separation doesn’t automatically override the divorce rule, as the EU legislature didn’t specify precedence. Secondly, extending residency rights to the (hopefully) few cases where an EU citizen, after committing domestic violence, leaves the country before divorce, wouldn’t drastically increase the number of non-EU citizens allowed to stay.
Thirdly, the Court’s interpretation of the EU legislation’s aims is illogical. While residency rights remain unaffected during ‘de facto’ separation if the EU citizen spouse stays, they disappear when the spouse leaves, contradicting the Court’s claim. The supposed ‘safeguards’ become necessary precisely when the EU citizen departs. The EU legislature likely didn’t intend to differentiate between threats of departure and divorce. It’s unreasonable to base our response to domestic violence on such a technicality.
The Advocate-General’s opinion supports this analysis, noting that the loss of residency status could be used to manipulate and instill fear in the victim. This interpretation could also hinder criminal proceedings and undermine the effectiveness of the victim’s derived right, contradicting the citizens’ Directive’s protective objective.
Two final points are crucial. Firstly, the Istanbul Convention, which the Commission proposes the EU sign, grants residency rights to domestic violence victims (Article 59) without considering the perpetrator’s location, a point absent in the Convention’s explanatory memorandum. This absence is logical, as the Convention, like the citizens’ Directive, aims to support the victim.
Secondly, consider the victim’s perspective. While initiating divorce proceedings before her husband left could have protected her status, she had just left a dangerous situation, pregnant and caring for an infant. She likely faced housing, financial, and employment challenges. On top of this, the Court allowed the Home Office to question her immigration status.
This judgment is regrettably one of the most disgraceful in the Court’s history. It warrants immediate reconsideration, especially if the EU ratifies the Istanbul Convention.
Barnard & Peers: chapter 13
JHA4: chapter I:6
Photo image: Telegraph.co.uk