On the 16th of July 2015, the Court of Justice of the European Union (CJEU) delivered its judgment in Singh and Others, concerning the divorce of a Union citizen and a third-country national and the retention of the right of residence of the third-country national in the host Member State. It involved three cases in which a third-country national was married to a Union citizen. The couples had all lived in Ireland (the host Member State) for more than four years before the marriage ended. When the couples separated, the EU citizen wives left Ireland and their non-EU citizen husbands behind, and filed for divorce from their respective new residences.
The three applicants relied on Article 13 of the Directive 2004/38 to remain in Ireland. Article 13(2)(a) of the Directive 2004/38 states that third-country national spouses retain their right of residence in the host Member State if “prior to the initiation of the divorce … proceedings … the marriage … has lasted at least three years, including one year in the host Member State”. The Irish authorities however refused the three husbands’ claim for a right of the residence.
The High Court of Ireland referred the following question to the CJEU:
“1. Where marriage involving EU and non-EU citizens ends in divorce obtained following departure of the EU citizen from a host Member State where EU rights were exercised by the EU citizen, and where Articles 7 and 13(2)(a) of Council Directive 2004/38/EC 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 held that a third-country national cannot retain the right of residence under Article 13(2)(a) in the host Member State where the Union citizen spouse has left that State before filing for divorce, even if the marriage lasted for a minimum of three years, including at least one year in the host Member State (Singh and Others, para 70). The Court gave the following reasoning:
Article 7(2) of the Directive 2004/38 states that non-EU citizen family members who accompany or join an EU citizen in the host Member State derive a right of residence in that State. The right of residence of a family member is therefore guaranteed only in the host Member State in which the Union citizen resides (Singh and Others, para 55). Thus if an EU citizen leaves the host Member State and moves elsewhere, the non-EU citizen spouse “no longer meets the conditions for enjoying a right of residence in the host Member State under Article 7(2)” (Singh and Others, para 58).
Article 13(2)(a) states, however, that a third-country national may retain their residence right in case of a divorce. The Court here sided with the Advocate General Kokott’s argument that as the third-country national had already lost the right of residence when the Union citizen spouse left the host Member State, the “later petition for divorce cannot have the effect of reviving that right”, especially because Article 13 concerns only the retention of the right (Singh and Others, para 67; AG Kokott’s Opinion, para 27).
This case makes it very clear that residence rights of third-country nationals are truly derived rights, which stem solely from the rights given to the Union citizen. As the Court says: “The purpose and justification of those derived rights are based on the fact that a refusal to allow such rights would be liable to interfere with the Union citizen’s freedom of movement by discouraging him from exercising his rights of entry into and residence in the host Member State” (Singh and Others, para 50). The rights of the family member do not stand on their own. Once the Union citizen has left the host Member State, there is no real obligation on that State to continue hosting the non-EU family member.
The Court’s reasoning in this decision is puzzling. Paragraph 61 of the decision reads as follows: “The reference in that provision [Article 13(2)(a)] to, first, ‘the host Member State’, […] and, secondly, ‘initiation of the divorce … proceedings’ necessarily implies that the right of residence of the Union citizen’s spouse who is a third-country national can be retained on the basis of Article 13(2)(a) of Directive 2004/38 only if the Member State in which that national resides is the ‘host Member State’ […] on the date of commencement of the divorce proceedings” (emphasis added). This argument is overly succinct and requires further explanation, especially because Advocate General Kokott states the exact opposite: “According to its wording Article 13 of the Directive 2004/38 requires neither that the Union citizen and his spouse reside in the host Member State until the divorce proceedings are terminated nor that the divorce proceedings be initiated and terminated in that State” (para 25). Looking at the wording of the provision (see the second paragraph of the this post above), I would agree with the Advocate General here. It seems quite farfetched to argue that the provision “necessarily” implies that the divorce proceedings need to begin in the host Member State.
Furthermore, there is no real discussion of the different interests at play here, notably there is no visible consideration of recital 15 of the Preamble of Directive 2004/38 which states that “Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership”. The reasoning of the Court seems very condensed and is therefore quite difficult to follow.
The Advocate General Kokott’s Opinion, which coincidentally comes to the same conclusion as the Court’s decision, has a much more developed and nuanced discussion and gives a full explanation as to why the wording of the Directive does not protect the residence right of a third-country national spouse, whose Union citizen spouse has left the State before filing for divorce.
The Advocate General’s starting point is that both Article 12 and 13 of the Directive could potentially be relevant in the present case. Article 12 concerns the retention of the residence right of a third-country national family member in case of the departure of the Union citizen. However, the only case in which non-EU citizen family members do not lose their residence right after the EU citizen has left the host Member State is if they have the custody over children who have yet to finish their education (Article 12(3)). This does not apply to the case here (see AG Kokott’s Opinion para 19). Article 13 then deals with the retention of the residence right in case of divorce, which – as seen above – could definitely be relevant in the present case.
The facts of the present case therefore deal with the overlap of the Article 12 and 13. Advocate General Kokott argues that Article 12 “lays down exhaustively the circumstances in which the right of residence can be retained by family members after the death or departure of the Union citizen” and there is “no mention of divorce-related issues”, which are then dealt with in the following provisions (para 33). She infers therefore that “Article 13 is intended, in principle, to apply only to cases where both spouses are still residing in the host Member State until the time of the divorce” (para 32). She assumes that “the third-country national’s right of residence under Article 12 … has, as a rule already lapsed when the Union citizen petitions for divorce only after his/her departure” (para 34). This is a strict and close reading of the provisions of the Directive. The decision of the Court can therefore only really be understood in conjunction with the Advocate General’s Opinion.
It remains the case – and Advocate General Kokott acknowledges this (para 40) – that this interpretation of the Directive results in an inequality between the third-country national who is fortunate enough that his or her divorce proceedings commence before his or her Union citizen spouse leaves the country and the third-country national who is not so lucky. It leads to the peculiar consequence that the decision as to whether a non-EU citizen spouse has the right to stay in the host Member State lies with the Union citizen and his or her decision to file for divorce before or after having left the host State. Whilst this is a bizarre outcome, it is a valid reading of the Directive.
PhD Researcher, European University Institute
 It should be noted that the Irish court also referred two further questions to the Court of Justice, asking whether the third-country national spouse could contribute the “sufficient resources”-requirement of a Union citizen laid out in Article 7(1)(b) of the Directive. Here the answer of the Court was fairly straightforward, citing C-86/12 Alokpa and Moudoulou para 27, where it had previously held that to fulfil the requirement to have sufficient resources “it suffices that such resources are available to the Union citizen” and that Article 7 lays down no requirement as to their origin.
 It is briefly mentioned, but not discussed, in paragraph 60 of the decision.