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New AG Opinion favours protection for victims of domestic violence

The final judgment of the court in SSHD v NA Case C‑115/15 (previously NA (Pakistan) [2015] EWCA Civ 140) will come later this year, but the Advocate General Opinion released today suggests that victims of domestic violence should retain EU law rights of residence even where the EU citizen was not exercising treaty rights in the country concerned at the time of divorce:

(1) In cases where divorce is consecutive to acts of domestic violence, Article 13(2(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC does not require that a European Union citizen who is the spouse of a third country national should himself be resident in the territory of the host Member State, in accordance with Article 7(1) of that directive, at the time of the divorce in order for that third country national to be able to retain a personal right of residence under that provision.

(2) Articles 20 TFEU and 21 TFEU must be interpreted as meaning that they preclude a Member State from denying a third country national a right of residence in its territory where that national has sole responsibility for children who are Union citizens and who have resided with him/her since their birth but who do not possess the nationality of that Member State and have not made use of their right to freedom of movement, in so far as those Union citizens satisfy the conditions laid down in Directive 2004/38 or, failing that, in so far as such a refusal deprives those citizens, in practice, of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens, a matter which it falls to the referring court to determine in the light of all of the circumstances of the present case. If there has been a judicial finding that the removal of the Union citizens concerned would infringe Article 7 of the Charter of Fundamental Rights of the European Union or Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, the national court must take that finding into account.

(3) Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as meaning that a child and, in consequence, the parent having custody of that child enjoy a right of residence in the host Member State where the parent who is a Union citizen and has worked in that Member State has ceased to reside in that Member State before the child enters education there.

Source: CURIA – Documents

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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