Family Reunion For Eu Citizens: A Separated 3Rd Province National Menage Unit Of Measurement Fellow Member Of An Eu Citizen Tin Begin Permanent Residence Condition

Chiara Berneri, Lecturer at BPP Law School

Article 16(2) of Directive 2004/38 (the European Union citizens’ Directive) states that 3rd the world national solid unit of measurement members of European Union citizens who conduct maintain moved to around other Member State tin laissez passer the sack claim permanent residence rights (giving greater protection against expulsion, for instance if they claim social benefits) if they conduct maintain ‘legally resided with’ that European Union citizen ‘for a continuous catamenia of v years’. Can they withal invoke that provision, when, before the death of the v years’ period, the dyad decided to alive apart together with cohabitate alongside unlike partners? Furthermore, tin laissez passer the sack the 3rd the world national claim this correct despite the fact that the continuous catamenia of v years occurred before the transposition of the Directive?

The Court of Justice gave an respond to these crucial questions inwards a judgment of 10 July, Case C-244/13, Ogieriakhi v Minister for Justice together with Equality.

The facts

In May 1999 Mr Ogieriakhi, a Nigerian national, married Ms George, a French national living inwards Ireland. From 1999 till 2001 the 2 lived together inwards Ireland. In August 2011 Ms George moved out together with begun to reside alongside around other man. Soon later on Mr Ogieriakhi started to reside alongside Ms Madden, an Irish Gaelic citizen alongside whom, later on a while, he had a child. The divorce betwixt Mr Ogieriakhi together with Ms George occurred inwards Jan 2009 together with inwards July of the same yr Mr Ogieriakhi together with Ms George got married. The number Mr Ogieriakhi is complaining nearly goes dorsum to 2007 when, later on the deadline for transposition of Directive 2004/38 into national police draw (which was thirty Apr 2006), he applied for permanent residence inwards Republic of Ireland on the the world that he had completed a continuous catamenia of legal residence for v years (between 1999 together with 2004) equally a resultant of his wedlock alongside Ms George.

The Irish Gaelic Minister for Justice together with Equality refused his application on the the world that he did non practise his correct of residence nether the Directive because at that topographic point was no evidence of the fact that during the relevant catamenia his married adult woman was withal exercising her correct of displace together with residence inwards Ireland. As a resultant of this refusal Mr Ogieriakhi was dismissed from his chore because, according to the authorities, he had non whatever correct of residence inwards Ireland. However, inwards 2011, the Minister for Justice together with Equality reviewed its determination of 2007 together with granted him a correct of permanent residence next the Lassal judgment (according to which residency prior 2006 may, inwards principle, hold upwards regarded equally coming together the criterion of a continuous catamenia of residence of v years).

At this phase Mr Ogieriakhi brought an activity for damages before the High Court inwards social club to obtain compensation for the harm he suffered (dismissal from his job) equally a resultant of the failure to transpose the Directive (relying on the instance of Francovich and others). The national courtroom flora that, inwards social club to succeed inwards the action, Mr Ogieriakhi had to demo that at the fourth dimension of his dismissal from his chore he enjoyed a correct of residence for a continuous catamenia of v years. In social club to assess whether this was the case, the national courtroom stayed proceeding together with asked the Court of Justice whether Art 16(2) of the Directive had to hold upwards interpreted equally pregnant that a 3rd the world national who, during the a continuous catamenia of v years before the transposition engagement for the Directive, resided inwards a Member State equally the husband of a Union citizen working inwards that Member State, must hold upwards regarded a having acquired a correct of permanent residence fifty-fifty though, during that period, the European Union husband decided to reside alongside around other somebody together with did non supply anymore the habitation inwards which the 3rd the world national lived.

The Court’s judgment

The Court started its reasoning past times looking at Art 16(2) of Directive 2004/38. It pointed out that the electrical flow interpretation that should hold upwards applied to this article, next the Lassal judgment, is that the continuous periods of v years must hold upwards taken into occupation concern human relationship fifty-fifty when accumulated before the transposition of the Directive, when inwards accordance to the before police draw instruments that the Directive itself “codified, revised together with repealed”.  In other words, inwards social club to beingness able to rely on Art 16(2) for continuous residence accrued before the transposition of the Directive, the 3rd the world national has to satisfy both the atmospheric condition set downwards inwards Art 16(2) of the Directive together with the atmospheric condition set downwards inwards the slice of legislation inwards forcefulness – inwards this instance Regulation 1612/68 on the gratis displace of workers - during the catamenia inwards which the actual residence occurred. 

According to this preamble, the Court inaugural off started to await at whether the atmospheric condition nether the Directive were fulfilled. It pointed out that the acquisition of a correct of permanent residence past times 3rd the world national European Union solid unit of measurement members depends a) on the fact that the Union citizen himself or herself satisfies the atmospheric condition set downwards inwards Art 16(1) of the Directive (namely having resided for a continuous catamenia of v years inwards the host Member State) together with b) on the fact that the 3rd the world national solid unit of measurement fellow member has resided alongside him or her for the inwards a higher house period. According to the Court requirement a) was indisputably satisfied equally it was proved that throughout the relevant catamenia Ms George fulfilled the status set downwards inwards Art 16(1).

As far equally requirement b) was concerned, the Court flora that the relevant number to assess was whether the separation of the spouses during the catamenia concerned precluded the fulfilment of the condition. To laissez passer an respond 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, fifty-fifty if the spouses are separated. In this case, although Ms George together with Mr Ogieriakhi lived separately alongside unlike partners, they were withal married during the relevant catamenia from eleven Oct 1999 together with eleven Oct 2004 together with that was plenty to comply alongside Art 16(2) together with non to brand Mr Ogieriakhi lose his status of solid unit of measurement fellow member accompanying or joining a European Union citizen inwards the host Member State.

Following the opinion of A.G. Bot, the Court stressed likewise around other interesting betoken supporting its argument. The Court pointed out that interpreting Art 16(2) equally beingness fulfilled fifty-fifty when the European Union together with 3rd the world national spouses are withal married but alive alongside other partners is consistent alongside the reach of the Directive itself. As a affair of fact, a to a greater extent than restrictive interpretation of Art 16(2) would non hold upwards consistent alongside Art thirteen together with eighteen of the same Directive, which grant to a greater extent than favourable residence rights to 3rd the world nationals who divorced from their European Union citizen spouses (Art thirteen is nearly retentivity of the correct of residence past times solid unit of measurement members inwards the lawsuit of divorce, annulment of wedlock or termination of registered partnership. See inwards item the atmospheric condition set downwards past times Art 13(2)(a)(b)(c)(d). Art eighteen states that the solid unit of measurement members to whom the atmospheric condition of Art 13(2) apply shall larn the correct of permanent residence later on residing for v consecutive years inwards the host Member State).

Finally, the Court moved on to evaluate whether the atmospheric condition set downwards inwards Regulation 1612/68 were fulfilled. In particular, the Court looked at whether the status imposed past times Art 10(3) – the European Union worker having available for his or her solid unit of measurement a solid unit of measurement housing considered equally normal for whatever worker employed inwards the same region- is satisfied inwards instance the European Union worker together with the 3rd the world national solid unit of measurement fellow member alive separately together with the novel solid of the latter is neither supplied nor provided for past times the European Union worker (note that the citizens’ Directive has since removed this condition). To respond this query the Court followed the Advocate General’s sentiment together with relied on the Diatta case, ane time once to a greater extent than specifying that at that topographic point is no implied requirement for the solid unit of measurement to alive permanently nether the same roof. 

Furthermore, withal inwards line alongside A.G. Bot, the Court referred to the instance of Commission v Germany (which had interpreted Article 10(3) of that Regulation) together with recalled that the requirement to conduct maintain available housing regarded equally normal applies only equally a status nether which each fellow member of the worker’s solid unit of measurement is permitted to come upwards together with alive alongside him or her. This means, equally A.G. Bot explained to a greater extent than extensively inwards the opinion, that if the housing regarded equally normal at the showtime of the cohabitation does non fulfil this requirement anymore equally a resultant of a novel event- such equally inwards this instance the separation of the dyad together with the novel human relationship of Ms George alongside around other man- this cannot Pb to discrimination betwixt Member State’s nationals together with nationals of other Member States.

In low-cal of these considerations the Court concluded that fifty-fifty when the spouses decided to divide together with reside alongside novel partners, the 3rd the world national solid unit of measurement fellow member who has resided for a continuous catamenia of v years inwards a Member State equally the husband of a European Union citizen tin laissez passer the sack larn the correct of permanent residence fifty-fifty if the catamenia of residence occurred before the transposition of the Directive.

Finally, on province liability, the Court concluded that the unproblematic query for preliminary ruling on a affair concerning the transposition of European Union police draw must not, alone, hold upwards considered a decisive constituent inwards determining whether at that topographic point was an obvious infringement of European Union police draw on the business office of the Member State.

Comments

If nosotros await at its outcome, this tin laissez passer the sack hold upwards considered a proficient judgment. As a affair of fact, the Court of Justice ended upwards clarifying the reach of Diatta past times specifying that a 3rd the world national tin laissez passer the sack hold upwards granted the correct of permanent residence non exactly but when he is separated together with non living anymore alongside the European Union citizen but fifty-fifty when they both cohabit alongside other partners. The broadening of Diatta tin laissez passer the sack only hold upwards welcomed, especially past times those who believe that the province should non hold upwards interested inwards how a solid unit of measurement decides to conform its solid unit of measurement life (for instance whether they prefer to alive together or not) equally long equally the wedlock bond is non broken. Although the Court referred dorsum to spouses who were separated before the deadline to transpose the citizens’ Directive, its interpretation is withal relevant to those who were separated later on that deadline, inwards low-cal of its reference to the Iida judgment (which had already applied the Diatta judgment to the Definition of ‘spouse’ inwards the citizens’ Directive) together with its constant instance police draw (see the Metock judgment) insisting that the Directive does non lower standards equally compared to the previous legislation.

On the other side, the reasoning proposed past times the Court lacks of clarity inwards around points. This is peculiarly evident when the Court refers to Commission v Germany. The wording of the Court does non straight off brand clear the argue why this instance is relevant inwards this context. As a affair of fact, it is past times looking at the to a greater extent than extensive explanation of the Advocate General that it is possible to empathise its relevance inwards the circumstances at stake (see the inwards a higher house discussion).

It is likewise worth mentioning that the Court lost a jeopardy to specify clearly the pregnant of Art 16(2) of the Directive, peculiarly alongside regard to the intelligence “with”. According to the Advocate General the intelligence “with” should non hold upwards interpreted literally. Hence, it does non hateful that the 3rd the world national must conduct maintain lived together alongside the European Union citizen for the entire catamenia of v years but it is plenty that he or she has accompanied or joined the European Union citizen inwards the host Member State, despite the fact that they decided [not?] to alive together for the entire catamenia of v years. This specification would conduct maintain been peculiarly useful if nosotros consider that cases non necessarily involving 3rd the world national spouses volition hold upwards perhaps referred to the Court of Justice.

As a affair of fact, equally things stand upwards now, the Court volition hold upwards easily able to rely on Diatta, if needed, to province that a husband should non necessarily alive together alongside the European Union citizen inwards social club to larn the correct of permanent residence. However, equally far equally other solid unit of measurement members are concerned, a similar interpretation of Art 16(2) volition resultant inwards the same outcome: no solid unit of measurement fellow member has to alive together alongside the European Union citizen inwards social club to larn the correct of permanent residence inwards the host Member State.

To conclude, despite these margins for improvement, this judgment should hold upwards considered a proficient and, inwards a way, totally predictable judgment equally it falls inside the lines traced already past times the Court inwards Lassal, Diatta together with Commission v Germany. The interesting rationale upon which Ogieriakhi is based is, equally A.G. Bot clearly pointed out inwards the opinion, to promote social cohesion together with integration non exactly of the European Union citizen but likewise of the 3rd the world national solid unit of measurement member. This is the fundamental role of the Directive that the Court should comport inwards hear for hereafter reference inwards social club to apply the same rationale to potential similar cases.

Barnard & Peers: chapter 13 

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