Extremely Deplorable CJEU Ruling on Domestic Violence

SSHD v NA (Pakistan) [2016] EUECJ C-115/15, EU:C:2016:487 (30 June 2016)

As pointed out by Guild, Peers and Tomkin in The EU Citizenship Directive: A Commentary (2014), Directive 2004/38/EC “has proven to be a fertile ground for litigation, generating increasing, dynamic, and rapidly evolving case-law” (at p. v). This “absurd” judgment about a Pakistani woman who had suffered domestic violence has left the door wide open for would be abusers who leave their third country national spouse stranded in the host member state by returning home. The agonising result of this “shameful ruling” is that a poor abused woman who had been given a talaq could not rely on the CJEU for justice because her husband left the host member state. During the course of these proceedings, the case of Nazia Ahmed (NA) has been reported in the domestic courts as [2013] UKUT 89 (IAC) at the tribunal level and as [2014] EWCA Civ 995 (see here) and [2015] EWCA Civ 140 (see here) in the Court of Appeal. Like countless Pakistani women, NA suffered domestic violence after marrying Khurshid Ahmed (KA) in September 2003. They moved to the UK in March 2004 but KA, who holds German nationality, left the matrimonial home in October 2006 after assaulting NA and in December 2006 he left the UK for good.

Professor Peers observed that it was the first occasion that the court “interpreted the specific rule on domestic violence cases” but he was repulsed by the CJEU’s decision because: “While the victim in NA was able to rely on other provisions of EU law, not all victims will be able to.” Everything seems to be wrong with this judgment because it gives EU citizens unilateral power to exploit their non-EU family members. The CJEU’s preference for a literal approach to retention of residence rights comes at the cost of misunderstanding the social context of the domestic violence rule and women’s hardship and subordination to men. KA purported to divorce NA by a talaq issued in Karachi in March 2007. In September 2008, NA instituted divorce proceedings in the UK; the decree absolute was issued in August 2009 and she was granted custody of the two German national children. The couple’s daughters, MA and IA, were both born in the UK in November 2005 and February 2007 respectively.


An application for permanent residence – on the basis that upon divorce the applicant had retained a right of residence under regulation 10(5) of the 2006 Regulations – made by NA in September 2009 was refused in March 2010. This was because although NA demonstrated that she had worked as a self-employed carer between 2007 and June 2011, she had failed to show that her ex-husband was exercising treaty rights in the UK at the time of the divorce.

To qualify as a family member who had retained the right of residence in the UK under regulation 10 (transposing article 13 of the directive), NA had to show that on her divorce she had ceased to be a family member of an EEA national who was in the UK as a jobseeker, worker, self employed or self sufficient person or student. Since NA’s appeal was allowed on article 8 and other grounds by Lang J her case entailed a question of status rather than simply turning on the right to remain in the UK. The bigger prize for her was the right to permanent residence.

The Court of Appeal referred an assortment of questions to the CJEU. The first of these asked whether, in order to retain a right of residence under the directive, it was mandatory for a third country national ex-spouse of an EU citizen to show that their former spouse was exercising treaty rights in the host member state at the time of their divorce? Secondly, in circumstances where a competent fact finding tribunal holds that the removal of the EU citizen from the host state to his own home EU state would breach his rights under article 7 CFR and article 8 ECHR, is a right to reside in a host state conferred by EU law under articles 20 and 21 TFEU where the only EU state in which the EU citizen may reside is his state of nationality.

Thirdly, where the EU citizen in the preceding question is a minor, does the sole carer parent of that child derive a right of residence in the host state if the child’s removal is caused by that parent’s removal from there. And finally does article 12 of Regulation No 1612/68 (now article 10 of Regulation No 492/2011/EU) provide a right to reside in the host state to a child whose EU citizen parent, with an employment history in the host state, ceased to reside in that state before the child enters education there.

Court of Justice

In relation to divorce cases involving domestic violence, AG Wathelet answered the first question by construing article 13(2)(c) dynamically to mean that the EU citizen spouse of a third country national such as NA does not need to be resident in the host member state, pursuant to article 7(1) of the directive, at the time of the divorce in order for the non-EU spouse to be able to retain a personal right of residence. Under article 13(2)(c) divorce/annulment of marriage shall not cause loss the non-EU spouses right of residence where:

this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting.

The CJEU has been deservedly chastised for not sticking to AG Wathelet’s analysis. In effect it has been attacked for not behaving like a human rights court. As for the rest of the questions, the court did not meander around the AG’s opinion. Intriguingly, Wathelet is a controversial character. As Belgium’s justice minister, he was accused of encouraging the early release of sex offenders and was implicated in a child abuse ring but later absolved of criminality. His decision to authorise the release of Marc Dutroux, a convicted child rapist who went on to reoffend led to calls for his resignation as a CJEU judge, a role he performed from 1993-1995.

Yet despite whatever irregularity may be ascribed to him, AG Wathelet’s greater compassion was observable from his remarks at para 70 that EU citizens should not be given blackmailing powers to use their departure from the host state:

as a means of exerting pressure to stop the divorce at a time when the circumstances are in themselves enough to wear the victim down psychologically and, in any event, to engender fear of the perpetrator of the violence.

First Question

The rationale behind the reply to the first question was that the answer had been provided by Singh and Others (C‑218/14, EU:C:2015:476, see here) where the court decided that where the EU citizen exits the host member state to settle in another member state or elsewhere prior to the initiation of divorce proceedings then the third country national’s derived right of residence ends because of the EU citizen spouse’s departure and can, thus, no longer be retained on the basis of article 13(2)(a). In NA, reiterating the approach in Singh at para 67, the CJEU said at para 35 that a later petition for divorce cannot resurrect that right because article 13 refers only to the “retention” of an existing right of residence. As seen in Spedition Welter (C‑306/12, EU:C:2013:650) the determination of a provision of EU law’s scope depends on its wording, context and objectives and all of these must be taken into account.

Three points stood out. First, the CJEU said the rubric, text and phraseology of article 13(2) is unambiguous that a non-EU family member is entitled to retain her right of residence if divorce occurs and “the conditions laid down in that provision are satisfied”. Moreover, it recalled that on the directive’s adoption the EU legislature rejected making provision for specific safeguards for the non-EU spouse to avail in particularly difficult situations in the event of the EU citizen’s departure from the host state. Finally, the court said at para 45 that the aims of article 13(2) correspond to the preambular objective in recital 15 of safeguarding the legal rights of family members in instances of death of the EU citizen, divorce and so forth with a view to retention of “right of residence exclusively on a personal basis”.

Prior to the directive’s commencement the divorced spouse could be deprived of the right of residence in the host member state. The directive’s history and the explanatory memorandum to the proposal – COM/2001/0257 (final) – behind the directive attested to that fact. The wording, the context and objectives of article 13(2) evince that the provision’s application depended on the parties concerned being divorced.

The proposal’s underlying logic was for article 13(2) to provide legal safeguards to non-EU family members who relied on their relationship for their residence rights and were thus exposed to blackmail accompanied by threats of divorce. Conversely, the protective safeguards were only needed where divorce was a certainty because the non-EU spouse’s residence rights were not affected in cases of de facto separation at all.

Yet, overall, it was not possible to allow the literal, systematic and teleological interpretation to be violated by accepting that the non-EU spouse’s right of residence could be retained where the villainous EU spouse has departed from the host member state after perpetrating domestic violence but divorce proceedings have not as yet been commenced.

So it was clear to the court that where someone like NA had been abused by her EU citizen husband, the tormentor would need to be resident in the host member state – in line with article 7(1) – until the date of the commencement of divorce proceedings for her to be able to rely on article 13(2)(c) of the directive for the retention of her right of residence.

Second and Third Questions

Employing a two-pronged line of argument entrenched in the EU Treaties, NA relied on the court’s case law as settled in Ruiz Zambrano (C‑34/09, EU:C:2011:124) and elsewhere. In Ruiz Zambrano the court held that non-EU family members of EU citizen children who had not exercised the right of freedom of movement were able to derive a right of residence by virtue of their children because such children could not be robbed of the benefits attaching to EU citizenship. Indeed, as the court famously said, article 20 TFEU precludes national measures which deprive EU citizens of the genuine enjoyment of the substance of the rights conferred by EU citizenship.

But this was only a fallback position and it was held that Ruiz Zambrano had no bearing on NA’s case as it concerned a situation where EU legislation was unavailable to safeguard legal rights. Pronouncing the following answer for the second question, the court therefore held that a minor EU citizen resident since birth in the host member state and the non-EU parent in sole custody of the minor do not enjoy a right of residence under article 20 TFEU where they qualify for a right of residence in that member state under a provision of secondary EU law.

The expression “have sufficient resources” under article 7(1)(b) of the directive is understood to mean that the resources must be available to the EU citizen without any conditions as to their origin. Consonant with Alokpa and Moudoulou (C‑86/12, EU:C:2013:645) where a right of residence in a host state is granted by article 21 TFEU and the directive to a minor child holding another member state’s nationality who meets the conditions in article 7(1)(b), the non-EU primary carer parent will be entitled to reside with the child in the host state under those provisions. Similarly, following the rationale in the court’s historic approach in Zhu and Chen (C‑200/02, EU:C:2004:639), refusing a consequential right of residence in the host state to an EU or non-EU parent carer of an EU citizen minor child possessing a right of residence under article 21 TFEU and the directive would deprive the child’s right of residence of any useful effect.

In summary, the court held that the article 21 TFEU confers on a minor EU citizen a right of residence in the host member state so long as the conditions in article 7(1) of the directive are satisfied by him/her; which is a for the national court to decide. If the answer is yes, then article 21 TFEU also allows the primary carer non-EU parent of the minor EU citizen to reside with him/her in the host member state.

Fourth Question

Evaluating the present case against the gamut of authorities – i.e. Teixeira (C‑480/08, EU:C:2010:83), Ibrahim (C‑310/08, EU:C:2010:80), Hadj Ahmed (C‑45/12, EU:C:2013:390) and Baumbast and R (C‑413/99, EU:C:2002:493) – the court held that as MA and IA’s primary carer NA qualified for a right of residence under article 12 of Regulation No 1612/68. Answering the fourth question it held that that provision must be interpreted as meaning that a child and a non-EU national parent with custody of that child are entitled to a right of residence in the host state where the EU parent has worked in that state but ceased to reside there before the child began to attend school there.


The EU Citizenship Directive is a book which at first I read for academic purposes. But I soon discovered that this is a great publication to use in representing EU nationals/family members in all types of situations: including deportation cases. It is a handy key to unlocking the mysteries behind the difficult questions posed by unwieldy free movements law that may bombard you from time to time. Using it along with the CJEU’s case-law search form gives the reader crystal clear insight into every aspect of the directive. It is highly advisable that the home secretary should buy a few copies for her servants, especially in the criminal casework directorate, in order to point them in the right direction. Since it is a light book it is really handy to carry it around.

Peers points out a string of errors committed by the CJEU in NA and he calls the court’s analysis of the aims attributed to EU legislation “absurd”. A colossal anomaly generated by the ruling is it will assist in the expulsion of victims of domestic violence who, unlike NA, do not have children. For Peers, the result is also “deeply flawed” because by virtue of the Czop (C-147/11, EU:C:2012:538) judgment, had NA’s husband been self-employed and not a worker she would not benefit from Regulation No 1612/68. The judgment sheds no light on domestic violence victims’ children being abducted from the host state to the home state by the EU national. Paradoxically, the selective distinctions made by the court have led to it be considered guilty of distorting a uniform approach to domestic violence on the basis of meaningless technicalities.

Perhaps the slippery former justice secretary Micheal Gove was justified in his conclusion that this crude and incomprehensible institution “stands above every nation state” and must be made transparent and accountable.

Speaking of talaq, it first it seemed that a rich woman such as the late Dr Walid Juffali’s wife Christina Estrada – who also got a talaq – could rely on the English courts to give her £75m (53m in cash) for her to meet her “reasonable needs”. But then again, the English may well be right in thinking that a talaq is by definition an evil thing because now because of a twist of fate the former Pirelli calendar model is having to sue her own 13-year old daughter and her step daughters to get her ex-husband’s cash: “Good luck to her getting the money. Walid has died and his estate is in Saudi Arabia,” she has been told (despite the late tycoon having been refused permission to appeal by Lady Hale, Lord Wilson and Lord Reed on 25 May 2016).

By comparison, the actress Amber Heard seems to have done pretty well by settling her domestic abuse accusations against acclaimed film star Johnny Depp for a cool $7m (which she wants to donate to charity) on the eve of the hearing of their case. It was reported that the pirate of the Caribbean sliced off his own fingertip in a fit of rage when he broke some champagne glasses and then used a mixture of his blood and ink to write words on the wall accusing Heard of an extramarital affair. (All that has of course been eclipsed by news of Angelina Jolie’s divorce from Brad Pitt because of “irreconcilable differences”.)

Anyway despite the west’s stereotypes about Arabs and Muslims not all talaq givers will be evil wife beaters. Indeed, there is the possibility of some poor uneducated confused man from rural Pakistan (or elsewhere in Asia or Africa) being oppressed by his mean and modern EU wife and her nasty EU family: what should he do? As for the divorce between the EU and the UK, it is probably the case that the member states are eager to conclude the talaq with the UK but the rotten British are just being insincere as usual and want to buy time to get the best possible deal for themselves.

Professor Peers explains that if no post-Brexit deal is secured on freedom of movement then this judgment will affect the other member states but will not impact the UK. Examining events from NA’s point of view as a victim, he is disgusted that the CJEU has given “the nod to the Home Office to question her immigration status”. It was possible for her to safeguard her position by beginning divorce proceedings prior to her husband KA’s departure from the country. But of course she was not only pregnant but was also caring for an infant and already struggling with problems related to accommodation, benefits or work.

From that angle, even if it is not a human rights court, the CJEU’s erratic judgment is not fit to be described as a decision handed down by a “court of justice” and the expert view is that it must be “revisited at the earliest opportunity, in particular if the EU has concluded the Istanbul Convention in the meantime.”

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, CFR, Citizens Directive, CJEU, Domestic Violence, Employment, Proportionality, Women and tagged , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.