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CJEU - C 218/14 / Opinion

Kuldip Singh and Others v Minister for Justice and Equality

Policy area:
Asylum and migration
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Opinion of Advocate General
Decision date:

Key facts of the case:

  1. The question at the centre of the present request for a preliminary ruling is whether a third-country national who resided as the spouse of a Union citizen together with her in an EU Member State of which the Union citizen is not a national is entitled to remain in that State even if the Union citizen has departed permanently from it and has obtained a divorce from her spouse following her departure.
  2. The answer to that question requires an interpretation of Directive 2004/38/EC, which governs retention of the right of residence in the event of departure and/or divorce in two separate provisions. The question of how those provisions are to be applied in circumstances such as those of the main proceedings is still unresolved in the Court’s case-law.

Results (sanctions) and key consequences of the case:

In the light of all the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling as follows:

Under Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, a third-country national loses his right of residence in the host Member State if the Union citizen married to him departs from that Member State, of which she is not a national, even if, at the time of her departure, the marriage had lasted at least three years — including one year in the host State — and was dissolved by decree absolute after the wife’s departure to another Member State. Directive 2004/38 does not grant the third-country national any right of residence in the host Member State after the Union citizen’s departure, even till the termination of the divorce proceedings by decree absolute.

Resources of the spouse who is not a national of a Member State must also be taken into account, if they were lawfully acquired, in determining whether the Union citizen has at her disposal sufficient resources within the meaning of Article 7(1)(b) and Article 8(4) of Directive 2004/38.