Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU?

Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Photo: Mr Adrian Coman (right) with his spouse, Mr Claibourn Robert Hamilton (left)

(picture from PinkNews http://www.pinknews.co.uk/2016/11/29/romania-goes-to-court-over-whether-to-recognise-gay-couples-marriage/)

Introduction

The legal recognition of same-sex relationships has, in the last couple of decades, become one of the most prominent issues discussed in parliaments, in courts, and in the media, around the world, with views on both sides of the debate being overwhelmingly strong. This is a complicated and sensitive matter which touches on issues relating to human rights, religion, morality, and tradition, as well as on constitutional principles such as equality, autonomy, and human dignity. Despite the fact that there has been research which demonstrates the benefits – especially for young LGB persons – of opening marriage to same-sex couples (see, for instance here), most religions and Churches reject this move and are, even, often vehemently opposed to it, considering homosexuality a ‘sin’, this leading, in turn, to negative societal attitudes towards LGB persons, especially in countries that are deeply religious. The decision to extend legal recognition to same-sex relationships – in countries where this has been made – does not signal the end of the debate, but a number of additional questions emerge once this step is taken: what legal status should be given to same-sex couples? Should they be allowed to adopt children as a couple? Should same-sex couples comprised of two men be allowed to have a child through a surrogacy arrangement? Should same-sex couples comprised of two women be allowed to have a child (as a couple) through medically assisted insemination and, if yes, should the State fund this?

Europe has, until recently, boasted as the most progressive continent regarding the legal recognition of same-sex relationships, with Denmark being the first country in the world to introduce same-sex registered partnerships (in 1989) and the Netherlands being the first country to introduce same-sex marriage (in 2001). In fact, all western EU Member States now make provision for legal recognition of same-sex relationships, and in some of them the law treats same-sex couples in exactly the same way as it treats opposite-sex couples. Yet, the majority of the eastern European countries do not offer legal recognition to same-sex relationships and, in fact, a handful of them have – or have recently introduced – a constitutional ban on same-sex marriage (of the EU Member States, these are Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia).

The EU has managed to avoid having to take a clear stance on the issue of the legal recognition of same-sex relationships, considering that this is a matter that falls exclusively within Member State competence. However, what happens when a married couple comprised of persons of the same sex moves between Member States in exercise of EU free movement rights? Must a same-sex marriage entered into in another Member State be recognised by a Member State which does not provide for the legal recognition of same-sex relationships in its territory, when a Union citizen seeks to rely on EU law to claim family reunification rights on his return to that State? The EU judiciary has, now, been called to clarify the EU’s position on this issue in the Coman case (Case C-673/16). The case is pending before the ECJ and the judgment is eagerly awaited by LGBT organisations, lawyers and academics interested in LGBT rights, and married same-sex couples who have, so far, been disappointed by the lack of clarity as regards the protection they enjoy under EU law when exercising their free movement rights.

LGBT Rights in Romania

Romania does not provide any form of legal recognition for same-sex couples and two draft bills on the matter have been recently rejected by the Romanian Parliament with large majorities. In addition, the country’s Civil Code expressly bans same-sex marriages and registered partnerships and prohibits the recognition of same-sex marriages and registered partnerships entered into abroad. Romania is a deeply religious country with the majority of its population being against the legal recognition of same-sex relationships: in 2016, within a period of six months, around 3 million Romanians signed a petition calling for a referendum to change the country’s constitution to define marriage as an institution between a man and a woman, which, if it yields a positive result, will effectively introduce a constitutional ban on same-sex marriage. The petition – which has been strongly backed by the US Evangelical firm Liberty Counsel and the Romanian Orthodox Church – has been organised by the ‘Campaign for Family’ which is a Romanian coalition of religious and conservative NGOs established in 2015, and has been held valid by the Romanian Constitutional Court. At the moment, there is, still, no constitutional ban on same-sex marriage in Romania, as the proposed constitutional amendment can be made only once it is approved in a referendum and by a majority in the Romanian parliament.

Romania has received one of the lowest scores in ILGA Europe’s Rainbow Map (with only 3 other EU Member States – Poland, Lithuania and Latvia – having received a lower score), as the protection it offers to LGBT persons and same-sex couples appears rather rudimentary. This seems to be reflective of the fact that public acceptance of LGBT people and same-sex relationships in this country is lower than the EU average.

The Coman case is the second reference to the ECJ from Romania concerning LGB rights; the first such case was Asociaţia ACCEPT, which involved the prohibition of discrimination on the ground of sexual orientation under Directive 2000/78 (see the comments on that case by Belavusau here).

The Coman Case

Adrian Coman is a Romanian gay rights activist. He married his male partner (Claibourn Robert Hamilton) – a US citizen – in Belgium in 2010 and the couple currently lives in the US. In 2012, Mr Coman asked the Romanian immigration authorities for information on the requirements for obtaining a residence permit for his spouse. He was told that such a permit would be refused on the ground that the couple’s same-sex marriage could not be recognised in Romania as the Romanian Civil Code bans the recognition of same-sex marriages performed abroad; if Mr Coman’s spouse was a woman, the marriage would have been automatically recognised in Romania and Mr Coman’s spouse would have been entitled to a residence permit by virtue of that. As a result of this, the couple brought an action, claiming that the refusal of the residence permit due to the failure of the Romanian authorities to recognise same-sex marriages contracted abroad, amounted to a breach of Mr Coman’s EU free movement rights as well as to discrimination on the ground of sexual orientation, contrary to the EU Charter of Fundamental Rights (EUCFR). The first instance court hearing the case referred a question to the Romanian Constitutional Court regarding the constitutionality of the relevant provisions of the Civil Code. The Romanian Constitutional Court, by a majority of seven to two, then, decided to stay the proceedings and to refer a number of questions for a preliminary ruling to the ECJ, which can be summarised as follows:

a) whether the word ‘spouse’ in Article 2(2)(a) of Directive 2004/38 includes a same-sex spouse and, if yes, whether the host Member State is required by the Directive to grant the right of residence on its territory for more than three months to the same-sex spouse of a migrant Union citizen

and, in case the previous question is answered in the negative,

b) whether the same-sex spouse of a migrant Union citizen can qualify as ‘any other family member’ under Article 3(2)(a) of the 2004 Directive or as ‘the partner with whom the EU citizen has a stable relationship’ under Article 3(2)(b) of the Directive and, if yes, whether the host Member State is required to facilitate entry and residence on its territory by the same-sex spouse of a migrant Union citizen, even if it does not recognise same-sex marriage and does not provide for an alternative form of legal recognition for same-sex couples.

The hearing for the case has been scheduled for 30 March 2017. 

The case has attracted extensive national and international media coverage and a number of Romanian and non-Romanian NGOs have intervened.

The Issue in a Nutshell

Although the EU Treaties do not make reference to the family reunification rights of Union citizens who exercise their free movement rights, already in the 1960s it was recognised that if Member State nationals were to move between Member States in furtherance of the Community’s objectives, they had to be given the right to be accompanied by their close family members in the Member State to which they moved (see Regulation 1612/68 and Directive 73/148). Accordingly, secondary legislation has always made provision for family reunification rights – these are, currently, provided by Directive 2004/38 – for Union citizens who exercise their right to move and reside freely in the territory of a Member State other than that of their nationality. In addition ‘returnees’ (i.e. Member State nationals who return to their State of nationality after having exercised free movement rights) have been considered, also, to enjoy such rights by virtue of primary EU law and, in particular, by the EU free movement provisions (see the Singh case); however, as made clear in the O & B case (para. 50), the interpretation of the family reunification rights granted by Directive 2004/38 is relevant to them as well, since the family reunification rights laid down in the Directive apply ‘by analogy’ to returnees, this being the reason that the questions referred in Coman (which involved a ‘returnee’) concerned the interpretation of the Directive.

The ‘spouse’ of the migrant Union citizen (now referred to in Article 2(2)(a) of Directive 2004/38), has always been considered one of the family members that can rely on EU law in order to require the Member State of destination to accept him or her in its territory. The nationality of the ‘spouse’ and, in particular, whether he is a Union citizen or a third-country national, has never mattered, as the rationale behind granting family reunification rights has, simply, been to encourage the exercise of free movement by the Union citizen and this can be impeded if the spouse – whatever his/her nationality – cannot accompany or join the migrant Union citizen. Practically speaking, family reunification rights have been mainly used by Union citizens who are married to third-country nationals, as the latter do not enjoy an individual right to free movement under EU law.

The important question for our purposes – and the one raised in Coman – is whether the term ‘spouse’ in this context includes the same-sex spouse of the Union citizen who has exercised free movement rights. A quick perusal of Directive 2004/38 demonstrates that the matter is not clear: the gender- and sexual orientation-neutral term ‘spouse’ is used in Article 2(2)(a) of the Directive, when defining one of the categories of family members that enjoy an automatic right to join or accompany the migrant Union citizen in the Member State of destination, without the meaning of this term being further clarified in any other part of the Directive. This is so, despite the fact that when the proposal for the Directive was discussed by the EU legislature, the question of whether the term should be read to include a same-sex spouse had been expressly laid on the table.

Due to the sensitivity of the issue and the divergence of views among the Member States, the EU legislature consciously chose vagueness over clarity, thus making this an issue that would have to be resolved by judicial interpretation. Coman is the first opportunity that has been given to the ECJ for providing an interpretation of the term ‘spouse’ in this context and for clarifying whether this term must be read as including the same-sex spouse of a Union citizen. Three years ago – in the Cocaj case (C-459/14) – the ECJ was asked to clarify the meaning of the term ‘registered partner’ in the same Directive and to specify, in particular, whether it includes same-sex registered partners, but the reference was subsequently withdrawn by the referring court, meaning that that question remains unresolved.

What Must the Court rule?

Two years ago, the issue of the legal recognition of same-sex relationships in the US was resolved once and for all by the US Supreme Court’s judgment in the Obergefell v. Hodges case. The Supreme Court based its decision to require all US states to extend marriage to same-sex couples and to recognise same-sex marriages contracted in another US state, on a dual basis: a) the need to respect the fundamental right to marry as one of the fundamental liberties protected by the US Constitution’s Fourteenth Amendment’s Due Process Clause, since the freedom to choose who to marry is central to individual dignity and autonomy; and b) the US Constitution’s Fourteenth Amendment’s Equal Protection Clause, since the refusal to open marriage to same-sex couples leads to inequality between same-sex and opposite-sex couples: the former are denied benefits and a status afforded to opposite-sex couples and – unlike the latter – are barred from exercising a fundamental right (i.e. the right to marry).

As argued in another post in this blog, Obergefell v. Hodges is the case that put the US ahead of the EU with regards to the issue of the legal recognition of same-sex relationships, and has stripped the latter of its position as a pioneer in the field of LGBT rights protection. However, is Coman now the EU’s opportunity not merely to catch-up with the US but, also, to re-acquire its position as pioneer in the protection of LGB rights, since EU law already provides protection to LGB persons from discrimination on the ground of sexual orientation in the employment field, something which is currently lacking at federal level in the US?

Coman is only about the cross-border legal recognition of same-sex relationships and, in particular, about the cross-border recognition of same-sex marriages. Accordingly, the Court is not asked to rule on whether the EU – as the US – can require Member States to open marriage to same-sex couples in their own territory. After all, it is clear that even if it was asked to rule on this, its hands would be tied since – as it confirmed not long ago in cases involving sexual orientation discrimination (see, for instance, Römer and Hay) – ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. This means that whether same-sex couples should be allowed to marry in a Member State, is a matter entirely left to be decided by the said Member State. Refusing to allow same-sex couples to marry does, of course, violate a number of human rights, however because the issue of determining the marital status of persons falls within the exclusive competence of the Member States and because the way that each Member State decides to regulate this matter has not – so far – interfered with the exercise of rights stemming from EU law and/or with the execution of any of the EU’s policies, the issue falls outside the remit of the Court.

The question, therefore, is whether the Court in Coman should rule that the term ‘spouse’ in Directive 2004/38 must be read to include the same-sex spouse of a Union citizen and, thus, to effectively require all Member States (even those that have not opened marriage to same-sex couples in their territory) to admit within their territory the same-sex spouse of Union citizens who move between Member States.

In my view the answer to this question is ‘yes’, and this is for the following reasons.

First, if the ECJ rules that the term ‘spouse’ does not include same-sex spouses, this will amount – in effect – to granting a license to the Member States to restrict the free movement rights of LGB Union citizens who are in a same-sex marriage. It is hard to believe that a Union citizen who is happily married in a Member State would willingly move to another Member State where his/her same-sex spouse would not be allowed to accompany or join him/her; or, assuming that the spouse could join him/her in the host State on another basis (i.e. not as his/her spouse), it would be highly unlikely that (s)he would be willing to move to a Member State where the marriage would not be recognised and, thus, where his/her spouse and him/her would not be treated as a couple for the purposes of taxation, social security, property law, inheritance and so on, with the obvious disadvantages that would ensue from this.

In fact, the current lack of clarity that persists with regards to the mutual recognition of same-sex marriages in EU Member States and the consequent inconvenience that emerges as a result of this uncertainty is, in itself, an obstacle to free movement: being unsure as to whether your same-sex spouse may be able to join you in another Member State and/or be considered as your spouse there is highly likely to deter your exercise of free movement. The ECJ cannot interpret a provision of EU law (namely, Article 2(2)(a) of Directive 2004/38) in a way which permits Member States to breach other provisions of EU law (namely, the EU free movement provisions). A measure which impedes the exercise of free movement rights cannot be justified if it violates fundamental human rights protected under EU law (see, for instance, Carpenter, para. 40). Hence, a restriction on free movement which emerges as a result of the failure of a Member State to recognise a same-sex marriage, cannot be justified since, as will be seen below, it breaches a number of fundamental human rights protected under EU law.

Second, the ECJ – as one of the EU institutions – is bound by the EUCFR (see Art. 51(1) EUCFR), in interpreting EU law provisions (including Article 2(2)(a) of Directive 2004/38) it must ensure that it does not breach the prohibition of discrimination on the ground of sexual orientation, laid down in Article 21 EUCFR. An interpretation of the term ‘spouse’ which excludes from it same-sex spouses is, clearly, directly discriminatory on the ground of sexual orientation and is, thus, contrary to Article 21 of the Charter. Furthermore, the 2004 Directive itself provides in its Recital 31 that in accordance with the prohibition of discrimination contained in the Charter (in Article 21), Member States must implement it without discrimination between its beneficiaries on, inter alia, the ground of sexual orientation. Accordingly, the Directive itself appears to be requiring an interpretation of its provisions – including of the term ‘spouse’ – which does not give rise to discrimination against same-sex couples.

A third and related reason is that following (as required by Article 52(3) EUCFR) the ECtHR’s recent judgment in Pajić v Croatia (see the comments by Hodson here) which was a case about the family reunification rights of an unmarried same-sex couple, the refusal to recognise same-sex marriages validly recognised in another Member State and the consequent refusal to grant family reunification rights to same-sex married couples when they move between Member States – can amount to a breach of Article 7 EUCFR (the right to private and family life) when read together with Article 20 EUCFR which states that ‘Everyone is equal before the law’, given that same-sex married couples are treated differently, under the law, from opposite-sex married couples who, under EU law, enjoy automatic family reunification rights when they move to another Member State. Although – as confirmed in Pajić (para. 80) – the right to family life (as protected under Article 8 ECHR) does not give the right to a family member to enter or to settle in a particular country for family reunification purposes, States must exercise their ‘immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for his or her private or family life and the right not to be subject to discrimination’. Hence, although Article 7 EUCFR cannot, if interpreted in the same manner as Article 8 ECHR, be relied on to require a Member State to admit within its territory the (opposite-sex or same-sex) spouse of a Union citizen, when that provision is read together with Article 20 EUCFR, it requires same-sex spouses to be admitted to the territory of the host State under the same conditions that are imposed on opposite-sex spouses (i.e. automatically).

Fourth – and drawing inspiration from the US Supreme Court’s judgment in the Obergefell v. Hodges case – the refusal of the ECJ to consider same-sex marriages as valid marriages for the purposes of Directive 2004/38, is liable to amount to a breach of another human right protected under the EU Charter of Fundamental Rights, namely, the right to human dignity (Article 1 EUCFR). The argument goes as follows: forming intimate relationships with other individuals, choosing to formalise these relationships and consequently attaching to them a legal status is an exercise of personal autonomy, which is an aspect of the dignity of every human being. All human beings are equal in dignity. By prohibiting discrimination on the ground of sexual orientation, the EU has accepted the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When the EU institutions and/or the Member States refuse to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, they treat such relationships differently from opposite-sex relationships and they seem to be considering the relationship choices of LGB individuals who are in a same-sex relationship as inferior to opposite-sex relationships and, hence, as not having the same moral worth as the latter. Treating LGB Union citizens as second-class citizens by failing to recognise and respect their choices in forming intimate relationships and formalising them can, therefore, amount to a violation of their right to human dignity.

Finally – following ECtHR case-law (see, for instance, Wagner) – by interpreting Directive 2004/38 in a way which refuses to recognise a family status (i.e. that of a ‘spouse’) the ECJ may be acting in a way which violates the right to family life, as this is protected under Article 7 EUCFR. In addition, by allowing Member States to relegate same-sex spouses to one of the other categories of family members laid down on the list provided in Directive 2004/38 and to strip them of their legal status – as asked in some of the questions referred to the ECJ in Coman – will, also, be contrary to EU law as this will not, only, amount to a breach of Article 7 EUCFR but will, also amount to a breach of the EU free movement provisions, given that migrant Union citizens will lose the automatic right to be accompanied or joined by their spouse in the Member State where they move, with the obvious deterrent effect that this may have.

It is true that as late as 2001, the ECJ attached a heteronormative meaning to the term ‘marriage’ noting, in its judgment in the case D and Sweden v. Council, that it ‘means a union between two persons of the opposite sex’. In subsequent years, however, it was made clear that the EU does recognise same-sex marriages as valid marriages for the purposes of EU law (for instance, when it comes to the application of the EU Staff Regulations – see the W case). Nonetheless, for the reasons stated above, the ECJ should now take the additional step of clearly holding that all Member States (and even those that do not provide legal recognition to same-sex relationships in their territory) must recognise same-sex marriages validly contracted in another Member State in situations that fall within the scope of EU law. A marriage validly contracted in one Member State – whether between two persons of the same- or two persons of the opposite-sex – should be considered a ‘marriage’ in every other Member State and, thus, the parties to a same-sex marriage should, also, be considered ‘spouses’ for the purposes of Directive 2004/38. This will mean that all EU Member States will be required by EU law to recognise same-sex marriages validly entered into in another Member State, and this will be so irrespective of whether they have opened marriage to same-sex couples in their own territory.

Barnard & Peers: chapter 13

Further Reading:

U. Belavusau and D. Kochenov, ‘On the “Entry Options” for the “Right to Love”: Federalizing Legal Opportunities for LGBT Movements in the EU’ EUI Working Paper Law 2016/09 available here

C. Bell and N. B. Selanec, ‘Who is a “spouse” under the Citizens’ Rights Directive? The prospect of mutual recognition of same-sex marriages in the EU’ (2016) 41 European Law Review 655

C. Cojocariu, ‘Same-Sex marriage before the courts and before the people: the story of a tumultuous year for LGBT rights in Romania’, VerfBlog, 25/1/2017

M. Fichera, ‘Same-Sex Marriage and the Role of Transnational Law: Changes in the European Landscape’ (2016) 17 German Law Journal 383 (available here)

N. Markard, ‘Dropping the Other Shoe: Obergefell and the Inevitability of the Constitutional Right to Equal Marriage’ (2016) 17 German Law Journal 509 (for an analysis of Obergefell) (available here)

S. Titshaw, ‘Same-Sex Spouses Last in Translation? How to Interpret “Spouse” in the EU Family Migration Directives’ (2016) 34 Boston University International Law Journal 45 (available here)

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) 21 Columbia Journal of European Law 195

CS and Rendón Marín: Union Citizens and their Third-Country National Parents – A Resurgence of the Ruiz Zambrano Ruling?

Maria Haag, PhD Researcher, European University Institute (Florence, Italy) & Michigan Grotius Research Scholar, University of Michigan Law School (Ann Arbor, Michigan)

Background

Five years ago, the CJEU delivered its infamous Grand Chamber decision in C-34/09 Ruiz Zambrano. It held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (para 42, emphasis added). This 'genuine enjoyment'-protection had two consequences. First, Union citizens could rely on Article 20 TFEU against their Member State of nationality without having previously made use of their rights to free movement and thus bypassing the Court's general lack of jurisdiction in 'purely internal' situations. Secondly, Member States were precluded from denying a right of residence to third-country national ('TCN') parents or caretakers of minor citizens of that Member State, as these children would otherwise be forced to leave the territory of the EU and thus no longer able to make use of the rights granted by Union citizenship.

Shortly after the delivery of this ground-breaking judgment, the Court of Justice proceeded to interpret Ruiz Zambrano very narrowly in a series of cases (C-434/09 McCarthy, C-256/11 Dereci and Others, C-40/11 Iida, C-356&357/11 O. and S., C-87/12 Ymeraga and Others, C‑86/12 Alokpa and Moudoulou and C-115/15 NA) leading many to wonder about the original significance of the Ruiz Zambrano decision. In contrast to Ruiz Zambrano, these subsequent cases mostly concerned the significance of Article 20 TFEU in a host Member State. The Court held that the applicants fell outside the scope of Article 20, even if they had never moved to another Member State, i.e. had been born in a Member State other than their Member State of nationality and had never left. The most recent cases – C-304/14 CS and C-165/14 Rendón Marín – however, Ruiz Zambrano decision, fully address the right under Article 20 TFEU in the home Member State. On the 13th of September 2016, the Grand Chamber delivered these two decisions in which it considered the effect of a criminal record of a TCN parent on his or her derived residence right under Article 20 TFEU and to what extent this right can be derogated on grounds of public policy or public security.

C-304/14 CS: facts and judgment

The case in CS concerned a Moroccan national, who resided in the UK together with her British national son. In 2012, she was convicted of a criminal offence and given a prison sentence of 12 months. Following her conviction, she was notified of her deportation liability. Her subsequent application for asylum was denied. Upon her appeal, the First-tier Tribunal (Immigration and Asylum Chamber) found that her deportation would violate her child's rights under Article 20 TFEU. The Home Secretary was granted permission to appeal this decision before the Upper Tribunal, which asked the CJEU, under which circumstances the expulsion of a TCN caretaker of a Union citizen could be permitted under EU law and whether Article 27 and 28 of the Directive 2004/38 (the ‘citizens’ Directive’, which sets out the main rules on EU citizens who move to another Member State) had any effect in this case.

In its two-part decision, the Court firstly answered the question whether a TCN parent of a Union citizen has a derived right of residence in the home Member State under Article 20 TFEU and, secondly, if such a right can be limited on grounds of public policy or public security.

The Court first firmly restated its holding in Ruiz Zambrano. It explained that Article 20 TFEU "precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens" (para 26; citing Ruiz Zambrano para 42). Furthermore, this means that "a right of residence must … be granted to a third-country national who is a family member of [a minor Union citizen] since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right that citizen would be obliged in practice to leave the territory of the European Union as whole" (para 29). CS thus had a derived right of residence under Article 20 TFEU in her son's home Member State.

Secondly, the Court held that, as a general rule, such a derived residence right can be derogated for reasons of public policy or public security: "where the exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security … that decision could be consistent with EU law" (para 40, emphasis added). However, a deportation decision cannot be made "automatically on the basis solely of the criminal record of the person concerned" (para 41). Thus the UK legislation at issue, which obliges the Home Secretary to make a deportation order of any non-national who is sentenced to a period of imprisonment of 12 months or more, establishes "a systematic and automatic link between the criminal conviction of a person … and the expulsion measure" (para 44) and therefore violates EU law. Instead, it is for the national courts to weigh up "the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation" (para 42, emphasis added).

Furthermore, derogations for reasons of 'public policy' or 'public security' must be interpreted strictly and decisions are subject to review by the EU institutions (para 37). Lastly, and most notably, the assessment of the individual situation must take account of the principle of proportionality and the rights protected in the Charter of Fundamental Rights of the European Union ('CFREU'), especially Article 7 on the right to respect of private and family life and Article 24(2) on the obligation of consideration of the child's best interests (paras 48 and 49).

C-165/14 Rendón Marín: facts and judgment

The facts in Rendón Marín are very similar to the ones in CS and essentially raise the same question, presumably why the Court decided these cases on the same day and why Advocate General Szpunar did not give separate opinions in these cases, but combined the two. Rendón Marín concerned a Colombian national father, who lived in Spain together with his Spanish national son and his Polish national daughter. His application for a residence permit was rejected due to his criminal record. The crucial difference between the facts of the two cases is that Mr Rendón Marín has a Union citizen daughter who lives in a host Member State and a son who lives in his home Member State. There thus exists a cross-border element in the situation of his daughter, but not in his son's (For further discussion on the cross-border element, see C-200/02 Zhu and Chen, especially para 19.).

The part of the Court's decision concerning the son's circumstances – a Spanish national in Spain – is almost identical to the Court's judgment in CS. In fact, some of the paragraphs can be found in exactly the same wording in both decisions (the two cases also had the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marín mentioned the possibility of moving to Poland, as this is the Member State of nationality of Mr Rendón Marín's daughter. Whilst the Court noted the applicant's objection that the family had no ties to Poland, it did not go into this discussion. (See, in contrast, footnote 109 in Advocate General Szpunar's Opinion in CS and Rendón Marín. For more on this, see also Advocate General Wathelet's Opinion in NA, paras 112-117.) Here the Court simply holds that "it is for the referring court to check whether … the parent who is the sole carer of his children, may in fact enjoy the derived right to go with them to Poland and reside with them there" (para 79, citing Alokpa and Moudoulou paras 34-35). The Court therefore did not deny that moving to Poland could be a possible solution in case of the father's deportation from Spain.

As for the legal status of the daughter, the Court held that, as a Polish national and Union citizen, she could rely on Article 21 TFEU and the Directive 2004/38 to grant her a right of residence in Spain (para 44). Furthermore, the Court stated that if the daughter fulfils the conditions laid down under Article 7(1) Directive 2004/38 (i.e. having sufficient resources and comprehensive health insurance) then the derived right of residence of Mr Rendón Marín, her father and sole caretaker, cannot be refused (para 53). Whilst this derived right of residence can be limited for reasons of public policy or public security (para 57), EU law precludes such limitations on "grounds of a general, preventive nature" (para 61). Instead, it is for the national courts to do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras 59-66). Derogations from derived rights of residence on the basis of Article 20 TFEU and Article 21 TFEU thus presumably have to withstand the same test.

Comment

After a longer period of silence on this issue, the Court in these cases seems at the very least willing to explore the scope of Ruiz Zambrano. (The Court should soon decide another case, Chavez-Vilchez, which raises some further important questions about the scope of that judgment). The two recent judgments, whilst they in some sense appear to diminish the scope of Ruiz Zambrano even further, can also be seen as a restatement of the fundamental significance of the original judgment.

The cases following the Ruiz Zambrano decision made it very clear that protection under Article 20 TFEU is only applicable to a very small number of people in "very specific situations" (Rendón Marín para 74; CS para 29): essentially only to minors who reside with their TCN parents in their home Member State. CS and Rendón Marín both confirm this, but also clarify that a very high level of protection is granted to those Union citizens who fall within the scope of the 'Ruiz Zambrano-protection'. In fact, the substantive protection against expulsion is equivalent to that of EU citizens (and their family members) who move to another Member State (the Court refers to concepts found in the EU citizens’ Directive and its predecessors, as well as relevant case law), although it is not clear if the same procedural protection applies. 

The Court certainly does not exclude the possibility that "in exceptional circumstances" (CS para 50) a criminal and dangerous parent who poses a threat to a Member State's public policy or public security could be deported. Even if this means that his or her Union citizen children are forced to leave EU territory and thus deprived of the genuine enjoyment of their EU citizenship rights. Nevertheless, the Court insists on a very stringent test before such a decision can be taken.

Most notably, the Court refers to the EU's Charter of Fundamental Rights and stresses the fact that a deportation decision needs to take account of Article 7 and Article 24(2) of the Charter (see CS paras 36 and 48; Rendón Marín paras 66 and 85). In Dereci, the Court had previously held that "if the referring court considers … that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter" (Dereci, para 72). In that case the Court had decided that the circumstances fell outside the scope of EU law, and that it was therefore beyond its jurisdiction to consider a violation of the Charter. In both CS and Rendón Marín, the Court found that the applicants' circumstances fell within the scope of EU law and thus that the Charter applied.

It is also interesting to compare the protection granted in C-135/08 Rottmann against the deprivation of the legal status of Union citizenship altogether and the protection granted in CS and Rendón Marín against being deprived of the genuine enjoyment of the Union citizenship rights by means of a parent’s expulsion to a non-EU state. Whereas in Rottmann, the Court held that a decision to withdraw someone's nationality needs to respect the principle of proportionality (Rottmann, para 59), in CS and Rendón Marín it established a list of criteria that need to be observed. Curiously, the Rottmann-test therefore appears to be narrower than the one established in CS and Rendon Marin, even if the potential outcome in circumstances like Rottmann, i.e. statelessness, might be much more serious for the individual concerned.

In its decision in CS, the Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands. The EU Court states in paragraph 49:

"[A]ccount is to be taken of the child's best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the Member State concerned and the extent to which he is dependent on the parent (see, to this effect, ECtHR, 3 October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819, §118)."

Jeunesse v. the Netherlands, which was decided by the Strasbourg court in 2014, concerned a Surinamese national, who lived with her Dutch national husband and children in the Netherlands without a valid residence permit. The applicant argued that the refusal to allow her to reside in the Netherlands infringed her right to respect of her family life under Article 8 ECHR. The facts of this case are very similar to the ones in Dereci, in which the Court of Justice held that such a denial of residence right did not conflict with EU law. The ECtHR, however, came to the conclusion that the Dutch authorities had failed "to secure the applicant's right to respect for her family life as projected by Article 8 of the Convention" (Jeunesse v the Netherlands, §122).

So what does the reference to this judgment mean? First and foremost, the CJEU clarifies and stresses the utmost importance of taking account of the children's best interests in these deportation decisions. Secondly, it signals the Court's commitment to taking the fundamental rights of those who fall within the Ruiz Zambrano-protection very seriously.

Finally, the fact that the Court treats the situation of the daughter and the son separately in Rendón Marín reaffirms the Court's findings in previous cases that a Union citizen in a host Member State first has to rely on Article 21 TFEU before Article 20 can be applied. In the NA judgment, which the Court delivered at the end of June 2016, it held that one first has to examine whether the citizen and their TCN caretaker have a right of residence under secondary EU law. Only if there is no such right, can Article 20 TFEU apply.

The NA case concerned a Pakistani national mother who lived in the UK with her German national children where she was refused a right of residence. The Court decided that because it had already held that both the children and their TCN mother had a right of residence in the host Member State under Article 12 of Regulation No. 1612/68 (paras 52-68), which guarantees children of current and former workers the right to access to education in the host Member State, with corollary residence rights for those children and their parents (for more, see CJEU decisions in C-480/08 Teixeira and C-310/08 Ibrahim). Article 20 TFEU did not confer a right of residence in the host Member State. It is clear that the protection under Article 20 TFEU is one of last resort. Whilst the Court in NA and Rendón Marín does not directly rule out the possibility that the Ruiz Zambrano-protection might apply in a host Member State, it now almost seems impossible. It appears that that protection can only be granted by the home Member State.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo credit: cpkidsmountainclimbers.wordpress.com

Free movement of persons in the European Economic Area (EEA) – different from the EU?

Karin Fløistad: PhD Candidate, European University Institute; practicing lawyer at Norwegian law firm Simonsen Vogt Wiig

Free movement of persons continues to be debated in the UK after the Brexit referendum and the EEA Agreement is often referred to regarding the UK's future relationship with the EU.  This post intends to address two differences in the right to free movement of persons in a model of association with the EU outside membership – the EEA Agreement compared to the right to free movement of persons in the EU.

The EEA Agreement extends the EU internal market to include three of the parties to the European Free Trade Association (EFTA) – Norway, Iceland and Liechtenstein – but without membership in the Union. The extension of the internal market means, in principle, parallel rights and obligations in the area of free movement (including the right to free movement of persons) and competition law. Nevertheless, certain products (fish and agricultural products, see Article 8(3) EEA) and tax harmonisation are outside the scope of the Agreement. 

However, there are two differences between being subjected to the right of free movement of persons as a Member State of the EU compared to that of being a Contracting Party to the EEA Agreement. The first is the lack of Union citizenship in the EEA. The second is that immigration from other non-EU countries is outside the scope of the Agreement. Hence, free movement of persons is clearly different in the EEA compared to the EU – although the EFTA States have signed up to be part of the EU’s non-EU immigration rules (the Schengen open borders rules and the Dublin rules on asylum responsibility) separately. As will be demonstrated institutional practice (in particular the EFTA Court's case law regarding citizens' right to free movement) has nevertheless made the implications of these differences in the legal framework unclear.  

In legal terms, the two differences are expressed first, through the fact that there are no corresponding provisions to the relevant EU primary law; hence Articles 20-25 TFEU regarding the creation of the concept of Union citizenship and Article 79 TFEU on rights of non-EU citizens are not paralleled in the EEA Agreement. Second, there are parallel differences in secondary legislation: EU laws on non-EU citizens such as Directive 2003/86/EC on the right of family reunification and Directive 2003/109/EC on rights of long term residents have not been made part of the annexes of the EEA Agreement.  Furthermore, the two differences were recently emphasised by the Contracting Parties in a Joint Declaration, which was adopted when the EU’s citizens’ Directive (the main secondary legislation regarding the right to free movement of citizens) was made part of EEA law (Decision by the EEA Joint Committee No 158/2007).

That Decision enshrined the citizens' Directive as part of the EEA Agreement through an amendment of Annexes V and VIII to that agreement, with the usual adaptations such as substituting the words 'Union citizen(s)' with the words 'national(s) of EC Member States and EFTA states. The citizens' Directive entered into force in the EEA on 1 March 2009 and has been the subject of four EFTA Court cases; E-4/11 Clauder (Liechtenstein), E-15/12 Wahl (Iceland), E-26/13 Gunnarsson (Iceland) and finally the recent case of E-28/15 Jabbi (Norway).   

Since the late 1990s the CJEU has applied the status of Union citizenship to create rights in the field of extending territorially bound social security rights, to ensure patient's rights to have treatment abroad paid for by domestic welfare systems, to ensure the export of student financing as well as ensuring rights for non-EU citizens as family members of Union citizens. All this case law has been inspired by or legally based on the fundamental status of Union citizenship. Hence, the construction of Union citizenship has contributed to EU law, including EU institutional practice, having an impact on national domestic systems of welfare and immigration. Union citizenship is part of increasing and deepening the EU integration process. Free movement rights for individuals detached from market objectives substantiate Union building. Citizens should ideally move freely, and therefore, states have obligations not to create barriers to movement. 

No parallel objective exists in the economic and market oriented scope of the EEA Agreement. The EEA Agreement is, however, a complex legal construction where the principles of dynamism and homogeneity with EU law have been afforded significant weight in the institutional practice (see for a recent reference to the substantial weight of the homogeneity objective in paragraph 60 of Jabbi). Hence, the EU/EFTA institutions applying EEA law have significantly paralleled the aforementioned developments in the EU legal order and included parallel rights for individuals with corresponding obligations on states into the EEA legal order (despite the lack of parallel provisions on EU citizenship); social security rights for the non-economically active movers (see Cases E-5/06 ESA v Liechtenstein, E-4/07 Porkelsson, E-3/12 Jonsson, E-6/12 export of child care benefits, E-26/13 Gunnarsson and C-431/11 UK v Council), free movement rights for patients (see Joined Cases E-11/07 and 1/08 Slinning and Rindal), export of student benefits (see EFTA Surveillance Authority Cases No 69199 and No 71579), rights for family members of non-economically active EEA citizens (see Case E-4/11 Clauder and EFTA Surveillance Authority Case No 73930 (pending)).

The EU/EFTA institutional practice on the right to free movement of persons in the EEA Agreement has reached its possible peak with the case of E-28/15 Jabbi. The question in the case was at the core of evolving EEA law – a possible right to family reunification with a non-EU citizen for a non-economically active EFTA state national who had availed herself of free movement rights and who was in receipt of welfare benefits. The EFTA Court's advisory opinion recognised that there are differences in the legal framework between the free movement of persons in the EEA compared to the EU, especially as regards EU citizenship (see paragraph 66 in particular). The Court refers to a gap due to the revised primary law of the EU in the Maastricht, Amsterdam, Nice and Lisbon Treaties with no corresponding changes in the main part of the EEA Agreement. The Court also recognised the differences by making it explicit that it has to rely on the legal sources available as part of EEA law (and consequently that the EFTA Court cannot rely on the same legal basis as the CJEU did in a similar case decided in 2014 (discussed here), given that Union citizenship has not been made part of EEA law) (see paragraphs 68 referring to an 'authority included in the EEA Agreement' and 71 referring to the citizens’ Directive being ruled out by the CJEU in the current situation).

The principal question in the case (answered by the EFTA Court in the affirmative) was whether a non-economically active EEA citizen seeking family reunification with a TCN national has rights based on EEA law when returning to his or her country of origin. In other words, the question was whether the situation is governed exclusively by national domestic law or whether rights may also be derived from EEA law.

The question of scope was challenging in the EEA context given the limitation of the citizens' Directive: it only applies to EEA citizens who have moved to a host state (with the exception of Chapter 2 regarding particular situations of exit visa etc, which were of no relevance to the case). The Jabbi case concerns instead the situation of rights against the home state, after having moved to another EEA state, and then returned. Rights against the home state for a non-economically active Union citizen falls within the scope of EU law through the concept of Union citizenship as enshrined in the primary EU law articles which are not paralleled in the EEA. Through the advisory opinion in Jabbi the EFTA Court took yet another step to ensure parallel rights to free movement of persons in the EEA as compared to the EU, transposing to the EEA legal order the relevant case law of the CJEU (discussed here), despite those differences in the EU and EEA legal frameworks.

However, the Union citizenship case law of the CJEU includes situations where no similar authority exists in the EEA such as the Ruiz Zambrano case law (see case C-34/09), where rights accrue to EU citizens solely by virtue of their EU citizenship, rather than because of movement between EEA members. In addition, the Union citizenship case law includes elements of mutual financial solidarity legitimating EU law having an impact on national welfare systems, see cases on students' rights against their home state in cases like C-359/13 Martens, C-220/12 Thiele and C-585/11 Prinz and Seeberger (discussed here). This aspect of mutual solidarity was also part of the reasoning in the early case law establishing Union citizenship as a fundamental status; see i.a. cases like C-184/99 Grzelczyk and C-209/03 Bidar regarding students' right to welfare benefits in the host state. Decisional practice from the EFTA Surveillance Authority indicates parallel rights for students in the EEA. A similar understanding might be hinted at from the EFTA Court in Jabbi in paragraph 51. However, what is striking in Jabbi is a renewed attention by the EFTA Court to limit the impact of its decision regarding national welfare systems and to be explicit about differences in the two legal orders.

In paragraphs 78 and 82 of the Advisory opinion the EFTA Court refers to the citizens' Directive Article 7(1)(b) to apply by analogy to the situation of a returning own national. The Court makes this reference stating that a derived right depends on the conditions in this Article to be fulfilled (in addition to other conditions familiar from CJEU Union citizenship case law regarding 'genuine stay' and length of stay for the Union citizen to find him/herself in a cross-border situation). One possible interpretation of the statements made by the EFTA Court in these paragraphs is the possibility to maintain national requirements for family reunification in terms of financial means available for the sponsor. This understanding of the opinion is based on the Court repeated references to family reunification in the home state to be conditioned upon the requirements in Article 7(1)(b) to be fulfilled also in the home state upon return (see paragraphs 80 and 82).  

    

Given this interpretation of the advisory opinion the extent to which the rights of Mr Jabbi to fall within the scope of EEA law to actually be of any concrete assistance is questionable. The right to family reunification for Mr Jabbi is ultimately conditioned on the sponsor fulfilling the criteria of sufficient means and medical insurance as enshrined in Article 7(1)(b) of the Citizens Directive meant to ensure that no unreasonable burden is placed on the national welfare systems. In this, the EFTA Court seems to have respected national conditions in Norwegian domestic immigration law where family reunification is conditioned on certain requirements regarding sufficient means. Another consequence of this reading of the advisory opinion is the extent to which both static citizens and returning non-economically active citizens would be treated alike in domestic legislation. 

The Union citizenship case law of the CJEU has always been directed towards efficient rights for the Union citizen and aiming at eliminating differences between the economically active and the non-economically active. Having said  this more generally the recent restrictive case law from the CJEU on host state obligations based on Union citizenship in cases like C-333/13 Dano, C-67/14 Alimanovic and the recent case on restricting the export of child care benefits from the UK, C-308/14 should also be mentioned. It may be argued that the EFTA Court's opinion in Jabbi is in line with this recent case law when the EFTA Court demonstrates deference to its decisions having an impact on domestic welfare systems. The spirit of Union citizenship case law and in particular the home state obligations enshrined in the recent CJEU case law on students' rights is, however, not apparent in the Jabbi case. On the contrary the EFTA Court seems more reluctant and albeit focusing on the aim of homogeneity to also for the first time pointing at possible differences occurring between the two legal orders due to differences in the legal framework. 

   

The institutional practice of EEA law from EU/EFTA institutions seems to consistently aim at paralleling free movement rights for persons in the EEA as compared to the EU. The general point to make here is nevertheless that the provisions on free movement rights for persons in the EEA Agreement are substantively different to their EU counterparts. This difference was pointed to in the Wahl case (paragraph 75) but the Jabbi case is the first time this difference is elaborated on by the EFTA Court (in particular paragraph 62).  In the EEA, the free movement of persons include the free movement rights for the economically active to facilitate the economic aim of the internal market. However, outside the economically active, rights are limited and there is neither the status of Union citizenship nor the overarching aim of an 'ever closer Union'. The rights of non-EU citizens are in principle outside the scope of the Agreement. Furthermore, institutional practice in the EEA is subject to the decisions made by the Contracting Parties in the political organ of the EEA Joint Committee. Free movement rights for persons are not the same in the EEA compared to in the EU. Whether they are sufficiently different to be of interest to the UK and the EU for future association remains to be seen.   

Barnard & Peers: chapter 13, chapter 25

JHA4: chapter I:6

Photo credit: louisanaconsularcorps.com

Domestic violence and free movement of EU citizens: a shameful CJEU ruling

Steve Peers

EU laws on the free movement of EU citizens don’t give non-EU citizens rights in their own name. Rather, non-EU citizens can only gain rights under those laws if they have a family link with an EU citizen. This creates an obvious problem in cases of domestic violence committed by an EU citizen against a non-EU citizen family member. If the non-EU family member breaks the family link in order to flee the violence, there could be a risk of expulsion. So the victims might stay with their abusers due to a fear of removal from the country, which might include separation from their children.

However, there are provisions of EU law that mitigate this risk. It has long been the position (since the CJEU judgment in Diatta) that non-EU citizens can remain in the same country as their EU citizen spouse following a separation. Their position only changes after divorce.

Upon divorce, the EU citizens’ Directive (which sets out most of the rules governing EU citizens who moved to another Member State) provides specific protection. As a general rule, they can remain if the marriage has lasted three years, including one year in the host State. They can also stay if they have custody of the children, or access to them in the host State. Finally, they can also stay if ‘this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage…was subsisting’. In any of these cases, they can later get permanent residence status.

The recent judgment in NA was the first time the Court of Justice has interpreted the specific rule on domestic violence cases. It follows last year’s judgment in Singh, where the Court first interpreted the general rule about divorce. Both cases raised the same underlying issue: what happens if the EU citizen leaves the host State before the divorce is finalised? Does that departure immediately end the non-EU citizen’s status under the citizens’ Directive, trumping the retention of their residence that would otherwise apply during their separation and (probably) their subsequent divorce from their spouse?  

According to the Court of Justice, it does. This reasoning was an unconvincing interpretation of the general rule in Singh, and it is a particularly unconvincing interpretation of the special rule on domestic violence victims, taking insufficient account of the social context of this rule. While the victim in NA was able to rely on other provisions of EU law, not all victims will be able to. The Court of Justice should therefore rethink its position if the case arises – particularly in light of the EU’s planned signature of the Istanbul Convention on violence against women.

The judgment

The case concerned the status of a Pakistani woman who moved to the UK with her German husband. (The judgment will no longer be relevant to the UK if the country leaves the EU without an agreement on the continued free movement of people. However, it will still be relevant to other Member States). Her husband worked in the UK, and the couple had two daughters, both of whom are German citizens. She left the household due to domestic violence, and her husband left the country shortly after that, before any divorce proceedings began. She subsequently sought permanent residence status in the UK.

Did she retain rights under the citizens’ Directive? As noted above, the Court said she did not. It simply followed Singh, ruling that rights for the non-EU family member ended the moment the EU citizen left the country, unless divorce proceedings had begun beforehand. It gave three reasons. First, the wording of the relevant clause referred only to divorce. Second, the context was the ‘exceptional’ case where a non-EU citizen retained a right to stay despite no longer being a ‘family member’ of an EU citizen living in the same Member State. Third, the Court referred to the ‘aims’ of the law. In its view, the EU legislature had declined to make provision for cases where the EU citizen had departed the Member State, and the original proposal referred to possible ‘blackmail accompanied by threats of divorce’, with ‘safeguards’ only ‘necessary…in the event of final divorce’, as the right of residence is ‘not at all affected’ by a ‘de facto separation’.  

So she had no rights under the citizens’ Directive. However, the Court then examined two other arguments for her stay. First, the Regulation on free movement of workers says that the children of EU workers are entitled to access education. The Court had previously ruled that this entailed a right for the children to stay even if the worker had left, along with a corollary right for the parent caring for them to stay as well. The UK court questioned whether this rule applied even if (as in this case) the children only started school after the worker had left the country; the Court of Justice confirmed prior case law that it did. It was sufficient that the children were resident at some point while one parent was working in that Member State.

Finally, the Court examined a two-fold argument for NA’s right to stay on the basis of the EU Treaties. The first leg of this argument invoked Ruiz Zambrano, the well-known 2011 CJEU judgment which said that non-EU family members of EU citizen children who had not moved within the EU could derive a right to stay based on their children’s rights as EU citizens not to be deprived of the benefits of their EU citizenship. But the Court said that Zambrano was irrelevant to NA, since it only applied as a default, where no EU legislation could protect the legal status of the person concerned.

The second leg invoked the general right of free movement of EU citizens set out in the Treaties. But the Court ruled that the Treaty right was subject to secondary legislation. Applying the citizens’ Directive, NA’s EU citizen children could stay if they had ‘sufficient resources’, which could be derived from a parent. There was then a corollary right for a parent to stay with them – reaffirming case law going back to the Court’s well-known Chen and Zhu judgment.

Comments

In this case, Ms NA got to stay in the country – but that wasn’t actually the issue. She was seeking rather the right to permanent residence, but at first sight she will not obtain that. That right applies to a family member who retains a right of residence under the citizens’ Directive following divorce (among other cases). But it’s not clear if it applies to those who are resident only as a corollary to their children under the Directive. And it certainly does not apply to those who are only resident on the basis of the Regulation on free movement of workers, rather than the Directive: the Court said as much in its Alarape judgment.

The bigger problem with this judgment is the scope it opens to Member States to remove the victims of domestic violence from their territory. Ms NA only got the right to stay on the basis of her care for the children, not as a victim of domestic violence. So a victim without children would not have such protection. Also, rather arbitrarily, a victim whose husband had been self-employed, rather than a worker, would not benefit from the free movement of workers Regulation (see the Czop judgment). Moreover, the Court skipped over the point that her second child had not yet been born at the time when her husband left the country. The judgment would not help those victims whose children had been abducted by the husband when he returned to his home State, or who did not have parental responsibility for the children.

The logic of the Court’s analysis is deeply flawed. First, it isn’t self-evident that the rule on divorce is trumped in the event of separation: the EU legislature simply didn’t explain which rule takes precedence in that case. Secondly, the numbers of non-EU citizens with the right to stay will still remain ‘exceptional’, even if it is extended to cover also the (hopefully) small numbers of cases where an EU citizen perpetrates domestic violence against a non-EU citizen and then leaves the country before divorce proceedings start.

Thirdly, the Court’s analysis of the aims of the EU legislation is clearly absurd. True, the right of residence is ‘not at all affected’ by a ‘de facto separation’ – as long as the EU citizen spouse remains in the country. If the EU citizen spouse leaves, according to the Court’s own interpretation, the right of residence isn’t just ‘affected’ – it instantly vanishes entirely. So in that case ‘safeguards’ would be ‘necessary’. Otherwise there could be ‘blackmail accompanied by threats’ of departure, rather than divorce. Did the EU legislature really intend to make that fine distinction: it’s terrible to threaten a non-EU spouse in one case, but perfectly acceptable in the other? Does the humanity of our response to domestic violence rest on that technicality?

This analysis is shared by the Advocate-General’s opinion, which notes that the loss of status ‘could be used as a means of exerting pressure…to wear the victim down psychologically and, in any event, to engender fear of the perpetrator’. The Court’s interpretation could also complicate criminal proceedings, and deprive the victim’s derived right of its effectiveness. Overall that interpretation is ‘manifestly contrary to the objective of legal protection pursued by’ the citizens’ Directive.

Two final points on the broader context. First, the Istanbul Convention on violence against women, which the Commission has proposed that the EU sign, provides for a right of residence in domestic violence cases (see Article 59). There’s no reference to any distinction based on whether the perpetrator has left the country or not. Neither is there any such reference in the explanatory memorandum to the Convention. And why the hell should there be? Who cares where the perpetrator is, in this context? The sole purpose of the Convention – like the relevant clause in the citizens’ Directive – is obviously to help the victim.

Secondly, let’s examine the law from the perspective of the actual victim in this case. She could have preserved her position by bringing divorce proceedings before her husband left the country. But she had just fled her home, five months pregnant with an eleven-month old child. She may well have faced problems relating to work, benefits or accommodation. And on top of all this, the Court of Justice gives the nod to the Home Office to question her immigration status.

With all due respect, this is one of the most shameful judgments in the Court’s long history. It should be revisited at the earliest opportunity, in particular if the EU has concluded the Istanbul Convention in the meantime.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo image: Telegraph.co.uk