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EEA Retained Rights: Divorce and Domestic Violence

NA is a citizen of Pakistan, and was married to a German national from 2003 until a purported talaq divorce in March 2007, with divorce proceedings in the UK instituted by NA in September 2008, with decree absolute issued on 4 August 2009.  NA and her husband moved to the UK in March 2004, she was the victim of domestic violence and finally left the matrimonial home around October 2006.  NA’s husband left the UK in December 2006.  Two German children were born to the couple in November 2005 and February 2007, and NA was granted custody of both children following divorce.  Both children are attending school within the UK.

The Court of Appeal heard the NA (Pakistan)[2015] EWCA Civ 140appeal on the 19th and 20th of January 2015, with Lord Justice Sullivan delivering the judgment.

Before the Court of Appeal it was “common ground” that the Upper Trubanal’s conclusion that NA had a Zambrano right to remain in the UK was wrong, because both of NA’s daughters were German and thus entitled to live in Germany, where NA would be able to claim a Zambrano right of residence.

During the hearing, the Appellant advanced a further submission, which had not been raised before the Upper Tribunal: that Articles 20/21 of the Treaty were engaged on the facts of NA’s own case, by reason of her prior lawful residence in the UK with her dependent German children, in consequence of KA’s exercise of his free movement rights.  Any curtailment of NA’s rights of residence under the Directive had to be in accordance with EU law, and it would not be in accordance with EU law to remove NA from the UK in breach of her rights under Article 8.

It was not suggested that there was any Article of the Directive which arguably gave NA a right of residence in the UK.

The Court considered whether NA could have derived a right from Article 12 of Regulation 1612/68, despite the fact that the EEA National had left the UK prior to the commencement of her children’s education:

The Court of Appeal posed the following questions to the CJEU:

  1. Does an EU citizen have a right to reside in a host member state under Articles 20 and 21 of the TFEU in circumstances where the only state within the EU in which the citizen is entitled to reside is his state of nationality, but there is a finding of fact by a competent tribunal that the removal of the citizen from the host member state to his state of nationality would breach his rights under Article 8 of the ECHR or Article 7 of the Charter?
  2. If the EU citizen in (1) (above) is a child, does the parent having sole care of that child have a derived right of residence in the host member state if the child would have to accompany the parent on removal of the parent from the host member state?
  3. Does a child have a right to reside in the host Member State pursuant to Article 12 of Regulation 1612/68 EEC (now Article 10 of Regulation 492/2011/EU) if the child’s Union citizen parent, who has been employed in the host Member State, has ceased to reside in the host Member State before the child enters education in that state?

Opinion of Advocate General Wathelet

The Advocate General delivered his Opinion on 14 April 2016.  The AG did not find that the second and third questions were purely hypothetical, and thus asked the Court to consider the questions raised by the Court of Appeal to be admissible.  This post focuses on the retained rights element of the Opinion.

First question referred – retained rights

The Advocate General identified that only one preliminary ruling question had asked about Article 13 of Directive 2004/38 – (Singh and Others).  The initiation of divorce proceedings made after the departure of the EEA national does not revive the right of residence of the third-country national spouse.   As the AG observed, “it is not the acts of divorce, annulment of marriage or termination of a registered partnership as such which enable family members to retain their right of residence, but the specific situations detailed in the first subparagraph of Article 13(2) of Directive 2004/38”.

The Advocate General explored the objective pursued by the retained rights provisions with regard to domestic violence and blackmail of divorce and his conclusion was in paragraph 82:

“in the event that divorce is consecutive to domestic violence, Article 13(2)(c) of Directive 2004/38 does not require that a Union citizen who is the spouse of a third country national should himself be resident in the territory of the host Member State, in accordance with Article 7(1) of that directive, at the time of the divorce in order for that third country national to be able to retain a personal right of residence under that provision.”

The teleological approach of the Advocate General aimed to ensure the effectiveness of Article 13(2)(c) of the Directive.  It was not the approach taken in Singh, where focus was on the wording rather than intention behind the Directive, but means that the victims of domestic violence may have protection under EU law, even if their EU spouses leave before divorce proceedings are filed.

It is yet to be seen if the Court of Justice will follow this approach.

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