EU Court of Justice: Derived residency rights extend to same-sex spouses

8 Jun 18

EUROPEAN UNION

IMPACT – MEDIUM

The Court of Justice of the European Union has ruled that EU member states must include same-sex spouses, not just opposite-sex spouses, when granting residency to the non-EU spouse of an EU citizen.

“Although the Member States have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory,” the court said in a statement.

The case involves a Romanian national and his American husband. The couple lived together in New York for four years, were married in Brussels under Belgian law permitting same-sex marriage and then sought residency in Romania. Romanian immigration authorities denied the request on the basis that the country does not recognize same-sex marriage and therefore the U.S. national could not obtain residency as a “spouse.”  The EU court, however, said that the definition of spouse in the Directive on Free Movement must be interpreted to include an EU citizen’s same-sex spouse, regardless of whether same-sex marriage is legal in any individual EU member state.

Background: The EU does not allow nationals of any particular member state to rely on EU law ahead of national laws by choice; rather, EU citizens must move to another EU country to trigger an ability to rely on EU laws. In this instance, the Romanian national had “exercised a right of free movement” by moving to Brussels, during which time he strengthened his family ties by marrying his American partner, and so was able to rely on EU laws in his home country, Romania, under the “Surinder Singh” rule.  The same provision would allow a U.K. national living in France with a non-EU partner to rely on EU free movement rules (rather than more punitive U.K. immigration rules for spouses) when returning to the U.K.

The EU does not have a uniform policy on same-sex marriage, and several countries do not facilitate same-sex marriage in national law, including Bulgaria, the Czech Republic, Poland and Romania. With the court’s ruling, an EU member state may no longer refuse a visa on the grounds that its national laws do not recognize same-sex marriage and must acknowledge that the right for family members, including same-sex spouses, to accompany their partners is essential to ensure that EU citizens can truly move freely within the EU.

BAL Analysis: This landmark ruling should allow greater certainty for EU citizens seeking to bring their non-EU same-sex spouses or partners to live with them as family members when exercising their right of free movement in another EU member state, or indeed if returning from the EU to their home country.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@balglobal.com.

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