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

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

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.

Comments

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