OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 7 May 2015 ( 1 )

Case C‑218/14

Kuldip Singh

Denzel Njume

Khaled Aly

v

Minister for Justice and Equality

(Request for a preliminary ruling from the High Court of Ireland (Ireland))

‛Directive 2004/38/EC — Article 7(1)(b), Article 12 and Article 13(2) — Marriage between a Union citizen and a third-country national — Departure of the Union citizen and subsequent divorce — Retention of the right of residence by the third-country national in the host Member State’

I – Introduction

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, ( 2 ) 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.

II – Legal framework

A – EU law

3. The relevant provisions of Article 7 of Directive 2004/38 are worded as follows: ‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence … 2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). …’

4. Article 12 of Directive 2004/38 governs retention of the right of residence by family members in the event of death or departure of the Union citizen and provides: ‘1. Without prejudice to [further conditions laid down in] the second subparagraph, the Union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State. … 2. Without prejudice to [further conditions laid down in] the second subparagraph, the Union citizen’s death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen’s death. … 3. The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.’

5. According to recital 15 in the preamble to Directive 2004/38, with due regard for family life and human dignity, if the Union citizen’s marriage breaks down, his/her family members should retain the right of residence.

6. To that end, Article 13(2) of Directive 2004/38 provides: ‘Without prejudice to [further conditions laid down in] the second subparagraph, divorce … shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where: (a) prior to the initiation of the divorce … proceedings …, the marriage … has lasted at least three years, including one year in the host Member State; or … (d) … the spouse … who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required. … Such family members shall retain their right of residence exclusively on personal basis.’

B – National law

7. Irish law contains implementing regulations corresponding to the abovementioned provisions of the Directive.

III – Facts in the main proceedings and questions referred for a preliminary ruling

8. Mr Singh, Mr Njume and Mr Aly are third-country nationals and in 2005 and 2007 married, in Ireland, Union citizens who are not Irish nationals themselves but were in Ireland in exercise of their right of free movement and residence. The third-country nationals were granted permission to reside in Ireland in their capacity as accompanying family members of Union citizens. In the subsequent years, the couples lived, at least from time to time, also on the earnings of the third-country national spouses.

9. The marriages broke down after the spouses had in each case lived for at least four years in Ireland. In all three cases, the Union citizens left Ireland without their spouses and then filed petitions for divorce in Latvia, the United Kingdom and Lithuania respectively. The marriages have in the meantime been dissolved by decree absolute.

10. Mr Singh, Mr Njume and Mr Aly rely on Article 13 of Directive 2004/38 in order to be able to remain in Ireland, for which they are, however, refused permission by the Irish authorities. The latter maintain that their right of residence was linked to that of their respective spouses and that it lapsed on their spouses’ departure from Ireland.

11. The High Court of Ireland, before which the cases have been brought for judicial review, has doubts regarding the interpretation of the Directive in this context and refers the following questions to the Court: ‘(1) Where marriage involving EU and non-EU citizens ends in divorce obtained following departure of the EU citizen from a host Member State where EU rights were exercised by the EU citizen, and where Articles 7 and 13(2)(a) of Council Directive 2004/38/EC apply, does the non-EU citizen retain a right of residence in the host Member State thereafter? If the answer is in the negative: does the non-EU citizen have a right of residence in the host Member State during the period before divorce following departure of the EU citizen from the host Member State? (2) Are the requirements of Article 7(1)(b) of Directive 2004/38/EC met where an EU citizen spouse claims to have sufficient resources within the meaning of Article 8(4) of the Directive partly on the basis of the resources of the non-EU citizen spouse? (3) If the answer to the second question is in the negative: do persons such as the applicants have rights under EU law (apart from the Directive) to work in the host Member State in order to provide or contribute to ‘sufficient resources’ for the purposes of Article 7 of the Directive?’

IV – Legal assessment

A – The first question referred

12. The first question referred consists of two parts, the second of which is submitted only if the first part of the question referred is answered in the negative.

13. By the first part of its first question, the referring court wishes in essence to know whether the 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 the marriage has lasted at least three years — including one year in the host Member State — at the time of departure and the marriage is dissolved by decree absolute following the wife’s departure to another Member State.

14. The answer to the question hinges on whether retention of the right of residence by divorced couples in cases such as those in the main proceedings is also to be assessed under Article 12 of Directive 2004/38 or whether only Article 13 is relevant.

1. Retention of the right of residence by family members under Article 12 of Directive 2004/38

15. Article 12 of Directive 2004/38 governs inter alia the continuation of the right of residence of family members in the event of departure of the Union citizen from whom they have derived their right of residence in the host Member State. In that regard, the provision makes a distinction according to whether or not the family member in question, who stays behind in the host Member State, is a Union citizen.

16. Pursuant to Article 12(1) of Directive 2004/38, family members who are themselves Union citizens retain their right of residence after the Union citizen’s departure and may acquire the right of permanent residence, provided that they do not become a financial burden on the host Member State, as referred to in Article 7 of the Directive.

17. The situation is different for family members who are third-country nationals and who retain their right of residence in the event of the Union citizen’s departure only in the narrow circumstances referred to in Article 12(3) of Directive 2004/38. Under that provision, if the other parent stays behind in the host Member State with children of the departed Union citizen, that other parent retains his/her right of residence in that State until the children of both parents have completed their studies at an educational establishment in that State, provided that he/she has actual custody of the children.

18. It must therefore be inferred from Article 12 of Directive 2004/38 that, in the case of family members who are third-country nationals, apart from the special situation referred to in Article 12(3), departure of the Union citizen entails loss of their right of residence in the host Member State. ( 3 )

19. Nor, following a question raised at the hearing, are there any indications that Article 12(3) of Directive 2004/38 could be relevant to the main proceedings. Consequently, with the departure of their marriage partners, who are Union citizens, the third-country national spouses in the main proceedings would already have lost their right of residence in the host Member State before the Union citizens even petitioned for divorce outside Ireland.

20. However, another conclusion is reached if the case of the divorced third-country nationals is assessed exclusively under Article 13 of Directive 2004/38.

2. Retention of the right of residence in the event of divorce pursuant to Article 13 of Directive 2004/38

21. Article 13 of Directive 2004/38 also makes a distinction according to whether or not the family members in question are Union citizens.

22. For the purposes of the case of the third-country nationals at issue here, the referring court takes as its central point of discussion only Article 13(2)(a) of Directive 2004/38, which creates a right of residence after a three-year period of marriage, and does not raise any question regarding Article 13(2)(d), which grants a right of residence under certain conditions in order to ensure access to the children.

23. Nor is it necessary to examine the last-mentioned provision in detail. While Mr Singh’s legal representative points out in his observations that the parents agreed that the father would exercise his right of access to their child in Ireland, it cannot be inferred from the request for a preliminary ruling, which is authoritative in this respect, that, in addition, a ‘court has ruled that such access must be in the host Member State [that is, in Ireland]’. According to the facts submitted, there is therefore no need for closer examination of Article 13(2)(d) of Directive 2004/38, but there is a need to question whether a continuation of the right of residence can be justified on the basis of Article 13(2)(a) of Directive 2004/38.

24. Under that provision, divorce does not entail loss of the right of residence by the third-country national if, prior to initiation of the divorce proceedings, the marriage has lasted at least three years, including one year in the host Member State.

25. Since those conditions are met in the case of the three applicants in the main proceedings, they could, if Article 13 of Directive 2004/38 is applied on its own, rely on their right of residence. According to its wording, Article 13 of Directive 2004/38 requires neither that the Union citizen and his spouse reside in the host Member State until the divorce proceedings are terminated, nor that the divorce proceedings be initiated and terminated in that State.

3. Combined consideration of Articles 12 and 13 of Directive 2004/38

26. However, if Articles 12 and 13 of Directive 2004/38 are considered, not each on its own, but in combination, then, on an interpretation based strictly on its wording, Article 13 of the Directive cannot be used to justify continuation of the right of residence of the divorced third-country nationals.

27. Upon the Union citizen’s departure, the right of residence of the spouse staying behind in the host Member State would already have lapsed, and the subsequent petition for divorce could not lead to its revival, because Article 13 of Directive 2004/38 refers to ‘retention’ of an existing, but not to revival of an already lapsed, right of residence.

28. The applicants in the main proceedings can therefore retain their right of residence in the host Member State only if it can be inferred from schematic or teleological considerations that the continuation of their right of residence is ultimately to be assessed solely under Article 13 of Directive 2004/38.

29. By Article 13(2)(a) of Directive 2004/38, the EU legislature clearly intended to protect the interests of third-country national spouses in the host Member State. If, in the event of a divorce, they are threatened with loss of the right of residence, that circumstance may be an important motive for not filing a petition for divorce even though the marriage has broken down. The Union legislature’s general idea was that, after the marriage has lasted three years — including one year in the host Member State — the third-country national should not have to fear any disadvantages in terms of the right of residence in the event of a divorce.

30. However, according to the legislature’s intention, after the spouse’s departure from the host State, there is no longer a corresponding need for protection on the part of the third-country national, since the very departure of the Union citizen entails the loss by the third-country national of his right of residence in the host Member State.

31. That is supported by the following considerations.

32. First, it can be inferred from the structure of the provisions that Article 13 of Directive 2004/38 is intended, in principle, to apply only to cases where both spouses are still residing in the host Member State until the time of the divorce.

33. This is because Article 12 of Directive 2004/38 lays down exhaustively the circumstances in which the right of residence can be retained by family members after the death or departure of the Union citizen. However, the legislature makes no mention of divorce-related issues in Article 12, but devotes a separate provision to them in Article 13. If divorce-law considerations had called, in addition, for a modified approach to departure cases, it would have been obvious that the EU legislature should also make that explicitly clear.

34. Failing that, it must be assumed that the third-country national’s right of residence under Article 12 of Directive 2004/38 has, as a rule, already lapsed when the Union citizen petitions for divorce only after his/her departure. From a conceptual point of view alone, there is therefore no room, in the case of a later petition for divorce, for retention of a right of residence under Article 13.

35. Only in the case referred to in Article 12(3) of Directive 2004/38 would a combined application of Articles 12 and 13 be conceivable at all and in such a way that the right of residence of the parent who has stayed behind, which is dependent on parental custody, would be converted ex post facto — in the event of a divorce taking place — into an unconditional right of residence. However, there is no need to address that special case, because the facts put before the referring court contain no indications to that effect.

36. Secondly, considerations of legal certainty support the view that, in factual situations such as those in the main proceedings, the Union citizen’s departure causes the right of residence of the third-country national who stays behind to lapse.

37. That is because it will often be the case that, at the time of departure, it is not yet by any means possible to foresee whether the marriage will subsequently be dissolved or not. However, if it were to be assumed that Article 13 of Directive 2004/38 remains applicable to cases of divorce even after the Union citizen’s departure, the right of residence of the family members remaining behind would first have to lapse on account of the departure and then — after filing of the petition for divorce — be revived again retroactively. However, the directive contains no indication of any such state of uncertainty in terms of the right of residence. On the contrary, whether a right of residence exists or not must be clearly apparent at any time, in the interests of all parties.

38. Thirdly, it is not possible to infer from considerations relating to the practical effectiveness of the Directive any compelling arguments to the effect that Article 13(2)(a) of Directive 2004/38 should be relevant with regard to the right of residence of the third-country national in the host Member State after the Union citizen’s departure and the subsequent initiation of divorce proceedings.

39. Article 13 of Directive 2004/38 does actually retain significant scope even if cases where the Union citizen has left the host Member State prior to the divorce are excluded from it.

40. Although it cannot be denied that inequities may arise if, in one case, a petition for divorce is filed within the country but, in another case, it is filed only after departure to another country and, where both marriages have lasted an equally long time, the right of residence of the third-country national is retained in the first case, where the Union citizen does not depart, but not in the second.

41. This issue has, however, been taken into account in the scheme of the Directive and clearly accepted by the legislature. It cannot be inferred from Directive 2004/38 that the third-country national should have a right of residence in the host Member State after a three-year marriage even in the event of the Union citizen’s departure and subsequent filing of a petition for divorce. It would easily have been possible for the legislature to include such a simple and transparent rule in the Directive. However, it did not do so, but instead created the complicated and interlocking system of Articles 12 and 13, which may not be disregarded for reasons of equity by the person applying the law.

42. It must also be conceded that, by maliciously departing from the host Member State, the Union citizen may shatter his/her spouse’s expectation as to the right of residence established in Article 13; there is, however, nothing in the main proceedings which points to such an intention, and the third-country national would not be completely defenceless in the face of such a move — he/she could accompany the Union citizen or, if the marriage has broken down, him/herself institute the divorce proceedings in good time in the host Member State.

43. If he/she does not do so, he/she ultimately finds him/herself in the same situation as that of Mr Iida, ( 4 ) in respect of whom the Court did not affirm — despite his continuing marriage — a right of residence founded on either primary or secondary legislation after his wife’s departure. It is true that Directive 2004/38 did not apply to Mr Iida’s case, because he resided in his wife’s State of origin and not in another Member State. Nevertheless, it can be inferred from the judgment in Iida that the right of residence under EU law which third-country nationals derive from family members who are Union citizens does not, as a rule, extend to Member States in which the Union citizens do not reside.

44. So it is also in the present case, in which Directive 2004/38 caused the third-country national’s right of residence to lapse, by reason of the Union citizen’s departure, before Article 13 of the Directive became applicable at all through the initiation of divorce proceedings.

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.

50. Since, therefore, in relation to the present case, the rules of Directive 2004/38 do not encounter any decisive obstacles, including as regards fundamental rights, the first part of the first question referred for a preliminary ruling must be answered to the effect that 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 departure, the marriage had lasted at least three years — including one year in the host Member State — and is dissolved by decree absolute in another Member State after the wife’s departure.

51. The answer to the second part of the first question, by which the referring court wishes to know whether the third-country national is entitled to remain in the host Member State at least until the end of the divorce proceedings, likewise follows from Article 12 of Directive 2004/38, which grants the third-country national a right of residence in the host Member State lasting beyond the time of the Union citizen’s departure only under the conditions laid down (and in the present case not met) in Article 12(3): if, after the Union citizen’s departure, the third-country national’s right of residence has lapsed, it cannot revive again, in the absence of corresponding provisions in the Directive, even until the end of the divorce proceedings, should such proceedings be initiated in another State.

B – The second question referred for a preliminary ruling

52. By its second question, the referring court wishes in essence to know whether resources of the spouse who is not a national of a Member State are to be taken into account in determining whether the Union citizen has at his/her disposal sufficient resources within the meaning of Article 7(1)(b) and Article 8(4) of the Directive.

53. By reference to settled case-law, this question can be answered in the affirmative, the origin of the resources being irrelevant, provided that they were lawfully acquired. ( 9 )

54. There is therefore no need to answer the third question.

V – Conclusion

55. 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.

( 1 ) Original language: German.

( 2 ) Directive 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, corrected in OJ 2004 L 229, p. 35).

( 3 ) With regard to the previous legal situation under Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1), see the judgment in Mattern and Cikotic (C‑10/05, EU:C:2006:220, paragraph 27).

( 4 ) Judgment in Iida (C‑40/11, EU:C:2012:691).

( 5 ) See, in this regard, points 63 to 67 of my Opinion in Parliament v Council (C‑540/03, EU:C:2005:517) and Eur. Court HR, Boultif v. Switzerland, no. 54273/00, § 39, Reports of Judgments and Decisions 2001-IX, and Biao v. Denmark, no. 38590/10, § 53, 25 March 2014.

( 6 ) See, for example, Eur. Court HR, Mehemi v. France, 26 September 1997, no. 25017/94, § 27, Reports of Judgments and Decisions 1997-VI.

( 7 ) See, on this point, judgment in Iida (C‑40/11, EU:C:2012:691, paragraphs 60 to 64).

( 8 ) Even the scenario of a ‘divorce of convenience’, as the counterpart of a marriage of convenience, namely one in which a third-country national obtains a divorce solely for the purpose of establishing a right of residence in the host Member State prior to the expected departure of his/her spouse under Article 13 of Directive 2004/38, would be theoretically possible. In practice, however, it is rather unlikely, not least for reasons of cost, that married couples could be induced to take such an extreme step, since the third-country national can in any case acquire a right of permanent residence after five years under Article 16(2) of Directive 2004/38. Whether such a ‘divorce of convenience’ would, where appropriate, have to be denied legal force and what consequences would arise from that in terms of the right of residence can be left undecided because the facts contain no indications of such an arrangement.

( 9 ) See, for example, judgments in Zhu and Chen (C‑200/02, EU:C:2004:639, paragraph 30); Commission v Belgium (C‑408/03, EU:C:2006:192, paragraph 42); and Alokpa and Others (C‑86/12, EU:C:2013:645, paragraph 27).