Divorce Too Costless Elbow Grease Law: A Problematic Cjeu Judgment

Steve Peers

Yesterday’s CJEU ruling inwards Singh addresses an of import issue: What happens when a wedlock betwixt an European Union citizen (who has moved to about other Member State) as well as a non-EU citizen ends, after the European Union citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce as well as departure), but those rules seem to conflict alongside each other nearly every bit much every bit divorcing couples do. Unfortunately the Court of Justice chose the simplistic approach to this issue, next its Advocate-General’s opinion. My comments below thus are adapted from my before comments on that opinion. (Note that at that spot is also a reference pending from the U.K. on these issues).

Background

EU costless motility legislation, inwards the shape of the Citizens’ Directive, gives European Union citizens the correct (subject to sure conditions) to displace to about other Member State, joined or accompanied past times their husband as well as other specified household unit of measurement members. But what happens if that wedlock ends? According to the CJEU illustration police pull outset with Diatta, a ‘spouse’ remains a husband (and thus even so entitled to derived costless motility rights, if that husband is a non-EU citizen) fifty-fifty if the dyad inwards query is separated, upwards until the appointment when the divorce becomes final. After the divorce, the Court ruled inwards illustration police pull starting alongside Baumbast that since the Regulation on costless motility of workers gives the children of European Union workers (or one-time workers) a correct of access to education, they were entitled to remain on the territory to do that right, as well as the non-EU raise who cared for that kid had a correct to remain likewise (regardless of whatever divorce from the European Union citizen), otherwise the child’s correct would live ineffective.

Other cases where a wedlock betwixt an European Union citizen as well as a non-EU citizen destination are regulated past times the citizens’ Directive (if the European Union citizen has moved to about other Member State). Article 12(2) of that Directive provides for the non-EU household unit of measurement members to retain residence rights inwards about cases if the citizen dies. Article 12(3) provides for the non-EU household unit of measurement members to retain residence rights if at that spot are children left behind who are even so studying, where the European Union citizen dies or leaves the host Member State. Article 13(2) as well as so specifies the correct to remain of non-EU household unit of measurement members, inwards the lawsuit of divorce or destination of a registered partnership. There are 4 option possibilities for retaining the correct of residence inwards this case. The inaugural off possibility allows the correct to live retained if the wedlock or partnership has lasted at to the lowest degree 3 years, including at to the lowest degree i inwards the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After 5 years’ legal residence, the non-EU household unit of measurement members obtain permanent residence status; the complications arise inwards the menstruum beforehand).

The Singh case, referred from the Irish Gaelic courts, concerns 3 divorcing couples. In each case, the criteria inwards Article 13(2) are met, except that the European Union citizen inaugural off of all departed Ireland, leaving the non-EU husband behind, as well as then initiated divorce proceedings.  So inwards a illustration involving both a divergence as well as a divorce, what rules regulation the situation?

The judgment

The Court rules that inwards regulation third-country national household unit of measurement members of an European Union citizen who has moved to about other Member State lose their correct to reside at that spot nether the Directive every bit shortly every bit the European Union citizen moves out of that country. Therefore Article 13(2) does non protect them unless divorce proceedings own got started before that European Union citizen leaves (assuming that the waiting menstruum status laid out inwards Article 13(2) has also been satisfied). The after divorce petition cannot revive the correct of residence, since Article xiii talks solely nearly ‘reviving’ rights. However, it is opened upwards to a Member State to live to a greater extent than generous if it wishes to, every bit Republic of Ireland was inwards this situation.

Unlike the Advocate-General, the Court doesn’t verbalize over the possible relevance of the European Union Charter of Fundamental Rights. Nor does it comment on Article 12 of the Directive, or the regulation of legal certainty, or advise solving the job past times having the non-EU citizen accompany the European Union husband to about other Member State.

Next, the Court reiterates prior illustration police pull that the European Union citizen as well as his or her household unit of measurement even so own got rights nether European Union costless motility police pull fifty-fifty if the European Union citizen is non working but the non-EU husband is, thereby providing ‘sufficient resources’ for the European Union citizen, for the European Union citizen doesn’t own got to live the root of those resources himself or herself.

Comments

With slap-up respect, this judgment is highly problematic. The starting indicate is an over-literal interpretation of the human relationship betwixt the rules on divergence as well as divorce inwards the European Union citizens’ Directive. This leads the Court to translate the police pull inwards a way which fails to accept concern human relationship of the consequences of the judgment, as well as leads to results which were certainly non intended past times the European Union legislature.

The starting indicate is the manifestly wording of Article 13(2)(a) of the Directive, which inwards no way states that the European Union citizen has to live introduce inwards the host Member State when divorce proceedings begin. It solely refers to the amount of fourth dimension that the wedlock has subsisted, including fourth dimension inwards the host State.

To determine whether the divergence of an European Union citizen before those proceedings start way that the non-EU household unit of measurement fellow member loses his or her rights, the Court should own got interpreted Article 12(3), which specifically sets out rules on divergence of European Union citizens. However, that provision doesn’t advise (by way of words similar ‘only’ or ‘except where’) that it sets out an exhaustive list of cases where non-EU household unit of measurement members instruct to remain despite the European Union citizen’s departure. Arguably, if the European Union legislature had wanted to do an exception to the rules on divorce for cases relating to departure, it would own got done so expressly. Anyway, 2 of the 4 grounds for obtaining legal residence inwards the lawsuit of divorce (access to children as well as custody of children) volition unremarkably cross over alongside the grounds to remain after divergence referred to inwards Article 12(3). If Article 12(3) were the solely the world for the correct to remain after departure, the reference to these cases inwards Article 13(2) is thus largely redundant.

The Court’s ruling creates problems for legal certainty, because it volition non ever live clear if an European Union citizen has left the country. What if the wedlock is initially intact despite a cross-border separation, (the persuasion suggested an exception for such cases)? How long a menstruum inwards about other Member State is necessary to count every bit a ‘departure’? What if the European Union citizen decides to come upwards dorsum to the host State? What nearly cases where the European Union citizen steps exterior for the proverbial pack of cigarettes – as well as and so goes missing? How tin give the sack nosotros live sure that the European Union citizen is no longer inwards the host Member State? Who has the burden of proof inwards such cases – the host State’s authorities, or the household unit of measurement fellow member who has been deserted?

It’s hitting that for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Does the Singh ruling hateful that fifty-fifty if these hardship cases, the third-country national household unit of measurement fellow member loses rights every bit shortly every bit the European Union citizen has departed?

It should live noted that the third-country nationals concerned may own got rights nether other provisions of European Union law, for instance if they are refugees, Turkish citizens covered past times the European Union association understanding alongside Turkey, or maybe long-term residents who could obtain rights nether the European Union long-term residents’ Directive past times adding periods of prior legal remain inwards that Member State to the fourth dimension spent every bit the household unit of measurement fellow member of an European Union citizen. The latter Directive does non apply inwards Republic of Ireland (or the U.K. or Denmark), but could live relevant for people inwards the same seat inwards other Member States. As noted above, they would also own got rights if they are the carers of children of an European Union citizen inwards the host State, or permanent residents nether the European Union Directive.

The Court’s ruling creates a ‘rush to court’ incentive for the non-EU spouse, who volition postulate to convey divorce proceedings before the European Union citizen leaves the country. The EU’s rules on civil jurisdiction inwards divorce cases give jurisdiction to the courts of the Member State where i or both spouses are ‘habitually resident’. But that term is non defined inwards the Regulation, as well as so it mightiness live argued that the courts of the host State, at to the lowest degree inwards about cases, volition non own got jurisdiction. Anyway, it is non unreasonable to await the non-EU citizen concerned to devote his or her efforts to saving the wedlock – as well as it’s fifty-fifty possible that he or she is unaware of the problems inwards it (where an European Union citizen is having an affair, for instance).  

So what should the Court own got ruled? Admittedly, the Directive is really unclear nearly the human relationship betwixt divorce as well as departure. But the rules on divorce lose much of their effet utile if they cease to apply only because the European Union citizen left the terra firma – especially given that the whole indicate of European Union police pull inwards this champaign is to promote such costless motility inwards the inaugural off place. The ameliorate way to reconcile the 2 sets of rules would own got been to dominion that Article 13(2) tin give the sack confer a correct of residence where a divorce application has been lodged inside a reasonable menstruum after the European Union citizen has left the country. That’s undeniably vague. But the Directive is total of vague rules, such every bit the postulate to assess whether at that spot is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, every bit pointed out above, the Court’s approach of relying upon the amorphous concept of ‘departure’ isn’t whatever to a greater extent than precise anyway.

 

Picture credit: Telegraph

Barnard & Peers: chapter 13

Share this post