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Domestic violence and free movement of EU citizens: a shameful CJEU ruling.

Steve Peers

EU laws on the free movement of EU citizens dont 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 judgmentin NA was the first time the Court of Justice has interpreted the specific rule on domestic violence cases. It follows last years 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 immediatelyend the non-EU citizens 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 EUs 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 proposalreferred 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 factoseparation.  

So she had no rights under the citizens Directive. However, the Court then examined two other arguments for her stay. First, the Regulationon 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 NAs 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 childrens rights as EU citizens not to be deprived of the benefits of their EU citizenship. But the Court said that Zambranowas 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, NAs 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 Courts well-known Chen and Zhu judgment.

Comments

In this case, Ms NA got to stay in the country but that wasnt 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 its 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 Alarapejudgment.

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 Czopjudgment). 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 Courts analysis is deeply flawed. First, it isnt self-evident that the rule on divorce is trumped in the event of separation: the EU legislature simply didnt explain which rule takes precedence in that case. Secondly, the numbers of non-EU citizens with the right to stay will stillremain 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 Courts analysis of the aims of the EU legislation is clearly absurd. True, the right of residence is not at all affected by a de factoseparation as long as the EU citizen spouse remains in the country. If the EU citizen spouse leaves, according to the Courts own interpretation, the right of residence isnt 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: its 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-Generals 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 Courts interpretation could also complicate criminal proceedings, and deprive the victims 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 proposedthat the EU sign, provides for a right of residence in domestic violence cases (see Article 59). Theres 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, lets 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 Courts long history. It should be revisited at the earliest opportunity, in particular if the EU has concluded the Istanbul Convention in the meantime.

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo image: Telegraph.co.uk

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