Traditionally, parents determine their children’s right to reside in a host-State. This means that a child’s right to remain in a host-State is intrinsically linked to the presence of those parents in their host-State. This changed for the
This contribution seeks an alternative reading of Article 13(2)(c) of the Citizens Directive to that offered by the Court of Justice in the
Traditionally children derive their residence right in a State of which they are not a national, the so-called host-State, from the residence entitlements of their parent(s). European Union (
Likewise, in the Chen case the Court of Justice extended a child’s right to remain in a host-Member State as an economic inactive
would deprive the child’s right of residence of any useful effect [as i]t is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host-Member State for the duration of such residence.4
As it is the national court that has to assess whether there are sufficient resources and a health insurance, there is no conclusive answer to the question whether
In 2011 the Court of Justice introduced the so-called ‘genuine enjoyment-test’, the third avenue available to third-country national primary carers to derive an
Although it is welcomed that the Court of Justice recognises children as rights bearers and givers, it is sad that that Court does nothing for
This contribution seeks to answer the question whether an alternative interpretation—i.e. a different one than the one given by the Court of Justice in the
2 A Restrictive Reading of a Victim of Domestic Violence’s Right to Remain in the Citizens Directive
2.1 Introducing the
na Case; Facts and Legal Framework
The key question which the Court of Justice has to answer in the
When her divorce is final,
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 citizen’s family members who are not nationals of a Member State where (..) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting.12
The application for a right to remain under the terms of Article 13(2)(c) of the Citizens Directive is made even though
At the time of the ruling, the Court of Justice had only handed down one other case in which it had been requested to interpret Article 13(2) of the Citizens Directive, the Kuldip Singh case.16 Its findings in this case are used and developed by the Court of Justice in the
2.2 The Kuldip Singh-Ruling
2.2.1 Introducing the Facts and Legal Framework
The Kuldip Singh case concerned the right to remain in Ireland of four former third-country national spouses of
prior to initiation of the divorce or annulment proceedings or termination of the registered partnership (...), the marriage or registered partnership has lasted at least three years, including one year in the host-Member State.
The Court of Justice’s interpretation of Article 13(2)(a) of the Citizens Directive in the Kuldip Singh case is premised on the limited personal scope of that Directive. First of all, third-country nationals have to qualify as a family member of an
a refusal to allow such rights [read: derived rights for third-country national family members] 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.20
The notion of effectiveness as it is used here by the Court of Justice to justify that both the third-country national family member and the
are a family member within the meaning of Article 2(2) of the Citizens Directive; and
‘accompany’ or ‘join’ an
eu-citizen to/in the latter’s host-Member State.
The legal basis for the third-country national’s right to remain is Article 7(2) of the Citizens Directive that reads: ‘The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host-Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c).’ Although there is no obligation to actually live together in the host-Member State to qualify for protection as the spouse of an
2.2.2 Filing for Divorce Prior to the
eu-Citizen’s Departure from the Host-Member State
The two phrases in Article 13(2)(a) of the Citizens Directive which are crucial in the Court of Justice’s reading of that provision in the Kuldip Singh case are: ‘the host-Member State’ and ‘initiation of divorce ... proceedings’ which, read together, restrict the protection offered by that provision to cases where
the spouse who is a Union citizen of a third-country national (…) reside[s] in the host-Member State, in accordance with Article 7(1) of Directive 2004/38/
ec, up to the date of commencement of the divorce proceedings for that third-country national is to be able to claim the retention of his or her right of residence in that Member State, on the basis of Article 13(2) of the directive.24
The Court of Justice’s reading of Article 7(2) of the Citizens Directive is that it merely provides for the retention of an existing residence right. The
Though there are good reasons to question the Court of Justice’s interpretation of Article 13(2)(a) of the Citizens Directive (infra, § 2.4), for now, the analysis will focus on the reasons given by that Court in the
na: Developing the Kuldip Singh Rule
Relying on its findings in the Kuldip Singh case, the Court of Justice subjects the right to remain as a victim of domestic violence in Article 13(2)(c) of the Citizens Directive to the condition that an application for divorce has been made prior to the
Both the literal and contextual analysis of Article 13(2) of the Citizens Directive provided by the Court of Justice in the
A third-country national family member only benefits from the protection offered by the Citizens Directive in an
eu-citizen’s host-Member State when and for as long as he/she resides there with that eu-citizen; and
Article 13(2) of the Citizens Directive only provides a right to remain if divorce proceedings are lodged prior to the departure of the
eu-citizen spouse from the host-Member State as it is designed to provide protection if the third-country national enjoys an existing right to remain in that Member State.
After reiterating this case law, the Court of Justice concludes that Article 13(2)(c) of the Citizens Directive must be ‘interpreted in the light of the whole first sub-paragraph of Article 13(2).’28 For the literal reading of the right to remain in sub-section (c) this means that both the heading and text of that provision dictate that to obtain a right to remain a third-country national must satisfy the conditions laid down in that provision. If this is the case, then ‘divorce does not entail loss of such a right of residence’.29
The contextual analysis moves beyond the Court of Justice’s findings in the Kuldip Singh case. After reiterating the implications of the derived nature of a third-country national family member’s right to reside under the Citizens Directive, the Court of Justice reads Article 13(2) in combination with Article 12 of that Directive. The latter provision sets out when family members can remain in the host-Member State on the occasion of an
it is therefore clear that, when that directive was adopted, the
eulegislature declined to make provision, in the event of the departure from the host-Member State of the Union citizen, for specific safeguards that would be available, on account of, inter alia, particularly difficult situations, to his family members who do not have the nationality of a Member State, that would be comparable to those provided for in Article 13(2)(c) of Directive 2004/38/ ec.30
What the Court of Justice remains silent on, is that Article 12(3) of the Citizens Directive provides for the retention of the right to remain if the
The Court of Justice completes its reasoning in consideration 45 where it spells out the objective of Article 13(2) of the Citizens Directive, reading this provision in combination with recital 15 of the Citizens Directive. This recital reads:
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. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.
The combined effect of recital 15 and Article 13(2) of the Citizens Directive is to provide legal safeguards to family members in the event of the death and on the breakup of a relationship if they are ‘already residing within the territory of the host-Member State [allowing them to] retain their right of residence exclusively on a personal basis’ if the family members themselves satisfy the conditions in Article 7(1)(a), (b) or (c) of the Citizens Directive.
Moving from the objective of Article 13(2) of the Citizens Directive to its drafting history the Court of Justice continues its reasoning in consideration 46 as follows. Drawing from the European Commission’s explanatory memorandum it points out that under the predecessors of the Citizens Directive ‘the divorced spouse could be deprived of the right of residence in the host-Member State’. It is this gap in the protection of a spouse that Article 13(2) of the Citizens Directive aims to fill by providing
certain legal safeguards to third-country nationals whose right of residence was dependent on a family relationship by marriage and who could therefore be open to blackmail accompanied by threats of divorce, and that safeguards were necessary only in the event of final divorce, since, in the event of de facto separation, the right of residence of a spouse who is a third-country national is not at all affected.31
Notwithstanding this acknowledgement that the very purpose why third-country national family members are protected on the occasion of a breakdown of their relationship, the Court of Justice’s states in consideration 48 that
an interpretation of Article 13(2)(c) of Directive 2004/38/
ecto the effect that a third-country national is entitled to rely on the right derived from that provision where her spouse, who is a Union citizen, has resided in the host Member State, in accordance with Article 7(1) of Directive 2004/38, not until the date of the commencement of divorce proceedings but, at the latest, until the date when the domestic violence occurred, is contrary to the literal, systematic and teleological interpretation of Article 13(2) of Directive 2004/38/ ec.
As Article 13(2)(c) of the Citizens Directive ‘is dependent on the parties concerned being divorced’, this means that the
2.4 An Appraisal
Although the Court of Justice does consider the drafting history of Article 13(2)(c) of the Citizens Directive where it establishes that its purpose is ‘to offer certain legal safeguards to third-country nationals whose right of residence was dependent on a family relationship by marriage and who could therefore be open to blackmail accompanied by threats of divorce’,33 the consequence of the Court of Justice’s reading given to this provision is, however, precisely the opposite. The restrictive reading offered by the Court of Justice, so it is argued, serves the perpetrator rather than the victim, as a threat to leave the host-Member State is easily made by the perpetrator to keep the victim of domestic violence in check if there is any mentioning of reporting the incident(s) to the police or any other person or authority. The question is whether this restrictive reading is the only one that is legally sound.
2.4.1 Challenging the Literal Reading
Let us start with the first paragraph of Article 13(2) of the Citizens Directive. According to the Court of Justice’s reading of this provision in both the Kuldip Singh and the
But what is preserved by using the word ‘retention’ in the heading of Article 13 of the Citizens Directive. To answer this question we must relate the word ‘retention’ to the wording used in the first paragraph of Article 13(2) of the Citizens Directives, namely ‘divorce … shall not entail loss of the right of residence of a Union citizen’s family members ..’. Read in this context the conclusion could just as easily have been the opposite; namely that through the operation of Article 13(2) of the Citizens Directive the right that family members derive from Article 7(2) of that Directive in the first place is not lost at all the moment that any one of the four situations listed in sub-sections a-d of Article 13(2) of the Citizens Directive occurs. This reading is not only justified by the choice of wording used in the English text of this provision, but is also justified by the choice of words used in the Dutch (‘… leiden scheiding, ontbinding of nietigverklaring van het huwelijk ... niet tot verlies van het verblijfsrecht van de familieleden....’), French (‘le divorce, l’annulation du marriage ... n’entraîne pas la perte du droit de séjour des membres de la famille d’un citoyen de l’Union’), and German (‘… führt die Scheidung oder Aufhebung der Ehe … für Familienangehörige eines Unionsbürgers … nicht zum Verlust des Aufenthaltsrechts’) text of this section. A literal reading of this provision could, therefore, also justify the conclusion that reliance on Article 13(2) of the Citizens Directive is possible if and when one of the four situations listed in sub a–d occurs.
The operation of the law would mean that the residence right derived from Article 7(2) of the Citizens Directive whilst in a relationship with an
From the facts given in the Court of Justice’s judgment it is not possible to establish whether
2.4.2 Analogous Application of the Kuldip Singh Ruling
My second comment concerns the seemingly ease with which the Court of Justice applies its reading of Article 13(2)(a) of the Citizens Directive in the Kuldip Singh case by analogy to the right to remain accorded to victims of domestic violence, notwithstanding the difference in wording used in the two sub-sections. Where sub-section (a) provides that the right of residence is not lost where ‘prior to initiation of the divorce … the marriage … has lasted three years, including one year in the host-Member State (emphasis added)’, sub-section (c), merely refers to situations which should not entail the loss of a residence right if ‘this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage … was subsisting’.
The crucial difference between the two sub-sections is that the word ‘divorce’ is not used in sub-section (c). As the moment that the divorce proceeding is initiated, is crucial in the Court of Justice’s reading of this sub-section, in my opinion, this difference in wording should not have been overlooked by that court. Even if we acknowledge that a literal reading of Article 13(2)(a) of the Citizens Directive merits the conclusion that the
2.4.3 Protecting the Perpetrator or the Victim, that is the Question?
My third point concerns the reading given to Article 13(2)(c) of the Citizens Directive by the Court of Justice where it relies on the drafting history. Reiterating, the drafting history reveals that the very purpose of Article 13(2)(c) of the Citizens Directive is to protect victims of domestic violence against threats of divorce35 or violence which they continue to endure for fear of losing their right of residence36 by their
Bearing this in mind, I find it difficult to comprehend why the Court of Justice feels that ‘safeguards were necessary only in the event of final divorce, since, in the event of de facto separation, the right of residence of a spouse who is a third-country national is not at all affected’.38 This might hold true for some divorces, as was the case in the 1985 Diatta case where the Court of Justice established that only a de iure separation requires reconsideration of a family member’s right of residence because
2.4.4 The Declaratory Nature of Residence Rights
My fourth point is that a reading of Article 13(2) of the Citizens Directive that ensures protection for the victim of domestic violence is also justified by the case law of the Court of Justice on the declaratory nature of the right to free movement accorded to
According to the Court of Justice’s case law,
If, as a general rule, there is a right of residence the very moment that beneficiaries of free movement rights satisfy the conditions subject to which there is a right of residence, then this would mean that third-country national family members enjoy a right to remain, as provided for by Article 13(2) of the Citizens Directive, the moment that the conditions, subject to which a right to remain is accorded to them in that provision, are satisfied. For victims of domestic violence this means that the only factor that determines whether they can rely on Article 13(2)(c) of the Citizens Directive is the occurrence of domestic violence when they are married to an
Admittedly, this reading will require defining what domestic violence is, but this is a task that also needs to be accomplished, however difficult this might be, if the whereabouts of the
As far as the right to remain in Article 13(2)(a) of the Citizens Directive is concerned, applying the doctrine of the declaratory nature of residence rights to this sub-section means that whenever a marriage breaks up that has lasted for at least three years before proceedings to end the marriage were initiated, a third-country national spouse can remain in the host-Member State if s/he has lived in that Member State for one year as a family member of an
2.4.5 Limiting the Scope of the Proposed Reading
On a final note it is acknowledged that the observant reader can justly argue that the broad reading of Article 13(2)(c) of the Citizens Directive proposed in this section could mean that a third-country national can claim a right to re-enter and remain in a Member State where s/he has resided at some time in the past whilst in a relationship with an
3 Derived Residence Rights for Caring Parents: Revisiting the Case Law
The analysis of the
The Court of Justice also considers that
3.2 Ensuring the Effectiveness of a Child’s Right to Education
3.2.1 Introducing the Baumbast and R Families
As said in the introduction, the first time that the Court of Justice recognised children as bearers of personal residence rights was in the Baumbast & R case. This ruling concerns two families. The first is the Baumbast family that consists of a German father, a Columbian mother and two children. The eldest, Maria, is the daughter of Mrs Baumbast and holds the Columbian nationality. The youngest, Idanella, is the daughter of both Mr & Mrs Baumbast and is both a Columbian and a German national. Like the Baumbast family, the R family consists of four people, the French father, the mother who is a
Whilst resident in the
to prevent a child of a citizen of the Union from continuing his education in the host-Member State by refusing him permission to remain might dissuade that citizen from exercising the rights to freedom of movement laid down in Article [45
tfeu] and would therefore create an obstacle to the effective exercise of the freedom thus guaranteed by the tfeu.48
This is only half the story as the children need to be cared for when in education and for this reason need their primary carer in their host-Member State to look after them. The Court of Justice, again invoking the principle of effective rights, extends the right to equal treatment and access to education and the complementary right to remain for the purpose of completing their education which children of a (former) worker enjoy by virtue of Article 10 Regulation (
3.2.2 Fine-Tuning the Baumbast-Ruling
The first opportunity offered to the Court of Justice to develop its Baumbast-ruling was in 2010 when it was asked to adjudicate in the Teixeira and the Ibrahim cases. In the Teixeira case the Court of Justice clarifies that the entry into force and expiry of the implementing period for the Citizens Directive do not affect the right to remain that children and their parents derive (indirectly) from (then) Article 12 of Regulation (
On the substance the Court of Justice first clarifies that the enjoyment of the right to equal access to education in the host-Member States ‘depends on the child first being installed in the host-Member State in [his/her] capacity of [a member] of the family of a migrant worker’.53 It notes that children who have resided with their
it is enough that the child who is in education in the host Member State became installed there when one of his or her parents was exercising rights of residence there as a migrant worker. The child’s right of residence in that State in order to attend educational courses there, in accordance with Article [10 of Regulation No [492/2011], and consequently the right of residence of the parent who is the child’s primary carer, cannot therefore be subject to the condition that one of the child’s parents worked as a migrant worker in the host Member State on the date on which the child started in education.55
In its Teixeira-ruling the Court of Justice also establishes that the primary carer’s derived right to remain ends once the children have completed their education. This follows from the purpose to extend the right to remain to the primary carer, namely to ensure ‘the best possible conditions’ for the children’s education. When this moment occurs depends on the facts of each individual case and is not necessarily linked to the day that child reaches the age of majority.56 ‘[I]f the child continues to need the presence and the care of that parent in order to be able to pursue and complete his or her education’, then that parent’s right to remain continues to exist.57 Facts which are identified by the Court of Justice which determine whether a child needs the care of the primary care are ‘the age of the child, whether the child is residing in the family home or whether the child needs financial or emotional support from the parent in order to be able to continue and to complete his education’.58 In the Teixeira case the Court of Justice also adds to our understanding of the right to remain that is derived from Article 10 of Regulation (
Two important limitations follow from the Court of Justice’s ruling in the Ahmed case. First of all children born from a previous relationship of the third-country national parent do not qualify as a family member in the descending line of the
There are two further limitations to the right to remain ex Article 10 of Regulation (
3.3 An Appraisal
The Court of Justice’s broad reading of the rights derived from Article 10 Regulation (
The Chen case law could solve this residence gap. As the
na Case in the Light of Future International Obligations
By linking the right to remain in Article 13(2)(c) of Directive 2004/38/
In § 2.4.4 it was suggested that the Court of Justice could have relied on its case law on the declaratory nature of free movement rights to achieve a victim oriented reading of the right to remain in Article 13(2)(c) of the Citizens Directive. Applying the case law on the declaratory nature of free movement rights would allow the Court of Justice to conclude that residence in the host-Member State as a spouse of an
The Convention on Domestic Violence entered into force on 1 August 2014 and now binds fourteen Member States.68 In March 2016, the Commission published its proposal on the
take the necessary legislative or other measures to ensure that victims whose residence status depends on that of the spouse or partner as recognised by internal law, in the event of the dissolution of the marriage or the relationship, are granted in the event of particularly difficult circumstances, upon application, an autonomous residence permit irrespective of the duration of the marriage or the relationship. The conditions relating to the granting and duration of the autonomous residence permit are established by internal law.
Article 59(2) of the Convention on Domestic Violence requires Contracting Parties to
take the necessary legislative or other measures to ensure that victims may obtain the suspension of expulsion proceedings initiated in relation to a residence status dependent on that of the spouse or partner as recognised by internal law to enable them to apply for an autonomous residence permit.
Although Article 78(2) of this Convention provides Contracting Parties with an option to ‘make a reservation not to apply or to apply only in specific cases or conditions the provisions laid down in … Article 59’, from the available documents it does not appear that the
Not subjecting the right to remain as a victim of domestic violence to the condition that divorce proceedings have been lodged prior to the departure of the
would send a strong political message about the
eu’s commitment to combating violence against women, create coherence between its internal and external action, as well as complementarity between national and eulevels, and reinforce its credibility and accountability towards its international partners. It would also consolidate the eu’s action targeting violence against women by achieving a more coordinated approach internally and giving it a more effective role in international fora.71
If there is a political commitment to ensure the protection of victims of domestic violence, then the legal challenge is to provide them with a right that aims to protect them which they can enforce, if necessary in court.
This contribution has set out how the Court of Justice could have just as easily reached a victim oriented reading of the right to remain in Article 13(2) of the Citizens Directive relying on the wording and drafting history of this provision. In addition, the declaratory nature of free movement rights and in the future the
Article 7(1)(b) of Directive 2004/38/
Article 3(2) Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, 16 September 1963,
Written Observations on behalf of the AIRE Centre in the preliminary reference by the Court of Appeal of England and Wales in the Appeal between Nazia Ahmed (‘NA’ (Pakistan’)—appellant—and Secretary of State for the Home Department—Respondent, Case C-115/15, § 16 and the Annex to these Observations with examples of request for advice on the right to remain following a breakdown of a relationship with an
In this contribution where marriage is used in relation to Article 13(2)(c) of the Citizens Directive it should be read as also including registered partnerships.
Charter of Fundamental Rights of the European Union,
Court of Appeal (Civil Division) Decision, the Secretary of State for the Home Department (Appellant) and
Written Observations Aire Centre, nt. 9, p. 2, point No. 3.
Article 3(1) Directive 2004/38/
Kuldip Singh, nt. 16, cons 50. See also: O & B, nt. 18, cons. 36 & 45.
Kuldip Singh, nt. 16, cons. 50–56.
Ibidem, cons. 57–58.
Ibidem, cons. 66.
Ibidem, cons. 67.
Ibidem, cons. 17, 20 & 49.
Ibidem, cons. 38.
Ibidem, cons. 40.
Ibidem, cons. 44.
Ibidem, cons. 47.
Ibidem, cons. 50.
Ibidem, cons. 47.
See: Collins Cobuild, English Language Dictionary (Collins Publishers, London/Glasgow).
Amended Proposal for a Directive of the European Parliament and of the Council on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States, Brussels 15 April 2003, 2001/0111 (
Proposal for a European Parliament and Council Directive on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States, Brussels 23 May 2001, 2001/0111 (
See, for instance:
Dias, nt. 39, cons. 54.
Articles 8(5)(b) and 10(2)(b) Directive 2004/38/
Ibidem, cons. 73–74.
Baumbast, nt. 1 cons. 60–62.
At the time of the Baumbast case, the relevant provision was Article 12 Regulation (
Baumbast, nt. 1, cons. 52.
Ibidem, cons. 71. Confirmed in:
Baumbast, nt. 1, cons. 73. Confirmed in: Ibrahim, nt. 49, cons. 31.
Teixeira, nt. 49, cons. 43.
Teixeira, nt. 49, cons. 45.
Ibidem, cons. 45–46.
Ibidem, cons. 74. See also: Czop & Punakova, nt. 52, cons. 26.
Teixeira, nt. 49, cons. 78.
Ibidem, cons. 86 and Alarape, nt. 52, cons. 28.
Alarape, nt. 52, cons. 30.
Teixeira, nt. 49, cons. 86 & Alarape, nt. 52, cons. 28.
Ahmed, nt. 52, cons. 49–51.
Ibidem, cons. 52. With reference to: Czop & Punakova, nt. 52, cons. 29.
Ahmed, nt. 52, cons. 39–40.
Czop & Punakova, nt. 52, cons. 33.
Teixeira, nt. 49, cons. 86. See also: Alarape, nt. 52, cons. 28.
Czop & Punakova, nt, 52, cons. 29 and Ahmed, nt. 52, cons. 52.
Baumbast, nt. 1, cons. 45–46.
Chen, nt. 4, cons. 30;
http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures, last consulted: 1 October 2017.
Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence, 4 March 2016,
The dates of ratification and entry inforce for the