Steve Peers

A recent Court of Justice of the European Union (CJEU) decision in the Singh case tackles a crucial question: what happens to a non-EU spouse’s residency rights when their EU citizen partner, who moved to another EU country, leaves that country after their marriage ends? This case highlights a conflict within the EU Citizens’ Directive, where rules concerning divorce and departure clash. Unfortunately, the court chose a simplistic interpretation, aligning with the Advocate-General’s prior suggestion. This analysis, therefore, builds upon earlier observations made about that opinion. Notably, similar issues are being examined in a pending UK case.

Background

EU law, specifically the Citizens’ Directive, allows EU citizens, under certain conditions, to relocate to other member states with their spouse and certain family members. But what happens when the marriage dissolves? The CJEU, since the Diatta case, has held that a ‘spouse’, even if separated, retains this status and associated residency rights until a divorce is finalized. Furthermore, since the Baumbast case, the court has affirmed that the children of EU workers, current or former, have educational rights in the host country, necessitating the continued residence of both the child and their non-EU custodial parent, even post-divorce.

The Citizens’ Directive also addresses other scenarios involving the dissolution of marriage between an EU citizen and a non-EU citizen where the EU citizen has moved to another member state. Article 12(2) safeguards the non-EU family’s residence rights in situations where the EU citizen passes away. Similarly, Article 12(3) provides for the continued residence of the non-EU family when the EU citizen dies or departs if there are children pursuing education. Article 13(2) specifically addresses residency rights for non-EU family members in cases of divorce or termination of registered partnerships. It offers four possibilities for retaining residency, including one where the relationship lasted at least three years, with one year in the host country, prior to initiating divorce or separation proceedings. However, complications arise within this five-year period before permanent residency is granted.

The Singh case, brought to the CJEU from Ireland, involves three divorcing couples who meet the criteria of Article 13(2) with one exception: the EU citizen left Ireland, leaving their non-EU spouse behind, before initiating divorce proceedings. The central question is: which rules apply in such situations involving both departure and divorce?

The judgment

The CJEU concluded that non-EU family members generally lose their right to reside within a member state as soon as the EU citizen departs. Consequently, Article 13(2) doesn’t protect the non-EU spouse unless divorce proceedings were initiated before the EU citizen’s departure, assuming the time-based criteria of Article 13(2) are also met. A later divorce petition cannot retroactively grant residency rights because Article 13 only addresses the “reviving” of rights. However, individual member states, like Ireland in this instance, can choose to be more lenient.

Unlike the Advocate-General, the court does not delve into the potential implications of the EU Charter of Fundamental Rights, nor does it offer commentary on Article 12 of the Directive, the concept of legal certainty, or alternative solutions like having the non-EU spouse accompany the EU citizen to a different member state.

The CJEU reiterates its previous stance that an EU citizen and their family maintain their free movement rights even if the EU citizen is not employed, as long as the non-EU spouse’s income provides ‘sufficient resources,’ highlighting that the EU citizen doesn’t need to be the sole provider.

Comments

This judgment is highly problematic. The court’s extremely literal interpretation of the relationship between departure and divorce within the EU Citizens’ Directive disregards the judgment’s broader implications and leads to unintended consequences.

The judgment hinges on a strict interpretation of Article 13(2)(a), even though the text doesn’t explicitly state that the EU citizen must remain in the host country when divorce proceedings begin. It only specifies the duration of the marriage, including time spent in the host country.

To assess if an EU citizen’s departure before divorce proceedings impacts the non-EU spouse’s rights, the court should have examined Article 12(3) which addresses EU citizens’ departure. However, this provision doesn’t definitively state that it provides an exhaustive list of situations where the non-EU spouse retains residency even after the EU citizen departs. Had the legislature intended to make divorce rules an exception in departure cases, it would have been stated explicitly. Furthermore, if Article 12(3) were the only basis for residency post-departure, its repetition of specific situations outlined in Article 13(2) would be unnecessary.

The ruling creates ambiguity regarding legal certainty. It may not always be clear if an EU citizen has permanently left. The opinion suggests an exception for cross-border separations, but how long in another member state constitutes ‘departure?’ What if they return? The lack of clarity places a burden of proof on either the authorities or the abandoned spouse.

It’s noteworthy that the other scenarios in Article 13(2) allowing non-EU citizens to retain residency post-divorce (child custody, access, domestic violence) lack this emphasis on the timing of the divorce proceedings. Does this mean that even in these difficult circumstances, the non-EU spouse loses their rights upon the EU citizen’s departure?

Importantly, the affected non-EU spouses may have other legal avenues within EU law. These could include refugee status, rights under the EU-Turkey association agreement (if applicable), or rights as long-term residents. The latter, however, wouldn’t apply in Ireland, the UK, or Denmark. Further rights exist if they are the primary caregiver for an EU citizen’s child or have secured permanent residency under EU directives.

The court’s decision creates a legal loophole where the non-EU spouse is incentivized to initiate divorce proceedings quickly before the EU citizen departs. While EU regulations grant jurisdiction for divorce proceedings to the member state where one or both spouses habitually reside, this term lacks a clear definition. This ambiguity might prevent the host state’s courts from having jurisdiction in some cases. It’s unreasonable to expect the non-EU spouse, potentially unaware of marital problems, to prioritize legal action over saving the marriage.

What should the court have decided? Admittedly, the Directive is unclear about the relationship between divorce and departure. However, the effectiveness of divorce regulations is significantly diminished if they become irrelevant simply because the EU citizen relocates, especially since EU law aims to facilitate such movement. A better solution would have been to clarify that Article 13(2) can grant residency if divorce proceedings commence within a reasonable timeframe after the EU citizen leaves. While this is open to interpretation, the Directive already contains numerous vague rules that necessitate case-by-case assessments. The court’s reliance on the undefined concept of ‘departure’ isn’t any clearer.

Picture credit: Telegraph

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