Non-EU nationals could lose residency rights if their EU national partner divorces them, the European Court of Justice in Luxembourg confirmed yesterday.
Under EU law, the non EU spouse can only live in the same country as their EU partner. In the event of divorce, the non-EU spouse can only stay if they have been married for three years, and have lived in their spouse’s native or host country for at least one of those years. If they meet these criteria, they are still only allowed to live in their former spouse’s native or host country in the EU after divorce.
The EU rules around divorce and non-nationals were highlighted in a case before the Irish High Court. The preliminary hearing took place in May 2014. The court was asked to consider the case of an Indian man, Kuldip Singh, who had been married to his Latvian wife for just over four years. Latvia is an EU member state. The couple were married in November 2005 and lived and worked in Ireland, but the wife returned to Latvia and started divorce proceedings in February 2010. At that point Mr Singh was refused permission to stay in Ireland, but was subsequently allowed to remain on a temporary basis while the case was heard.
The Irish High Court was also recently asked to consider similar cases concerning two other non-EU nationals, from Cameroon and Egypt respectively, who married women from Germany and Lithuania, which are both EU member states. Like Mr Singh, they were living and working in Ireland when their wives returned to their native countries before starting divorce proceedings.
The Irish High Court asked the European Court of Justice for guidance regarding the right to residency in these circumstances. EU rules state that the couple need to be living in the same country at the start of divorce proceedings.
Judges at the Luxembourg court ruled yesterday that because the wives had left Ireland before suing for divorce, the men were not entitled to residency in Ireland.
One consequence of these rulings is a fear that a spouse who is an EU national could use the threat of expulsion as a way of exerting pressure on their partner if their relationship falters.
An unnamed EU court contact said,
“There is a big concern that it could lead to putting people in very difficult situations vis-a-vis their spouse or soon to be ex-spouse, which gives a certain amount of power to their ex-spouse.”
According to the EU’s office of statistics – Eurostat – EU member states issued approximately 2.36 million first residence permits to third country nationals in 2013. A residence permit is an authorisation that lets a non-EU citizen to stay legally in an EU member country. Of those, 673,000 were for family-related issues. The UK issued the highest number of first permits in the EU in 2013 with 724,000, followed by Poland, Italy, France, Germany and Spain.