The new case of Kuldip Singh Case C‑218/14 is important on two separate issues: when non EU citizens might retain rights of residence in the event of divorce and on the source of self sufficiency in EU law.
EU free movement law does not only apply to EU citizens but also to their family members from outside the EU. These family members are sometimes referred to by lawyers as “third country nationals” because they come not from the UK, not from the EU country of the EU citizen but from a third country outside the EU. For example, where a French citizen is married to a Brazilian woman, EU free movement law gives the Brazilian woman a right to reside with her husband in EU countries other than France. The policy intention behind these rules for family members is to facilitate and encourage free movement of people around the EU; if people cannot settle down with family members, they will be discouraged from moving in the first place.
These rights of residence for family members of EU citizens are simultaneously powerful but precarious.
The rights are powerful because all that is required is to show the relationship is genuine and that the EU citizen is working, self employed, self sufficient or studying. No additional rules such as language tests, minimum incomes or even immigration status requirements can be imposed. This is why these EU rights are sometimes said to cause “reverse discrimination”: the Frenchman has more right to have his wife reside with him in the UK than an Englishman married to a woman from outside the EU because the Englishman and his wife must meet all the onerous UK domestic immigration rules (unless they make use of Surinder Singh rights, covered elsewhere on this blog).
Further, if the third country national can accrue five years of residence in accordance with free movement laws, he or she will automatically acquire the right of permanent residence. This is only lost if absent for two years or more or if taken away on serious grounds of public policy or public security.
But precarious too
The rights are precarious, though, because for that first five years the rights flow from the EU citizen and his or her economic activities. The third country national has no independent right of residence. If the relationship ends, the EU citizen loses his or her job or leaves the UK, the family member is potentially left with no reside to reside and will be forced to return to his or her home country.
When do family members retain rights of residence?
There are some protections for third country nationals now built into EU free movement law but there are significant gaps and some of the conditions are arbitrary. The protection is described in the UK as “retained rights of residence” and is dealt with at paragraph 10 of the Immigration (EEA) Regulations 2006. This is derived from Article 12 of Directive 2004/38/EC. There are several criteria that need to be met, including that the marriage has lasted at least three years and that the couple resided in the relevant Member State (the UK in our case) for at least one year.
In cases where the marriage breaks down and ends in divorce, these provisions have been interpreted as meaning that if the divorce proceedings began before the EU citizen departed from the country in question (or ceased work, self employment etc) then the third country national would retain a right of EU law residence. If the divorce papers were served a day after the EU citizen had departed, though, the third country national would have no right of residence and would have to go back whence they came.
The problem with this rule is obvious: it is arbitrary and has no bearing on the real world situation of the third country national it is supposed to protect. What does it matter when the divorce papers are served? It also allows the EU citizen to dictate by their actions whether the third country national retains a right of residence or does not.
It is worth mentioning here that where a marriage breaks down and the parties separate but do not divorce, if the EU citizen remains in the country of residence then the right of residence for the third country national continues: the spouses need not cohabit for the right of residence to exist. See Ogieriakhi C‑244/13 and Diatta C-267/83, for example. This reveals a further problem with the supposed protection available, though: if there is no divorce the protected right of residence is not available and it forces the third country national to try and prove that the EU citizen is still resident and is still qualified by working, being self employed and so on. This can be very difficult, as have been discussed previously on the blog and in the forum.
The Court of Justice of the European Union turned its attention to this issue in the case of Kuldip Singh Case C‑218/14. The Court opts to follow a strict textual approach to the question and adopts a strict reading of the retained right of residence:
Article 13(2) of Directive 2004/38 must be interpreted as meaning that a third-country national, divorced from a Union citizen, whose marriage lasted for at least three years before the commencement of divorce proceedings, including at least one year in the host Member State, cannot retain a right of residence in that Member State on the basis of that provision where the commencement of the divorce proceedings is preceded by the departure from that Member State of the spouse who is a Union citizen.
Those who had hoped that the Court might do more to offer protection to third country nationals have had their hopes dashed. Over on the EU Law Analysis blog Professor Steve Peers has taken a look at the judgment and describes it as “highly problematic”:
The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Court to interpret the law in a way which fails to take account of the consequences of the judgment, and leads to results which were surely not intended by the EU legislature.
Peers observes that Article 13 does not deploy an exhaustive list and that the judgment creates a “rush to court” incentive for family members, who will need to initiate divorce proceedings before the EU citizen leaves the country. A reference with the Court is still pending from the UK on a similar issue and may offer another opportunity to re-examine the issue in the near future.
Source of self sufficiency
There is an interesting second issue in Kuldip Singh: can a Union citizen have sufficient resources for himself and his family members not to become a burden on the social assistance system of the host Member State during his period of residence even where those resources derive in part from those of the spouse who is a third-country national?
This is important because the right of free movement is only available for EU citizens in certain circumstances, which includes where the EU citizen can show he or she is self sufficient. In the UK this has sometimes been interpreted as meaning the source of self sufficiency must be independent of any third country family members. Kuldip Singh calls into question the case of Seye (Chen children; employment) France  UKUT 178 (IAC) and the line of cases cited in that determination, including the Court of Appeal cases W (China) and X (China)  EWCA Civ 1494 and Liu and Ors v SSHD  EWCA Civ 1275.
In Kuldip Singh the Court refers to the case of Alokpa and Moudoulou C‑86/12 and goes on:
As the Court has also previously held, an interpretation of the condition concerning the sufficiency of resources as meaning that the person concerned must have such resources himself, without being able to use for that purpose the resources of an accompanying family member, would add to that condition, as formulated in Directive 2004/38, a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and residence guaranteed by Article 21 TFEU…
The actual conclusion is:
Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that a Union citizen has sufficient resources for himself and his family members not to become a burden on the social assistance system of the host Member State during his period of residence even where those resources derive in part from those of his spouse who is a third-country national.
The case does not deal directly with a situation where all of the EU citizen’s resources are derived from a third country national, but the reasoning would seem to extend to such situations. Applying the Kuldip Singh approach, the Directive does not explicitly impose any such additional condition. Similarly, the judgment does not deal with work by a third country national that would be unlawful but for the disputed right of residence of the EU citizen on self sufficiency grounds. One can see that this is a form of circular reasoning but that is the direction in which the Kuldip Singh judgment points.