24 Oct 2016, 33 mins ago

The Grand Chamber of the Court of Justice of the European Union in Kuldip Singh considered two issues relevant to non-EU national family members of EU citizens. The first question was whether the non-EU spouse of an EU national could retain a right of residence after divorce if the EU spouse had left the Member State beforehand. The second question concerned whether an EU citizen exercising self-sufficiency rights could use the resources of a non-EU spouse to show that he and his family members would not become a burden on the social assistance system of the host Member State.

Retained right of residence

In order to encourage free movement of people around the EU, a non-EU family member of an EU citizen exercising Treaty rights will be given the right of residence in any EU country, irrespective of their nationality. As the spouse of an EU citizen, you are only required to show that the relationship is genuine, and that the EU citizen is working, self-employed, self-sufficient or studying. This is not the case if you are the spouse of a British citizen where you would, in addition, have to meet a minimum English language requirement and a minimum income threshold. As such, if a non-EU citizen is married to a French person, for example, they have more of a right to live in the UK than if they were married to a British citizen where the non-EU citizen would be required to meet the extensive UK domestic immigration rules.

If a non-EU citizen can accumulate five years of residence in accordance with EU free movement laws, they will automatically acquire permanent residence. However, what happens if the relationship ends?

It is long established (since Diatta v Land Berlin [1985] ECR 567) that the separated non-EU spouse of an EU national exercising their free movement rights is entitled to reside in the host Member State even after separation from their spouse provided they both remain in that Member State.

Until relatively recently though, the non-EU spouse’s right to reside was considered to terminate upon divorce. However, a degree of protection was provided to divorced non-EU spouses by the Free Movement of Citizens Directive 2004/38/EC, Article 13(2)(a), which states that divorce, annulment of marriage or termination of a registered partnership shall not entail loss of the right of residence of a Union citizen’s non-EU family members where, 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.

This retained right of residence has been transposed into UK law through Article 10 of the Immigration (EEA Regulations) 2006. Under the Regulations, the non-EU family member satisfies the conditions of this paragraph and retains their right of residence if “prior to the initiation of the proceedings for the termination of the marriage…the marriage had lasted for at least three years and the parties to the marriage had resided in the United Kingdom for at least one year during its duration”. These provisions have been interpreted as meaning that if the divorce proceedings began before the EU citizen departed the UK, then the non-EU national would retain a right of residence. However, if divorce papers are lodged after the EU national has left the UK, the non-EU national has no right to retain residence. Additionally, as per Diatta v Land Berlin above, if the marriage breaks down, but the couple do not end their marriage in divorce, if the EU citizen remains in the UK, then the right of residence continues for their spouse, irrespective of whether their marriage is subsisting.

In Kuldip Singh, the case concerned three families who had been residing in Ireland as the family members of EU spouses exercising free movement rights. In each case, the relationships had broken down and the EU spouses had left the host Member State before the commencement of divorce proceedings.

The question for the CJEU was whether the non-EU nationals could benefit from Article 13(2) in circumstances where the marriage had lasted for at last three years before the commencement of divorce proceedings, including at least one year in the host Member State, but the divorce was preceded by the departure of the EU spouse from that Member State. The question arose because there is no reference in Article 13(2) itself to any requirement that the EU spouse be in the same country as the non-EU family members.

The CJEU pointed out that the non-EU family members’ right to reside in the host Member State only arose in the first place because of the fact that they were accompanying or joining an EU citizen exercising free movement rights. In particular, ‘the host Member State” is defined in Article 2(3) of the Directive as meaning “the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence”. The Court also considered that it was implicit in the reference in Article 13 to initiation of the divorce proceedings that the right of residence of the non-EU spouse can be retained only if the Member State in which the EU national resides is the ‘host Member State’, as defined in Article 2(3), on the date of commencement of the divorce proceedings. This would not be the case if, before the commencement of the proceedings, the EU spouse left the Member State in which his non-EU spouse resided to settle in another country.

One unfortunate consequence of this decision is that an EU citizen can effectively dictate whether their non-EU spouse will retain a right of residence in the UK simply by leaving the UK before commencing their divorce proceedings if the marriage has lasted for less than three years or if the partners have resided in the UK for less than a year.


On a separate question, the Court also considered whether an EU citizen could qualify for a right of residence in a host Member State on the basis of self-sufficiency if he was dependent on the resources of his non-EU spouse in order not to become a burden on the social assistance system of the host State. The right of free movement of self-sufficient EU citizens is contained in Article 7(1)(b) of Directive 2004/38. In order to qualify, the EU citizen must have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.

The Court considered its previous case-law, in which it had held that the expression “‘have’ sufficient resources” must be interpreted a as meaning that it suffices that such resources are available to the citizen. The Court concluded that the fact that some part of the resources available to the EU citizen derives from resources obtained by a non-EU spouse from their activity in the host Member State was entirely acceptable.