Last week the Court of Justice of the European Union gave judgment in the case of NA C-115/15 on the vexed issue of retained rights of residence for victims of domestic violence. It is hard to care given the result of the Brexit referendum but it is a very important case for those affected by this difficult situation.
It is a Curate’s Egg of a case. While there are parts that are good and useful, on the central question of protection for victims of domestic violence it is very disappointing. It is all the more disappointing given that it comes on the back of a very enabling and positive Advocate General Opinion, which is now desert air.
The facts involved a lady from Pakistan known only as NA who had married a German national in 2003 and moved to the UK in 2004. The German national was a worker or was self employed during his time in the UK. NA was a victim of domestic violence. In 2006 the German national left the marital home and returned to Germany shortly afterwards.
The couple had two daughters who were born in the UK in 2005 and 2007 and who had German nationality. They attended school in the UK from 2009 and 2010 respectively.
The German national purported to divorce NA by means of a Talaq divorce in 2007. In 2008 NA began divorce proceedings in the UK and divorce was finalised in 2009.
There were four questions referred to the Court.
Retaining rights of residence following divorce
The first of these questions for the court was whether NA had retained rights of residence in the UK under EU law after her German husband had departed and consequently whether she had become permanently resident after five years of residence.
The problem was that the Citizens’ Directive, Directive 2004/38, seems to state that rights of residence are only retained where divorce proceedings are initiated before the EU citizen leaves the country of residence, in this case the UK. Article 13(2) reads as follows:
Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union’s citizen’s family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or
(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.
In the earlier case of Kulip Singh C‑218/14 the Court had already ruled that, despite the ambiguity, under Article 13(2) it is necessary for the divorce to occur before the departure of the EU citizen: the context of the Article is that rights only start to be retained after divorce. See earlier post: EU right of residence where a marriage ends plus source of self sufficiency. If the Union citizen leaves the country before the retained rights can begin, i.e. before divorce, then the family member will have a gap in their residence and has no right to retain under Article 13(2).
Should the same approach in Kulip Singh should be applied to Article 13(2)(c) on particularly difficult circumstances?
The Court refers to Article 12, which provides only for retention of rights in the event of death of a Union citizen, not departure, and concludes that the EU legislature declined to make provision in these circumstances for specific safeguards:
In the light of the foregoing, the answer to the first question is that Article 13(2)(c) of Directive 2004/38 must be interpreted as meaning that a third-country national, who is divorced from a Union citizen at whose hands she has been the victim of domestic violence during the marriage, cannot rely on the retention of her right of residence in the host Member State, on the basis of that provision, where the commencement of divorce proceedings post-dates the departure of the Union citizen spouse from that Member State.
NA therefore did not retain a right of residence on the basis of Article 13(2)(c).
This is a regrettable outcome which seems to defeat the apparent object of the Article and which in practice deprives many victims of domestic violence of the protection of retention of rights of residence.
Retained rights of residence for children in education
The fourth question referred to the Court, but which it deals with second, concerned the circumstances in which a child and therefore a non EU parent might retain rights of residence under a right of access to education.
Under Article 12 of Regulation No 1612/68, the children of a national of a Member State who is or has been employed in the territory of another Member State are to be admitted to the latter State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if those children are residing in the territory of that State.
In the earlier cases of Ibrahim C-310/08 and Teixeira C-480/08 the Court held that this enables the children of former migrant workers to stay in the education system once they have entered it, and the logic of the case of Baumbast C-413/99 is therefore that a parent must also be permitted to remain to care for such children, otherwise the children would effectively be deprived of their right to continue in education.
The Court clarifies that the former migrant worker parent does not need to have been resident in the Member State on the date that the child begins to attend school or university, nor that the parent should continue to be present within that Member State throughout the period of attendance at school or university.
The children in this case therefore did retain a right of residence even though the oldest child had only begun schooling in 2009 and the German parent had departed from the UK in 2006. NA therefore also retained a right of residence as the primary career with sole custody of the children.
Derived rights, Zambrano and source of self sufficiency
The second and third questions for the Court concerned whether NA could derive a Zambrano right of residence through the children, who were German nationals and citizens of the European Union.
NA had argued that the children would be forced to leave the EU if not permitted to stay in the UK, which would violate their rights as Union citizens under Articles 20 and/or 21 of the TFEU. The Upper Tribunal had accepted this submission below but the Home Office had appealed on the basis that the children had a right of residence in Germany and therefore would not be forced to leave the EU because the family could relocate there and NA would benefit from Zambrano rights in that country.
The Court dodges the question for Article 20, finding that it confers no right of residence on a child or parent where they qualify for a right of residence by other means in EU law in any event.
On Article 21, though, the Court uses this as an opportunity to consider the terms on which a Union citizen might be considered self sufficient. In the UK, case law has previously suggested that the self sufficient person must have a source of income independently of a non-EEA parent or family member. In Kuldip Singh the Court suggested that was wrong and that some income might be derived from a non-EEA parent.
In NA the Court goes further:
77 In that regard, the Court has previously held that the expression ‘have’ sufficient resources in that provision must be interpreted as meaning that it suffices that such resources are available to the Union citizen, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided inter alia by the third-country national (judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 74).
78 It follows that, provided that [the children] satisfy the conditions laid down by Directive 2004/38 and, in particular, by Article 7(1) of the directive, either themselves, or through their mother, which it is for the referring court to determine, as German citizens, [the children] can benefit from a right of residence in the United Kingdom, under Article 21 TFEU and Directive 2004/38.
Because the children have a right of residence, so therefore does the parent and NA succeeded in establishing a right of residence by this means as well.
NA is a mixed bag. It is a shame that the Court did not take the opportunity to improve the protection available to victims of domestic violence or to clarify the scope of Zambrano. The ruling on children of a former migrant worker being able to continue education even if that education commenced after the migrant worker left the country is useful, though, as is the clarification on the potential sources of income for a self sufficient person.
Those intending to rely on self sufficiency must still ensure that they have comprehensive sickness insurance, though.
Source: CURIA – Documents