Same-Sex Partners Exercising Treaty Rights

On 5 June 2018 the Grand Chamber of the European Court of Justice (“ECJ”) gave its judgment in the case of Coman and Others. The case considered the definition of a ‘spouse’ with respect to family members of EEA nationals exercising treaty rights, namely same-sex married partners residing in countries where the national law does not recognise same-sex marriage.   

The case centred on Mr Coman, who holds both Romanian and US citizenship, and who is married to Mr Hamilton, a US citizen. The couple met in June 2002 in New York and lived together in the US between May 2005 and May 2009. Mr Coman subsequently moved to Brussels to work at the European Parliament, while Mr Hamilton continued to reside in the US. The couple married in Brussels in November 2010.  

In December 2012, the couple contacted the Romanian Inspectorate to enquire about if and how Mr Hamilton, a non-EEA national, could lawfully reside in Romania for more than three months.  

In January 2013, the Inspectorate responded to the couple’s enquiry stating that Mr Hamilton, as the same-sex partner of an EEA national, did not have the right to reside in Romania for more than three months. The response included an explanation stating that the Romanian Civil Code did not recognise same-sex marriage and therefore Mr Hamilton could not be granted temporary residence on the grounds of family reunion.

In October 2013, Coman and Others brought an action against the Inspectorate before the Court of First Instance in Romania, seeking a declaration of discrimination on the grounds of sexual orientation as regards the exercise of the right of free movement in the EU. Coman and Others also requested that the Inspectorate be ordered to end the discrimination and to pay compensation for damages. They argued that a failure to recognise same-sex couples who married abroad was an infringement of the Romanian Constitution which protects the rights to family life and private life, as well as the provisions relating to the principles of equality.  

The Court of First Instance in Romania referred the case to the Constitutional Court of Romania for a ruling on the plea of unconstitutionality. The case was subsequently referred to the ECJ.

The Constitutional Court of Romania referred to the ECJ four questions surrounding the definition of spouse in EU law and how it should be interpreted with regards to free movement rights. The questions can be summarised as follows:

1. Does the term “spouse” include same-sex couples lawfully married in another EU country under the EEA Immigration Regulations?
2. If the answer to question 1 is yes, then are all EU countries required by law to grant the same-sex spouse of an EU national, lawfully married in the EU, the right to reside in that country?
3. If the answer to question 2 is no, then are same-sex spouses considered “other family members” of the EU national?
4. If the answer to question 3 is yes, then are all EU countries required to allow the same-sex spouse of an EEA national to reside in that country?

The hearing was held on 21 November 2017 and the Advocate General Melchior Wathelet delivered his opinion in January 2018. On 5 June 2018, the Court in the Grand Chamber answered the questions put to them by the Romanian Constitutional Court as follows:

1. The definition of “spouse” includes same-sex couples. Therefore, where an EU national has legally married a third country national in an EU country, all other countries must acknowledge this marriage.
2. As the answer to question 1 was yes and the definition of “spouse” under the EEA Immigration Regulations includes same-sex couples lawfully married in another EEA country, all EEA countries must grant a same-sex spouse the right to reside in that country.

As questions 1 and 2 were both answered affirmatively, questions 3 and 4 were not answered.  

This case therefore affirmed the residency rights of EU nationals in same-sex marriages, where at least one partner is an EU citizen and the marriage was legally performed in an EU member state.  

Gherson has over 30 years of experience in assisting with UK immigration. If you need assistance with your immigration matters or wish to receive some more information, please contact us.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2018