In May 2015 the Advocate General of the ECJ, Juliane Kokott, resolved an important legal tangle in rules on residency rights in the opinion she presented to the Court of Justice of the European Union concerning the Case C-218/14.
This particular case concerned three third-country nationals from India, Cameroon and Egypt who were married and lived in Ireland, with EU citizens who were not Irish nationals themselves but were in Ireland in exercise of their right of free movement and residence. These third-country nationals were granted permission to reside in Ireland as family members of Union citizens, in accordance with Directive 2004/38/CE on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
After over four years of legal residence in Ireland, all three marriages were broken down and the EU citizens left Ireland without their spouses filing petitions for divorce in their respective countries (i.e. Latvia, the United Kingdom and Lithuania). The three marriages were subsequently dissolved by decree absolute.
In order to be able to remain in Ireland following the marriage dissolution, the three third-country nationals invoked article 13 of Directive 2004/38/EC, but they were refused permission by the Irish authorities, on the basis of the legal perspective that the right of residence is linked to spousal residence and can cease upon the departure of the spouse from Ireland. The case was brought to the attention of the ECJ to answer the following legal question: Is a third-country national who has resided as the spouse of a Union citizen together with him/her her in an EU Member State of which the Union citizen is not a national, entitled to remain in the said State following the permanent departure of the Union citizen, the spouse, and subsequent divorce of the parties?
The answer to that question requires an interpretation of the Directive 2004/38/EC, which governs the retention of the right of residence in the event of departure and/or divorce in two separate provisions: article 12 and article 13, which attest conflicting interpretations. According to article 12, family members who are EU citizens retain their right of residence after the Union citizen’s departure and may acquire the right of permanent residence as long as they do not become a financial burden on the host Member State. Yet the situation is different with regard to family members who are third-country nationals. As it can be inferred from this article, the latter automatically lose their right to residency in a country as soon as their EU citizen relative leaves the territory of the host country, exception made for a very narrow circumstance where there are children involved and they are enrolled at an educational establishment in the host country, until the completion of their studies. In contract with this, article 13 states that in the event of divorce, family members who are third-country nationals retain their right of residence if the marriage has lasted for at least three years, where at least one year has been spent in the host member state. In other words, there is a contradiction with regard to the residency rights of third-country nationals in these two provisions.
The Advocate General Juliane Kokott solved this legal tangle in the opinion she submitted on May 7, 2015 to the ECJ concerning Case C-218/14. In her opinion she argues that under article 12 of the Directive 2004/38, a third-country national loses his/her right of residence in the host Member State if the Union citizen to whom he/she is married departs from that Member State. The fact that the divorce petition between the two is filed at a later stage following the departure cannot reinstate the right of residence, since article 13 only refers to the retention of an existing residency right, and not to the renewal of a residency right that is already revoked.