Brussels, 07/05/2015 (Agence Europe) - A third-country national loses his or her right of residency in a member state if their spouse, who is a citizen of the EU but not of that member state, leaves that country.
This was the conclusion reached by Advocate General Juliane Kokott, which she presented to the Court of Justice of the EU (case C-218/14) on Thursday 7 May. In so doing, Kokott has proposed to untangle a legal issue caused by two provisions, which contradict each other under specific circumstances, of the directive (2004/38/EC) on the right of the citizens of the EU and members of their family to move and reside freely within the territory of the member states.
This particular case concerns three third-country nationals (from India, Cameroon and Egypt) who married citizens of the Union (a Latvian, a German and a Lithuanian) and lived with them in Ireland. In each case, the three EU citizens left their husbands and Ireland, and filed for divorce in their own country or another member state.
The legal tangle in this case arises from the combination of article 12 of the directive, which stipulates that as soon as an EU citizen leaves the territory of a member state other than his or her own, family members who are third-country nationals lose their right of residency in that state, and article 13, which provides that in the event of divorce, family members who are third-country nationals retain their right of residence if the marriage had lasted for at least three years, at least one year of which was spent in the host member state.
The Irish authorities took the view that the three ex-husbands were no longer entitled to reside in Ireland, although all the marriages had lasted for more than four years, including one year spent in Ireland, because the EU citizens had ceased to exercise their right of residency in that country and the divorces were granted after they had left Ireland.
The Advocate General found that taken separately, the two articles contradict each other when applied to this situation. However, the combined application of the two ultimately has the effect of stripping the foreign nationals of their right of residency, according to Kokott.
She argues that the departure of the EU citizen brings about the loss of the right of residency of the spouse remaining in Ireland (article 12). The subsequent divorce petition cannot bring back that right, as article 13 of the directive refers to the retention of the existing right of residency, rather than the renewal of a right of residency which has already expired. (Jan Kordys)