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
  • CJEU - C 218/14 / Opinion

    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.

  • Paragraphs referring to EU Charter


    45. Nor do considerations based on primary law — in particular Article 7 of the Charter of Fundamental Rights and the right to respect for family life — lead to any other result.

    46. First, Article 7 of the Charter is not capable, in cases such as those in the main proceedings, of creating an independent right of residence for the third-country national in the host Member State, simply because such a right would not be conducive to the further continued existence of his/her family life with the Union citizen, but would instead be connected with the stage of life following the ending of that family life.

    47. Secondly, protection of marriage and the family as a fundamental right does indeed not go so far as to give the spouses a completely free choice as to the State in which they reside. (5) In so far as a family has, however, lawfully established its residence in a particular State, withdrawal of the right of residence may amount to an infringement. (6) Nevertheless, it is necessary to draw a distinction between that situation and the case where the period of residence together as a family ends, not as a result of State interference, but — as in the main proceedings — as a result of a decision freely made by a departing family member. As regards such cases of departure, it lies within the discretion of the EU legislature, in a legal act seeking primarily to further the freedom of movement of the Union citizen and providing for supporting measures for his/her family life, to regulate the right of residence of the third-country national spouse in such a way that he/she must accompany the Union citizen to that State in which the latter intends to lead his/her life from then on.

    48. None the less, there remains an inconsistency in the system of Directive 2004/38. After the Union citizen’s departure, his/her third-country national spouse may lose his/her right of residence in the previous host Member State if, for example, for career-related reasons, he/she does not accompany the Union citizen nor have custody of a common child, even despite an intact marriage, (7) whereas if the marriage breaks down and he/she is able to obtain a divorce in time, the third-country national would retain his/her right of residence in the host Member State under Article 13 of Directive 2004/38. (8)

    49. That may constitute interference with the protection of the family in conjunction with the freedom of movement of the Union citizen involved. It is not inconceivable, particularly in border areas, for a family to organise itself in such a way that the partners live and work in different Member States. It is not, however, necessary to pursue further this doubt regarding the consistency of the system established by the provisions of Articles 12 and 13 of the Directive. From the perspective of Article 7 of the Charter it could, at most, result in retention of the right of residence by a still-married third-country national. In the present case, however, the marriages have been dissolved.