Monday, 21 July 2014

Family Reunion for EU Citizens: a separated third country national family member of an EU citizen can acquire permanent residence status

Chiara Berneri, Lecturer at BPP Law School

Article 16(2) of Directive 2004/38 (the EU citizens’ Directive) states that third country national family members of EU citizens who have moved to another Member State can claim permanent residence rights (giving greater protection against expulsion, for instance if they claim social benefits) if they have ‘legally resided with’ that EU citizen ‘for a continuous period of five years’. Can they still invoke that provision, when, before the expiry of the five years’ period, the couple decided to live apart and cohabitate with different partners? Furthermore, can the third country national claim this right despite the fact that the continuous period of five years occurred before the transposition of the Directive?

The Court of Justice gave an answer to these crucial questions in a judgment of 10 July, Case C-244/13, Ogieriakhi v Minister for Justice and Equality.

The facts

In May 1999 Mr Ogieriakhi, a Nigerian national, married Ms George, a French national living in Ireland. From 1999 till 2001 the two lived together in Ireland. In August 2011 Ms George moved out and begun to reside with another man. Soon after Mr Ogieriakhi started to reside with Ms Madden, an Irish citizen with whom, after a while, he had a child. The divorce between Mr Ogieriakhi and Ms George occurred in January 2009 and in July of the same year Mr Ogieriakhi and Ms George got married. The issue Mr Ogieriakhi is complaining about goes back to 2007 when, after the deadline for transposition of Directive 2004/38 into national law (which was 30 April 2006), he applied for permanent residence in Ireland on the ground that he had completed a continuous period of legal residence for five years (between 1999 and 2004) as a result of his marriage with Ms George.

The Irish Minister for Justice and Equality refused his application on the ground that he did not exercise his right of residence under the Directive because there was no evidence of the fact that during the relevant period his wife was still exercising her right of movement and residence in Ireland. As a result of this refusal Mr Ogieriakhi was dismissed from his job because, according to the authorities, he had not any right of residence in Ireland. However, in 2011, the Minister for Justice and Equality reviewed its decision of 2007 and granted him a right of permanent residence following the Lassal judgment (according to which residency prior 2006 may, in principle, be regarded as meeting the criterion of a continuous period of residence of five years).

At this stage Mr Ogieriakhi brought an action for damages before the High Court in order to obtain compensation for the damage he suffered (dismissal from his job) as a result of the failure to transpose the Directive (relying on the case of Francovich and others). The national court found that, in order to succeed in the action, Mr Ogieriakhi had to show that at the time of his dismissal from his job he enjoyed a right of residence for a continuous period of five years. In order to assess whether this was the case, the national court stayed proceeding and asked the Court of Justice whether Art 16(2) of the Directive had to be interpreted as meaning that a third country national who, during the a continuous period of five years before the transposition date for the Directive, resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded a having acquired a right of permanent residence even though, during that period, the EU spouse decided to reside with another person and did not provide anymore the home in which the third country national lived.

The Court’s judgment

The Court started its reasoning by looking at Art 16(2) of Directive 2004/38. It pointed out that the current interpretation that should be applied to this article, following the Lassal judgment, is that the continuous periods of five years must be taken into account even when accumulated before the transposition of the Directive, when in accordance to the earlier law instruments that the Directive itself “codified, revised and repealed”.  In other words, in order to being able to rely on Art 16(2) for continuous residence accrued before the transposition of the Directive, the third country national has to satisfy both the conditions laid down in Art 16(2) of the Directive and the conditions laid down in the piece of legislation in force – in this case Regulation 1612/68 on the free movement of workers - during the period in which the actual residence occurred. 

According to this preamble, the Court first started to look at whether the conditions under the Directive were fulfilled. It pointed out that the acquisition of a right of permanent residence by third country national EU family members depends a) on the fact that the Union citizen himself or herself satisfies the conditions laid down in Art 16(1) of the Directive (namely having resided for a continuous period of five years in the host Member State) and b) on the fact that the third country national family member has resided with him or her for the above period. According to the Court requirement a) was indisputably satisfied as it was proved that throughout the relevant period Ms George fulfilled the condition laid down in Art 16(1).

As far as requirement b) was concerned, the Court found that the relevant issue to assess was whether the separation of the spouses during the period concerned precluded the fulfilment of the condition. To give an answer to this point, the Court relied on the cases of Diatta and Iida, which stated that what matters is the existence of the marital relationship, even if the spouses are separated. In this case, although Ms George and Mr Ogieriakhi lived separately with different partners, they were still married during the relevant period from 11 October 1999 and 11 October 2004 and that was enough to comply with Art 16(2) and not to make Mr Ogieriakhi lose his status of family member accompanying or joining a EU citizen in the host Member State.

Following the opinion of A.G. Bot, the Court stressed also another interesting point supporting its argument. The Court pointed out that interpreting Art 16(2) as being fulfilled even when the EU and third country national spouses are still married but live with other partners is consistent with the scope of the Directive itself. As a matter of fact, a more restrictive interpretation of Art 16(2) would not be consistent with Art 13 and 18 of the same Directive, which grant more favourable residence rights to third country nationals who divorced from their EU citizen spouses (Art 13 is about retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. See in particular the conditions laid down by Art 13(2)(a)(b)(c)(d). Art 18 states that the family members to whom the conditions of Art 13(2) apply shall acquire the right of permanent residence after residing for five consecutive years in the host Member State).

Finally, the Court moved on to evaluate whether the conditions laid down in Regulation 1612/68 were fulfilled. In particular, the Court looked at whether the condition imposed by Art 10(3) – the EU worker having available for his or her family a family housing considered as normal for any worker employed in the same region- is satisfied in case the EU worker and the third country national family member live separately and the new house of the latter is neither supplied nor provided for by the EU worker (note that the citizens’ Directive has since removed this condition). To answer this question the Court followed the Advocate General’s opinion and relied on the Diatta case, once again specifying that there is no implied requirement for the family to live permanently under the same roof. 

Furthermore, still in line with A.G. Bot, the Court referred to the case of Commission v Germany (which had interpreted Article 10(3) of that Regulation) and recalled that the requirement to have available housing regarded as normal applies only as a condition under which each member of the worker’s family is permitted to come and live with him or her. This means, as A.G. Bot explained more extensively in the opinion, that if the housing regarded as normal at the beginning of the cohabitation does not fulfil this requirement anymore as a result of a new event- such as in this case the separation of the couple and the new relationship of Ms George with another man- this cannot lead to discrimination between Member State’s nationals and nationals of other Member States.

In light of these considerations the Court concluded that even when the spouses decided to separate and reside with new partners, the third country national family member who has resided for a continuous period of five years in a Member State as the spouse of a EU citizen can acquire the right of permanent residence even if the period of residence occurred before the transposition of the Directive.

Finally, on state liability, the Court concluded that the simple question for preliminary ruling on a matter concerning the transposition of EU law must not, alone, be considered a decisive factor in determining whether there was an obvious infringement of EU law on the part of the Member State.


If we look at its outcome, this can be considered a good judgment. As a matter of fact, the Court of Justice ended up clarifying the scope of Diatta by specifying that a third country national can be granted the right of permanent residence not just simply when he is separated and not living anymore with the EU citizen but even when they both cohabit with other partners. The broadening of Diatta can only be welcomed, especially by those who believe that the state should not be interested in how a family decides to arrange its family life (for example whether they prefer to live together or not) as long as the marriage bond is not broken. Although the Court referred back to spouses who were separated before the deadline to transpose the citizens’ Directive, its interpretation is still relevant to those who were separated after that deadline, in light of its reference to the Iida judgment (which had already applied the Diatta judgment to the definition of ‘spouse’ in the citizens’ Directive) and its constant case law (see the Metock judgment) insisting that the Directive does not lower standards as compared to the previous legislation.

On the other side, the reasoning proposed by the Court lacks of clarity in some points. This is particularly evident when the Court refers to Commission v Germany. The wording of the Court does not immediately make clear the reason why this case is relevant in this context. As a matter of fact, it is by looking at the more extensive explanation of the Advocate General that it is possible to understand its relevance in the circumstances at stake (see the above discussion).

It is also worth mentioning that the Court lost a chance to specify clearly the meaning of Art 16(2) of the Directive, particularly with regard to the word “with”. According to the Advocate General the word “with” should not be interpreted literally. Hence, it does not mean that the third country national must have lived together with the EU citizen for the entire period of five years but it is enough that he or she has accompanied or joined the EU citizen in the host Member State, despite the fact that they decided [not?] to live together for the entire period of five years. This specification would have been particularly useful if we consider that cases not necessarily involving third country national spouses will be possibly referred to the Court of Justice.

As a matter of fact, as things stand now, the Court will be easily able to rely on Diatta, if needed, to state that a spouse should not necessarily live together with the EU citizen in order to acquire the right of permanent residence. However, as far as other family members are concerned, a similar interpretation of Art 16(2) will result in the same outcome: no family member has to live together with the EU citizen in order to acquire the right of permanent residence in the host Member State.

To conclude, despite these margins for improvement, this judgment should be considered a good and, in a way, totally predictable judgment as it falls within the lines traced already by the Court in Lassal, Diatta and Commission v Germany. The interesting rationale upon which Ogieriakhi is based is, as A.G. Bot clearly pointed out in the opinion, to promote social cohesion and integration not just of the EU citizen but also of the third country national family member. This is the key purpose of the Directive that the Court should bear in mind for future reference in order to apply the same rationale to potential similar cases.

Barnard & Peers: chapter 13 


  1. Dear Bernard & Peers,

    It was a pleasure to read through your commentary . I have a very interesting question for you. If you read through paragraph 23 of Advocate General BOT's opinion and paragraph 26 of the judgment of the Court in the above Ogieriakhi case. What is your position in respect of the claims for compensation. It would appear that the referring court has found that if it is established that Mr. Ogieriakhi has the right of permanent residence his claims will succeed. Can is claims not now succeed because the breach is not sufficiently serious which will infringe the judgment of the Court and indeed opinion of the AG. Would you agree that any contest over whether this claim will succeed or not is settled?. Can the Irish State continue to argue after this judgment that the breach is not sufficiently serious?

    Thank you very much again for the commentary.


    Ewaen Fred Ogieriakhi: Dip. S.W., LL.B(Hons)(OU)., LL.B(Hons)(DIT).,PgDip. Law.,M.A.L., Ph.D. Law (Candidate, TCD)(The Applicant in the above case)

    1. Sorry, I should have answered before. I think that the right to acquire permanent residence is clear enough from the legislation, and the position of separated couples is clear from long-established case law, so as to constitute a sufficiently serious breach. Of course, we now have a judgment from the Irish High Court - the subject of a later blog post from January 2015.