Domestic violence and free movement of EU citizens: a shameful CJEU ruling
Steve Peers
EU laws on the free movement of EU
citizens don’t give non-EU citizens rights
in their own name. Rather, non-EU citizens can only gain rights under those
laws if they have a family link with an EU citizen. This creates an obvious
problem in cases of domestic violence committed by an EU citizen against a
non-EU citizen family member. If the non-EU family member breaks the family
link in order to flee the violence, there could be a risk of expulsion. So the
victims might stay with their abusers due to a fear of removal from the country,
which might include separation from their children.
However, there are provisions of
EU law that mitigate this risk. It has long been the position (since the CJEU judgment
in Diatta)
that non-EU citizens can remain in the same country as their EU citizen spouse
following a separation. Their position only changes after divorce.
Upon divorce, the EU citizens’
Directive (which sets out most of the rules governing EU citizens who moved
to another Member State) provides specific protection. As a general rule, they
can remain if the marriage has lasted three years, including one year in the
host State. They can also stay if they have custody of the children, or access
to them in the host State. Finally, they can also stay if ‘this is warranted by
particularly difficult circumstances, such as having been a victim of domestic violence
while the marriage…was subsisting’. In any of these cases, they can later get
permanent residence status.
The recent judgment
in NA was the first time the Court of
Justice has interpreted the specific rule on domestic violence cases. It
follows last year’s judgment in Singh,
where the Court first interpreted the general rule about divorce. Both cases
raised the same underlying issue: what happens if the EU citizen leaves the host State before the divorce
is finalised? Does that departure immediately
end the non-EU citizen’s status under the citizens’ Directive, trumping the retention
of their residence that would otherwise apply during their separation and
(probably) their subsequent divorce from their spouse?
According to the Court of Justice,
it does. This reasoning was an unconvincing interpretation of the general rule
in Singh, and it is a particularly
unconvincing interpretation of the special rule on domestic violence victims, taking
insufficient account of the social context of this rule. While the victim in NA was able to rely on other provisions
of EU law, not all victims will be able to. The Court of Justice should
therefore rethink its position if the case arises – particularly in light of
the EU’s planned signature of the Istanbul Convention on violence against
women.
The judgment
The case concerned the status of
a Pakistani woman who moved to the UK with her German husband. (The judgment
will no longer be relevant to the UK if the country leaves the EU without an
agreement on the continued free movement of people. However, it will still be
relevant to other Member States). Her husband worked in the UK, and the couple
had two daughters, both of whom are German citizens. She left the household due
to domestic violence, and her husband left the country shortly after that,
before any divorce proceedings began. She subsequently sought permanent
residence status in the UK.
Did she retain rights under the
citizens’ Directive? As noted above, the Court said she did not. It simply
followed Singh, ruling that rights
for the non-EU family member ended the moment the EU citizen left the country,
unless divorce proceedings had begun beforehand. It gave three reasons. First,
the wording of the relevant clause referred only to divorce. Second, the
context was the ‘exceptional’ case where a non-EU citizen retained a right to
stay despite no longer being a ‘family member’ of an EU citizen living in the
same Member State. Third, the Court referred to the ‘aims’ of the law. In its
view, the EU legislature had declined to make provision for cases where the EU
citizen had departed the Member State, and the original proposal
referred to possible ‘blackmail accompanied by threats of divorce’, with ‘safeguards’
only ‘necessary…in the event of final divorce’, as the right of residence is ‘not
at all affected’ by a ‘de facto
separation’.
So she had no rights under the
citizens’ Directive. However, the Court then examined two other arguments for
her stay. First, the Regulation
on free movement of workers says that the children of EU workers are entitled
to access education. The Court had previously ruled that this entailed a right for
the children to stay even if the worker had left, along with a corollary right
for the parent caring for them to stay as well. The UK court questioned whether
this rule applied even if (as in this case) the children only started school
after the worker had left the country; the Court of Justice confirmed prior
case law that it did. It was sufficient that the children were resident at some
point while one parent was working in that Member State.
Finally, the Court examined a
two-fold argument for NA’s right to stay on the basis of the EU Treaties. The
first leg of this argument invoked Ruiz
Zambrano, the well-known 2011 CJEU judgment which said that non-EU
family members of EU citizen children who had not moved within the EU could derive a right to stay based on their
children’s rights as EU citizens not to be deprived of the benefits of their EU
citizenship. But the Court said that Zambrano
was irrelevant to NA, since it only applied as a default, where no EU legislation
could protect the legal status of the person concerned.
The second leg invoked the general
right of free movement of EU citizens set out in the Treaties. But the Court
ruled that the Treaty right was subject to secondary legislation. Applying the
citizens’ Directive, NA’s EU citizen children could stay if they had ‘sufficient
resources’, which could be derived from a parent. There was then a corollary
right for a parent to stay with them – reaffirming case law going back to the Court’s
well-known Chen
and Zhu judgment.
Comments
In this case, Ms NA got to stay
in the country – but that wasn’t actually the issue. She was seeking rather the
right to permanent residence, but at first sight she will not obtain that. That
right applies to a family member who retains a right of residence under the
citizens’ Directive following divorce (among other cases). But it’s not clear
if it applies to those who are resident only as a corollary to their children
under the Directive. And it certainly does not apply to those who are only resident
on the basis of the Regulation on free movement of workers, rather than the Directive:
the Court said as much in its Alarape
judgment.
The bigger problem with this
judgment is the scope it opens to Member States to remove the victims of
domestic violence from their territory. Ms NA only got the right to stay on the
basis of her care for the children, not as a victim of domestic violence. So a
victim without children would not have such protection. Also, rather
arbitrarily, a victim whose husband had been self-employed, rather than a worker,
would not benefit from the free movement of workers Regulation (see the Czop
judgment). Moreover, the Court skipped over the point that her second child had
not yet been born at the time when her husband left the country. The judgment
would not help those victims whose children had been abducted by the husband
when he returned to his home State, or who did not have parental responsibility
for the children.
The logic of the Court’s analysis
is deeply flawed. First, it isn’t self-evident that the rule on divorce is
trumped in the event of separation: the EU legislature simply didn’t explain
which rule takes precedence in that case. Secondly, the numbers of non-EU
citizens with the right to stay will still
remain ‘exceptional’, even if it is extended to cover also the (hopefully)
small numbers of cases where an EU citizen perpetrates domestic violence
against a non-EU citizen and then leaves the country before divorce proceedings
start.
Thirdly, the Court’s analysis of
the aims of the EU legislation is clearly absurd. True, the right of residence
is ‘not at all affected’ by a ‘de facto
separation’ – as long as the EU citizen spouse remains in the country. If the
EU citizen spouse leaves, according to the Court’s own interpretation, the
right of residence isn’t just ‘affected’ – it instantly vanishes entirely. So
in that case ‘safeguards’ would be ‘necessary’.
Otherwise there could be ‘blackmail accompanied by threats’ of departure, rather than divorce. Did the EU legislature really intend to make that fine
distinction: it’s terrible to threaten a non-EU spouse in one case, but perfectly
acceptable in the other? Does the humanity of our response to domestic violence
rest on that technicality?
This analysis is shared by the Advocate-General’s
opinion,
which notes that the loss of status ‘could be used as a means of exerting
pressure…to wear the victim down psychologically and, in any event, to engender
fear of the perpetrator’. The Court’s interpretation could also complicate criminal
proceedings, and deprive the victim’s derived right of its effectiveness.
Overall that interpretation is ‘manifestly contrary to the objective of legal
protection pursued by’ the citizens’ Directive.
Two final points on the broader
context. First, the Istanbul
Convention on violence against women, which the Commission has proposed
that the EU sign, provides for a right of residence in domestic violence cases
(see Article 59). There’s no reference to any distinction based on whether the
perpetrator has left the country or not. Neither is there any such reference in
the explanatory
memorandum to the Convention. And why the hell should there be? Who cares where the perpetrator is, in this
context? The sole purpose of the Convention – like the relevant clause in the
citizens’ Directive – is obviously to help the victim.
Secondly, let’s examine the law
from the perspective of the actual victim in this case. She could have
preserved her position by bringing divorce proceedings before her husband left
the country. But she had just fled her home, five months pregnant with an
eleven-month old child. She may well have faced problems relating to work, benefits
or accommodation. And on top of all this, the Court of Justice gives the nod to
the Home Office to question her immigration status.
With all due respect, this is one
of the most shameful judgments in the Court’s long history. It should be
revisited at the earliest opportunity, in particular if the EU has concluded
the Istanbul Convention in the meantime.
The original post you can find here: http://eulawanalysis.blogspot.nl/2016/07/domestic-violence-and-free-movement-of.html
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