Court of Justice clarifies non-EU citizens’ rights of residence following divorce

17 Jul 2015 | by Claire Alderman

Katie Drummond, Pupil barrister, Monckton/Government Legal Department

On 16 July 2015 the Grand Chamber of the Court of Justice handed down its judgment in a request for a preliminary ruling from the Irish High Court on the Citizenship Directive (2004/38). The case concerns the circumstances in which a non-EU spouse of an EU citizen retains a right of residence in a host member state when the EU citizen dies, departs or divorces him.

The three appellants, non-EU citizens, had married EU citizens who at the time were exercising their treaty rights by living and working in Ireland. In each case, the marriage had broken down, the EU citizen had left Ireland, and a divorce was subsequently obtained.

The Irish government, supported by the UK government, argued that the appellants’ right of residence ceased when the EU citizen left Ireland, having regard to the provisions in Article 12 of the Directive on death and departure. The appellants argued that they should in fact be considered under Article 13, which concerns retention of residence after divorce, and that under that provision they retained a right to reside.

The CJEU agreed with the interpretation put forward by the Irish and UK governments that the departure of the EU citizens in the present cases had brought an end to the non-EU spouses’ right of residence, and that it could not be revived by subsequent divorce proceedings. The retained right of residence under Article 13 only applies if the divorce proceedings are commenced while both spouses are present in the host member state.

The CJEU’s judgment clarifies the position of a third country spouse in a host member state where his or her marriage to an EU citizen breaks down and the latter leaves the host state prior to divorce. In doing so, it reaffirms the important principle that the EU law rights of third country nationals are not autonomous, but are derived from the exercise of free movement rights by an EU citizen.

The full judgment is available here: Singh and Others v Minister for Justice and Equality.

Gerry Facenna and Ben Lask represented the UK Government.