Divorce and free movement law: a problematic CJEU judgment

Steve Peers

Yesterday’s CJEU ruling in Singh addresses an important issue: What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. Unfortunately the Court of Justice chose the simplistic approach to this issue, following its Advocate-General’s opinion. My comments below therefore are adapted from my earlier comments on that opinion. (Note that there is also a reference pending from the UK on these issues).

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbast that since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive (if the EU citizen has moved to another Member State). Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the criteria in Article 13(2) are met, except that the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and then initiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The judgment

The Court rules that in principle third-country national family members of an EU citizen who has moved to another Member State lose their right to reside there under the Directive as soon as the EU citizen moves out of that country. Therefore Article 13(2) does not protect them unless divorce proceedings have started before that EU citizen leaves (assuming that the waiting period condition set out in Article 13(2) has also been satisfied). The later divorce petition cannot revive the right of residence, since Article 13 talks only about ‘reviving’ rights. However, it is open to a Member State to be more generous if it wishes to, as Ireland was in this situation.

Unlike the Advocate-General, the Court doesn’t discuss the possible relevance of the EU Charter of Fundamental Rights. Nor does it comment on Article 12 of the Directive, or the principle of legal certainty, or suggest solving the problem by having the non-EU citizen accompany the EU spouse to another Member State.

Next, the Court reiterates prior case law that the EU citizen and his or her family still have rights under EU free movement law even if the EU citizen is not working but the non-EU spouse is, thereby providing ‘sufficient resources’ for the EU citizen, for the EU citizen doesn’t have to be the source of those resources himself or herself.

Comments

With great respect, this judgment is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Court to interpret the law in a way which fails to take account of the consequences of the judgment, and leads to results which were surely not intended by the EU legislature.

The starting point is the plain wording of Article 13(2)(a) of the Directive, which in no way states that the EU citizen has to be present in the host Member State when divorce proceedings begin. It only refers to the amount of time that the marriage has subsisted, including time in the host State.

To determine whether the departure of an EU citizen before those proceedings start means that the non-EU family member loses his or her rights, the Court should have interpreted Article 12(3), which specifically sets out rules on departure of EU citizens. However, that provision doesn’t suggest (by means of words like ‘only’ or ‘except where’) that it sets out an exhaustive list of cases where non-EU family members get to stay despite the EU citizen’s departure. Arguably, if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

The Court’s ruling creates problems for legal certainty, because it will not always be clear if an EU citizen has left the country. What if the marriage is initially intact despite a cross-border separation, (the opinion suggested an exception for such cases)? How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing? How can we be sure that the EU citizen is no longer in the host Member State? Who has the burden of proof in such cases – the host State’s authorities, or the family member who has been deserted?

It’s striking that for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Does the Singh ruling mean that even if these hardship cases, the third-country national family member loses rights as soon as the EU citizen has departed?

It should be noted that the third-country nationals concerned may have rights under other provisions of EU law, for instance if they are refugees, Turkish citizens covered by the EU association agreement with Turkey, or possibly long-term residents who could obtain rights under the EU long-term residents’ Directive by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. The latter Directive does not apply in Ireland (or the UK or Denmark), but could be relevant for people in the same position in other Member States. As noted above, they would also have rights if they are the carers of children of an EU citizen in the host State, or permanent residents under the EU Directive.

The Court’s ruling creates a ‘rush to court’ incentive for the non-EU spouse, who will need to bring divorce proceedings before the EU citizen leaves the country. The EU’s rules on civil jurisdiction in divorce cases give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  

So what should the Court have ruled? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce lose much of their effet utile if they cease to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The better way to reconcile the two sets of rules would have been to rule that Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Court’s approach of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: Telegraph

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