Brussels, 30/06/2016 (Agence Europe) - Third-country nationals lose their right of residence in a member state of the EU if they are married to European citizens who leave that member state and divorce proceedings began after they left, the Court of Justice of the EU stated on Thursday 30 June, this time explicitly stating that the existence of domestic violence does not change this.
In this case (C-115/15), the Court of Justice was asked to clarify its case-law on the rights of a third-country national to reside on the territory of the member states of the Union in a situation in which she has divorced a European citizen. In an earlier ruling, returned in July 2015, the Court had already established that if an EU citizen left the member state in which he or she was resident with his or her foreign spouse before divorce proceedings began, the spouse's right of residency in that state could not be continued (see EUROPE 11362).
Today, the Court was to take position on a similar case, but with the difference that domestic violence had been committed. This case concerns a Pakistani national married to a German national with whom she lived in the United Kingdom. The husband left for Pakistan before suing for divorce from that country, whilst the wife also brought divorce proceedings in the United Kingdom and was granted sole custody of the two daughters of the marriage, who are of German nationality and did not begin their schooling in the United Kingdom until after their father had left.
The Court finds that the British authorities acted incorrectly in denying the wife and her children a permanent residence permit. However, the fact that domestic violence was committed was not used as a criterion to grant the residence permit, as an EU directive (2004/38/EC) provides for this possibility only if the divorce was carried out in the host member state. In the present case, the right of residence should be granted to them simply because the children attended school in the United Kingdom. The date on which they began school and whether their father is present on British soil are not relevant criteria as far as the Court is concerned.
Furthermore, the wife and her children may also invoke another provision of EU law (article 21 TFEU) to be granted rights of residency, as the children are of German nationality. If they used that option, they would only have to prove that they have sufficient resources and full health insurance to be able to reside in the United Kingdom, the Court points out. (Original in French by Jan Kordys)