One would think that yet another case called “Singh” – that too in the Court of Justice of the European Union (CJEU) – would probably be met with open arms by enthusiasts of European Union (EU) law. However, the strident answer to the main question in these proceedings probably pours cold water on the hopes of many third country nationals who would like to retain a right of residence under the Citizens’ Directive, 2004/38/EC (the directive). I did not contaminate the post on the English reference pending in C-115/15, NA (Pakistan) with the Irish outcome of this case because that may have offended Theresa May, as everyone knows the Home Secretary (who does not beat about the bush) is a law unto herself and has even been putting David Cameron on the immigration hook. With Survation’s poll showing that 43 percent would vote for Brexit and 40 percent would choose to stay (and 17 percent are undecided), things are looking grim for EU fans. These cases turned on issues relating to retention of residence rights and sufficiency of resources. The EU spouses involved left Ireland to settle in another member state whereas the spouses who were third country nationals chose to remain in Ireland.
The decision in this case is a lead balloon. It has been expertly defined as another “problematic CJEU judgment” in an important field where, as Professor Steve Peers has soulfully argued, the rules on divorce and departure “appear to conflict with each other nearly as much as divorcing couples do.” He found this ruling “simplistic”. Soon after their departure, the EU spouses initiated divorce proceedings that led to the dissolution of the marriages between them and the third country nationals concerned. Kuldip Singh (an Indian), Denzel Njume (a Cameroonian) and Khalid Aly (an Egyptian) were unhappy with the Minister for Justice and Equality’s rejection of their applications for retention of their right of residence in Ireland subsequent to their divorces. The court analysed a medley of authorities including Melloni, C-399/11, EU:C:2013:107, Iida, C-40/11, EU:C:2012:691, O and B, C-456/12, EU:C:2014:135, Alokpa and Moudoulou, C-86/12, EU:C:2013:645 and Zhu and Chen, C-200/02, EU:C:2004:639, Ibrahim, C‑310/08, EU:C:2010:80.
Singh entered as a student, married a Latvian woman in 2005 and was permitted to reside in Ireland for five years as the spouse of a EU citizen; the couple had a child who like Mrs Singh was Latvian. Singh’s business interests meant that he jointly owned a pizzeria which generated income while Mrs Singh cared for their child. When their relationship fell apart Mrs Singh went to Latvia in February 2010, instituted divorce proceedings and their marriage was annulled on 12 May 2011. In December 2011, arguing that he met the requirements Singh sought retention of his permission to remain and permanent residence in Ireland. The application was refused for falling foul of regulation 6(2) of the European Communities (Free Movement of Persons) (No 2) Regulations 2006 transposing the directive into Irish law, the underlying reason was that his ex-wife had left Ireland in 2010. His application was turned down upon review but he was given allowed to remain under national law (and do business) exceptionally for one year in light of his situation.
Apparently Njume claimed asylum in Germany in 2004, only to do the same in Ireland in 2006 but he married in 2007 and was later permitted to reside in Ireland for five years as the spouse of an EU citizen and issued a residence card. Like Singh, Njume also benefitted from the historic ruling in Metock and Others, C-127/08, EU:C:2008:449.
In February 2011, his spouse left for Germany and a month later he contended by way of correspondence to the authorities that he had retained his right of residence in Ireland in the event of his spouse’s departure who he had supported from 2008 to 2011 and lived with since 2006. His wife began divorce proceedings in June 2011; on 21 December 2011 a decree nisi was issued stating that on that date the parties had been found to have lived apart for a continuous period of at least two years immediately preceding the presentation of the divorce petition. Subsequently, on 28 March 2012, a decree absolute was issued and Njume applied for the retention of his right to reside in Ireland. The application was refused but he was given permission (renewable) to remain in Ireland under national law for three years until September 2016.
Aly arrived in Ireland as a visitor in 2007, overstayed for a month, married a Lithuanian national and was granted a five year residence card. His wife’s loss of work lead her to take unemployment benefits; they lived on his earnings, she went to the UK to work in 2011 and the following year Aly informed the Irish authorities that they had separated as she wanted to stay in London but he wanted to remain in Ireland – in reply to which he was told that his permission to remain was being curtailed and he was invited to make representations. In response he said that divorce proceedings were pending in Lithuania, that a decree of divorce would be issued and that he had the right to remain in Ireland pursuant to article 13 of the directive. He was informed that he was not divorced and his right to reside became invalidated with the cessation of his spouse’s exercise of treaty rights: therefore he had not retained a right of residence. His residence card was destroyed and he was prohibited from working. When he commenced judicial review proceedings, he was granted temporary permission to work and remain in 2012. In March 2013 a certificate of divorce was issued.
Of the three questions referred to the CJEU, the first was about whether the non-EU spouse retained their right of residence where divorce followed after the EU national had left the host member state did? Moreover, is the host member state burdened by an EU citizen and her family members, where, relying partly on the non-EU spouse’s resources, the EU spouse argues that she has sufficient resources? The court did not find it necessary to address the third question referred.
In its exposition of the directive, in relation to the first question the court held that article 13(2) meant that divorced third country nationals such as Singh, Njume and Aly do not retain a right of residence. This is so because the EU citizen spouse had left the host member state before the commencement of divorce proceedings. The fact that their marriages lasted for three years before the commencement of divorce proceedings, including at least one year in the host state, did not help them. The answer in relation to article 7(1)(b) was pronounced in less truculent terms and it was held that EU citizens like Singh, Njume and Aly’s ex-wives are considered to have sufficient resources for themselves and their family members and do not become a burden on the social assistance system of the host member state during their period of residence even where those resources derive in part from the earnings of their third country national spouse(s).
In the case of NA (Pakistan), along with three other questions, the following question has been referred by the Court of Appeal (England and Wales) and is awaiting an answer from the CJEU:
Must a third country national ex-spouse of an EU citizen be able to show that their former spouse was exercising treaty rights in the host member state at the time of their divorce in order to retain a right of residence under article 13(2) of Directive 2004/38/EC?
In the instant case the question was framed in the following terms:
Where marriage involving EU and non-EU citizens ends in divorce obtained following departure of the EU citizen from a host state where EU rights were exercised by the EU citizen, and where articles 7 and 13(2)(a) of the directive apply, does the non-EU citizen retain a right of residence in the host Member State thereafter? If the answer is “no”, 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?
The court thought that the EU spouse must reside in the host member state, in accordance with article 7(1) of the directive, until the date on which the divorce is commenced for the third-country national to be able to rely on article 13(2) of the directive. It was clear under case law that the third country national spouse’s rights under the directive were not autonomous and were derived from the exercise of freedom of movement by the EU citizen. Professor Peers points out that unlike Advocate General J Kokott, the CJEU shirks responsibility in discussing the EU Charter of Fundamental Rights, does not remark on article 12 of the directive and also fails to point a way out of the conundrum “by having the non-EU citizen accompany the EU spouse to another member state.”
According to the CJEU – at paras 58 and 65 – that after the EU spouse’s departure, the third country national spouse no longer meets the conditions for enjoying a right of residence in the host member state under article 7(2) of the directive. The court therefore held that:
66. Consequently, it is clear that the spouse who is a Union citizen of a third country national must reside in the host member state, in accordance with article 7(1) of the directive, up to the date of commencement of the divorce proceedings for that third country national to be able to claim the retention of his right of residence in that member state on the basis of article 13(2) of the directive.
67. It follows that, as the Advocate General observes in point 27 of her Opinion, in circumstances such as those at issue in the main proceedings, the departure of the spouse who is a Union citizen has already brought about the loss of the right of residence of the spouse who is a third country national and stays behind in the host member state. The later petition for divorce cannot have the effect of reviving that right, since article 13 of directive 2004/38 mentions only the ‘retention’ of an existing right of residence.
68. That does not mean that, under national law, which may grant more extensive protection, a national of a third country, in circumstances such as those of the main proceedings, may not be authorised — as in the present cases – to continue to reside in the member state concerned.
69. Indeed, in the three cases in the main proceedings, the applicants were, after being divorced, granted temporary permission under national law to reside and work in Ireland, as a result of which they were able to continue to reside there legally, and that permission was in principle renewable, as may be seen from the order for reference.
70. Having regard to the above considerations, the answer to Question 1 is that article 13(2) of the directive 2004/38 must be interpreted as meaning that a third country national, divorced from a Union citizen, whose marriage lasted for at least three years before the commencement of divorce proceedings, including at least one year in the host member state, cannot retain a right of residence in that member state on the basis of that provision where the commencement of the divorce proceedings is preceded by the departure from that member state of the spouse who is a Union citizen.
Professor Peers concludes that by taking an “over-literal” view of the link between divorce and departure the CJEU’s interpretation of the law produces a result which is unintended by the EU legislature. Moreover, legal certainty, a favourite on the court’s menu, is placed in jeopardy as the EU spouse’s exit is not always clear at first blush. The onus is also on the third country national spouse to expeditiously begin divorce proceedings to save their retained right of residence which conflicts with the overall idea that the marriage can be rescued, saved.
So the EU spouse ‘retains’ the higher ground in the marital relationship and can quietly leave the host member state and ditch the third country national. But I have an Israeli friend from Jerusalem who may benefit from this judgment. His marriage with his Lithuanian wife fell apart, but no divorce proceedings yet because she does not want to pay for court and lawyers. Although in light of this judgment she was just better off leaving the UK quietly, she was really stressing him out and wanted to “cancel his visa” (i.e. residence card) and has apparently written to the Home Office demanding exactly that.
That is no problem as my bodybuilder Israeli friend now has yet another tall slim amazon-like Lithuanian girlfriend (and so can get another residence card), but he wants permanent residence now because he meets the waiting period, three years before the commencement of divorce proceedings, including at least one year in the host state. A real Casanova, he also has a partner and daughter in Ukraine and does not want to return to Jerusalem. “It’s too much stress,” he always moans. I really need to tell him that he must begin divorce proceedings immediately!