Irreconcilable Differences? Divorce In Addition To Difference Of Eu Citizens Nether The Citizens’ Directive

 

Steve Peers

What happens when a matrimony betwixt an European Union citizen (who has moved to to a greater extent than or less other Member State) as well as a non-EU citizen ends, later the European Union citizen has already left that Member State? The European Union Citizens’ Directive contains rules on both issues (divorce as well as departure), but those rules seem to conflict amongst each other nearly every bit much every bit divorcing couples do. An Advocate-General’s opinion today inwards the of import representative of Singh addresses these issues (there is a reference pending from the Britain on these issues also). But unfortunately, this thought is fundamentally flawed, as well as the Court of Justice should pick out an solely unlike approach than the ane which the Advocate-General recommends.

Background

EU complimentary movement legislation, inwards the shape of the Citizens’ Directive, gives European Union citizens the right (subject to sure conditions) to displace to to a greater extent than or less other Member State, joined or accompanied past times their husband as well as other specified identify unit of measurement members. But what happens if that matrimony ends? According to the CJEU representative police pull get-go amongst Diatta, a ‘spouse’ remains a husband (and thus withal entitled to derived complimentary movement rights, if that husband is a non-EU citizen) fifty-fifty if the twain inwards interrogation is separated, upward until the engagement when the divorce becomes final. After the divorce, the Court ruled inwards representative police pull starting amongst Baumbast that since the Regulation on complimentary movement of workers gives the children of European Union workers (or erstwhile workers) a right of access to education, they were entitled to rest on the territory to do that right, as well as the non-EU bring upward who cared for that kid had a right to rest too (regardless of whatever divorce from the European Union citizen), otherwise the child’s right would live ineffective.

Other cases where a matrimony betwixt an European Union citizen as well as a non-EU citizen goal are regulated past times the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU identify unit of measurement members to retain residence rights inwards to a greater extent than or less cases if the citizen dies. Article 12(3) provides for the non-EU identify unit of measurement members to retain residence rights if at that spot are children left behind who are withal studying, where the European Union citizen dies or leaves the host Member State. Article 13(2) so specifies the right to remain of non-EU identify unit of measurement members, inwards the lawsuit of divorce or goal of a registered partnership. There are iv option possibilities for retaining the right of residence inwards this case. The initiatory of all possibility allows the right to live retained if the matrimony or partnership has lasted at to the lowest degree 3 years, including at to the lowest degree ane inwards the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After v years’ legal residence, the non-EU identify unit of measurement members obtain permanent residence status; the complications arise inwards the menstruation beforehand).

The Singh case, referred from the Irish Gaelic courts, concerns 3 divorcing couples. In each case, the European Union citizen initiatory of all of all departed Ireland, leaving the non-EU husband behind, as well as then initiated divorce proceedings.  So inwards a representative involving both a difference as well as a divorce, what rules regulation the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustive listing of cases where a non-EU identify unit of measurement fellow member tin retain residence rights later an European Union citizen leaves the host Member State (presumably leaving aside the Regulation on complimentary movement of workers, which is only relevant when at that spot are also children involved). Conversely, the Advocate-General believes that Article thirteen ‘is intended, inwards principle, to apply only to cases where both spouses are withal residing inwards the host State until the fourth dimension of the divorce’. If the European Union legislature had wanted to create an exception to the rules on difference for cases relating to divorce, it would remove maintain done so expressly.  So Article thirteen tin only apply where a divorce claim is made before the European Union citizen leaves the host Member State. Articles 12 as well as thirteen tin only live applied together inwards the cases referred to inwards Article 12(3), ie where the European Union citizen has departed as well as at that spot are children inwards education. This analysis is supported for reasons of legal certainty: it cannot live clear when an European Union citizen departs that a matrimony volition goal inwards divorce or not.

Therefore, inwards the Advocate-General’s view, in ane lawsuit an European Union citizen departs from that State without initiatory of all initiating divorce proceedings, the non-EU citizen left behind loses the right to reside nether European Union law. On the other hand, if the divorce proceedings are initiated before the European Union citizen leaves that Member State, so Article 13(2) applies as well as the non-EU ex-spouses volition retain a right to rest if they run into the other weather laid out there. She admits the inequity inwards distinguishing betwixt these ii cases. However, problems could live avoided if the non-EU citizen accompanied the European Union citizen, or began divorce proceedings inwards the host Member State earlier the European Union citizen left.

She also rejects whatever relevance of the right to identify unit of measurement life as well as person life referred to inwards Article seven of the European Union Charter of Fundamental Rights, since at that spot is no identify unit of measurement life to protect whatever longer inwards the representative of a divorce. However, the Charter would protect the seat of a non-EU husband inwards an ‘intact’ matrimony amongst an European Union citizen who had moved to to a greater extent than or less other Member State.

Finally, the thought confirms prior representative police pull to the effect that an European Union citizen tin also rely on resources provided past times his or her non-EU identify unit of measurement fellow member inwards monastic enjoin to qualify for complimentary movement rights.

Comments

With groovy respect, this thought is highly problematic. The starting dot is an over-literal interpretation of the human relationship betwixt the rules on difference as well as divorce inwards the European Union citizens’ Directive. This leads the Advocate-General to propose an interpretation which fails to pick out draw of piece of work organisation human relationship of the consequences of her argument, as well as leads to results which were for sure non intended past times the European Union legislature.

Let’s start amongst the purportedly literal interpretation of the Directive. In fact, at that spot is cipher inwards the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly dot that it sets out an exhaustive listing of cases where non-EU citizens larn to rest despite the European Union citizens’ departure. We tin plow the Advocate-General’s declaration on its caput here: if the European Union legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would remove maintain done so expressly. Anyway, ii of the iv grounds for obtaining legal residence inwards the lawsuit of divorce (access to children as well as custody of children) volition commonly cross over amongst the grounds to remain later difference referred to inwards Article 12(3). If Article 12(3) were the only Blue Planet for the right to rest later departure, the reference to these cases inwards Article 13(2) is thus largely redundant.

As for the declaration based on legal certainty, applying a dominion based on ‘departure’ of an European Union citizen exactly does non create whatever such certainty either. The Advocate-General herself argues for an exception where a matrimony is intact despite a cross-border separation, but how tin nosotros know if that is the case?  How long a menstruation inwards to a greater extent than or less other Member State is necessary to count every bit a ‘departure’? What if the European Union citizen decides to come upward dorsum to the host State? What almost cases where the European Union citizen steps exterior for the proverbial pack of cigarettes – as well as so goes missing?

Furthermore, the heart as well as soul of the Advocate-General’s ain declaration is legally unclear. She mostly refers mostly to the difference on an European Union citizen from a Member State taking precedence over the rules on divorce laid out inwards Article 13(2). But at ane point, she makes a distinction based on whether the divorce application was filed earlier or later the European Union citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other 3 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. Anyway, her credence that the timing of the application for divorce mightiness live relevant for the interpretation of the rules on difference undercuts her basic declaration that Article 12(3) constitutes the only footing for non-EU citizens retaining a right of residence next the European Union citizen’s departure.

What almost the Advocate-General’s suggested solutions? It would live highly awkward, to say the least, to facial expression the estranged non-EU husband to accompany his or her identify unit of measurement fellow member to to a greater extent than or less other Member State, fifty-fifty though (according to the CJEU’s representative law) they would non remove maintain to alive nether the same roof inwards that country. In whatever event, the identify unit of measurement fellow member would non remove maintain a right (under European Union law) to accompany an European Union citizen who moved to a third dry ground (besides those covered past times European Union complimentary movement rules: the EEA states as well as Switzerland). And it would live outrageous to conclude that the estranged non-EU husband should follow an European Union citizen inwards domestic violence cases.

The Advocate-General doesn’t lift the possibility that the non-EU identify unit of measurement fellow member could obtain rights nether the EU’s long-term residence Directive, past times adding periods of prior legal rest inwards that Member State to the fourth dimension spent every bit the identify unit of measurement fellow member of an European Union citizen. But non all non-EU citizens remove maintain had such a menstruation of prior legal stay; as well as that Directive anyway does non apply to the UK, Republic of Ireland as well as Denmark.

The prospect of the non-EU husband bringing divorce proceedings initiatory of all depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where ane 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 to a greater extent than or less cases, volition non remove maintain jurisdiction. Anyway, it is non unreasonable to facial expression the non-EU citizen concerned to devote his or her efforts to saving the matrimony – 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).  Also, for the reasons already laid out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would hateful that bringing proceedings initiatory of all could non do goodness those amongst custody of children, access rights to children or domestic violence issues.

Finally, it should live noted that the Advocate-General’s interpretation of the European Union Charter analysis is exactly wrong: Article seven (which corresponds to Article 8 of the ECHR) does non apply only every bit regards identify unit of measurement life, but also private life. This includes all the relationships which a foreigner has built upward inwards a State, fifty-fifty if he or she no longer has identify unit of measurement members there: watch the Slivenko judgment, for instance.

So what is the right approach to this issue? Admittedly, the Directive is real unclear almost the human relationship betwixt divorce as well as departure. But the rules on divorce would lose much of their effet utile if they ceased to apply exactly because the European Union citizen left the dry ground – peculiarly given that the whole dot of European Union police pull inwards this champaign is to promote such complimentary movement inwards the initiatory of all place. The best agency to reconcile the ii sets of rules is to dominion Article 13(2) tin confer a right of residence where a divorce application has been lodged inside a reasonable menstruation later the European Union citizen has left the country. That’s undeniably vague. But the Directive is total of vague rules, such every bit the require 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 Advocate-General’s option of relying upon the amorphous concept of ‘departure’ isn’t whatever to a greater extent than precise anyway.

 

Picture credit: salon.com

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