Retained Rights of Residence following divorce from an EEA national
Advocate General Kokott has recently given her Opinion in Case C-218/14, Singh, Njume and Aly, 7 May 2015, a case concerning retained rights of residence following divorce from an EEA national.
Messrs Singh, Njume and Aly were all married in Ireland to Union citizens exercising their Treaty rights in Ireland and who were granted permission to reside based on their relationship with their spouses. Each marriage broke down after at least four years living together in Ireland, following which the Union citizen left Ireland and filed for divorce in their home country and decrees absolute were issued.
The ex-husbands relied upon Article 13 of Directive 2004/38 to establish a right of retained residence in Ireland and their applications were refused by the Irish authorities who maintained that their rights of residence lapsed on the departure of their Union citizen spouses.
The High Court of Ireland (considering the cases for judicial review) referred the following questions to the Court:
‘(1) Where marriage involving EU and non-EU citizens ends in divorce obtained following departure of the EU citizen from a host Member State where EU rights were exercised by the EU citizen, and where Articles 7 and 13(2)(a) of Council Directive 2004/38/EC apply, does the non-EU citizen retain a right of residence in the host Member State thereafter? If the answer is in the negative: does the non-EU citizen have a right of residence in the host Member State during the period before divorce following departure of the EU citizen from the host Member State?
(2) Are the requirements of Article 7(1)(b) of Directive 2004/38/EC met where an EU citizen spouse claims to have sufficient resources within the meaning of Article 8(4) of the Directive partly on the basis of the resources of the non-EU citizen spouse?
(3) If the answer to the second question is in the negative: do persons such as the applicants have rights under EU law (apart from the Directive) to work in the host Member State in order to provide or contribute to ‘sufficient resources’ for the purposes of Article 7 of the Directive?’
The AG’s Opinion
The Advocate General considered that the Irish High Court’s first question depended upon whether Article 12 of Directive 2004/38 applies or whether Article 13 of the Directive is wholly relevant. Article 12 offers only very restrictive circumstances in which TCNs can retain a right of residence following the departure of their Union citizen family member, (Article 12(3)) – and none of the spouses had given evidence of having custody of children enrolled at an educational establishment within the UK, so this would not be relevant. Mr Singh had access to his child, but not custody.
If Article 13 applied alone, the answer would be entirely different: following 3 years’ marriage and at least one year in the host Member State, Article 13 in isolation would require neither that the Union citizen and his spouse reside in the host Member State until the divorce proceedings are terminated, nor that the divorce proceedings be initiated and terminated in that State.
Where Articles 12 and 13 are considered together, then Article 13 cannot justify the continuation of the right of residence of the divorced third country nationals – upon the Union citizen’s departure, the right of residence of the spouse would have lapsed, and a subsequent divorce cannot revive it. The Advocate General stated that Article 13 clearly refers to ‘retention’ of an existing right of residence.
The Advocate General did not find that Article 13(2)(a) could not be extended to after the Union citizen spouse’s departure from the host state – after this time, there is no longer a corresponding need for protection on the part of the third-country national, since the very departure of the Union citizen entails the loss by the third-country national of his right of residence in the host Member State. Divorce proceedings being commenced afterwards could not bring about a revival of the ex-spouse’s rights.
Advocate General Kokott found that Article 12 of Directive 2004/38 “lays down exhaustively the circumstances in which the right of residence can be retained by family members after the death or departure of the Union citizen. However, the legislature makes no mention of divorce-related issues in Article 12, but devotes a separate provision to them in Article 13. If divorce-law considerations had called, in addition, for a modified approach to departure cases, it would have been obvious that the EU legislature should also make that explicitly clear.” (para 33)
The Advocate General’s interpretation of Articles 12 and 13 is in accordance with the wording of Directive 2004/38, and it is unlikely that the CJEU will depart from her conclusions.
Impact within the UK
The UK implements the Articles in its Immigration (EEA) Regulations. Regulation 10 contains the relevant transposition:
Regulation 10 – Family member who has retained the right of residence
(5) A person satisfies the conditions in this paragraph if—
(a)he ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence on the termination of the marriage or civil partnership of that person;
(b)he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c)he satisfies the condition in paragraph (6); and
(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(6) The condition in this paragraph is that the person—
(a)is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6;
The UK Regulations are in line with the Advocate General’s interpretation – as the TCN spouses were not residing as family members of an EEA national on the date of divorce (as their spouses had left the host Member State), they would not have been residing in accordance with the Regulations, and thus would not have retained a right under the UK’s interpretation.
For advice and assistance in relation to an application or appeal based on a retained right of residence, contact our specialist EEA free movement immigration barristers in London.