In July 2015 the European Court of Justice delivered an important judgement concerning the preservation of residence rights for third country nationals in the event of a divorce from an EU citizen.
The ECJ ruled that a third country national married to an EU citizen may retain their right to residence in a Member State other than the EU citizen’s own State even if his/herEU spouse leaves that State, provided that divorce proceedings have been commenced before his/her departure. Or, put differently, a third country national married to an EU citizen residing in a Member State other than the EU citizen’s own State can no longer enjoy the right of residence in that State when the EU citizen leaves that State before the commencement of divorce proceedings, in accordance with Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
This judgement relates to the Case C-218/14, which concerns three third country nationals married to EU citizens living in Ireland for over four years (Kuldip Singh and Others vs Minister for Justice and Equality). In all three cases the wife left her husband, left Ireland and sought a divorce in her own country (except for the German citizen, who petitioned for divorce in the United Kingdom). The Irish authorities considered that since the EU citizens had already left Ireland when the divorces were sought, the three foreign husbands had lost their right of residence in Ireland. The three spouses challenged the decisions refusing the retention of their right of residence in Ireland before the High Court of Ireland.
The High Court of Ireland, which was hearing the cases, referred to the European Court of Justice (ECJ) the question of whether the right of residence of the three foreign husbands living in Ireland could be retained if the divorce had taken place after their wives had left the country.
In its judgement, the ECJ noted that based on article 7(2) of the referred Directive, in order to enjoy a right of residence in the Member State in which an EU citizen is exercising his/her right to the freedom of movement (the host Member State), third country nationals who are family members of that EU citizen must accompany or join the citizen in that State. From that statement it follows that if the EU citizen then leaves the host Member State and decides to settle in a different one or in a third country, the foreign spouse no longer fulfils the conditions for enjoying his/her right to residence in the initial host Member State.
However, the Court also observed that, where divorce proceedings are started and the marriage has lasted for at least three years before the commencement of the divorce proceedings, including at least one year in the host Member State, the foreign spouse may, subject to certain conditions, retain the right of residence in that host State on the basis of Article 13(2) of the Directive, both during the divorce proceedings and after the decree of divorce, provided that at the date of commencement of those proceedings he/she was resident in that State as the spouse of an EU citizen accompanying or joining the citizen in that State.