Kuldip Singh and Others v Minister for Justice and Equality.
Date: 2015-07-16
13. After judgment was delivered in Metock and Others  (C‑127/08, EU:C:2008:449) and in accordance with Directive 2004/38, Mr Singh was granted permission to reside in Ireland for five years as the spouse of a Union citizen residing and exercising rights under the FEU Treaty in Ireland.
25. After judgment was delivered in Metock and Others  (C‑127/08, EU:C:2008:449) and in accordance with Directive 2004/38, Mr Njume was by decision of 3 December 2008 granted permission to reside in Ireland for five years as the spouse of a Union citizen residing and exercising rights under the FEU Treaty in Ireland. That permission to reside, which had retroactive effect from 11 October 2007, was accompanied by the issue of a residence card.
50. As regards the right of residence in the host Member State of nationals of third countries who are family members of a Union citizen, attention should be drawn, as a preliminary point, to the settled case-law of the Court which states that the rights conferred on third-country nationals by Directive 2004/38 are not autonomous rights of those nationals but rights derived from the exercise of freedom of movement by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow such rights would be liable to interfere with the Union citizen’s freedom of movement by discouraging him from exercising his rights of entry into and residence in the host Member State (see, to that effect, judgment in O and B , C‑456/12, EU:C:2014:135, paragraphs 36 and 45 and the case-law cited).
51. It must also be recalled that it is not all third-country nationals who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are a ‘family member’ within the meaning of Article 2(2) of that directive of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (judgment in Iida , C‑40/11, EU:C:2012:691, paragraph 51 and the case-law cited).
52. Moreover, Article 3(1) of Directive 2004/38 requires that the family member of the Union citizen moving to or residing in a Member State other than that of which he is a national should accompany or join him, in order to be a beneficiary of the directive (see judgment in Iida , C‑40/11, EU:C:2012:691, paragraph 61).
53. Article 7 of Directive 2004/38, which concerns the right of residence for more than three months, likewise requires that the family members of a Union citizen who are not nationals of a Member State ‘accompany’ or ‘join’ him in the host Member State in order to enjoy a right of residence there (judgment in Metock and Others , C‑127/08, EU:C:2008:449, paragraph 86).
54. According to the Court’s case-law, the condition that the third-country national must accompany or join the Union citizen must be understood as referring not to an obligation for the spouses to live together but an obligation for them both to remain in the Member State in which the spouse who is a Union citizen exercises his right of freedom of movement (see, to that effect, judgment in Ogieriakhi , C‑244/13, EU:C:2014:2068, paragraph 39).
55. Thus nationals of third countries who are family members of a Union citizen can claim the right of residence provided for by Directive 2004/38 only in the host Member State in which the Union citizen resides, and not in another Member State (see, to that effect, judgment in Iida , C‑40/11, EU:C:2012:691, paragraphs 63 and 64).
57. Finally, under Article 14(2) of Directive 2004/38, the right of the family members of a Union citizen to reside in the host Member State on the basis of Article 7(2) of the directive continues only as long as they meet the conditions laid down in that provision.
62. That is not the case, however, if, before the commencement of those proceedings, the Union citizen leaves the Member State in which his spouse resides for the purpose of settling in another Member State or a third country. In that event the third-country national’s derived right of residence based on Article 7(2) of Directive 2004/38 has come to an end with the departure of the Union citizen and can therefore no longer be retained on the basis of Article 13(2)(a) of that directive.
66. Consequently, it is clear that the spouse who is a Union citizen of a third-country national must reside in the host Member State, in accordance with Article 7(1) of Directive 2004/38, up to the date of commencement of the divorce proceedings for that third-country national to be able to claim the retention of his right of residence in that Member State on the basis of Article 13(2) of the directive.
67. It follows that, as the Advocate General observes in point 27 of her Opinion, in circumstances such as those at issue in the main proceedings, the departure of the spouse who is a Union citizen has already brought about the loss of the right of residence of the spouse who is a third-country national and stays behind in the host Member State. The later petition for divorce cannot have the effect of reviving that right, since Article 13 of Directive 2004/38 mentions only the ‘retention’ of an existing right of residence.
68. That does not mean that, under national law, which may grant more extensive protection, a national of a third country, in circumstances such as those of the main proceedings, may not be authorised — as in the present cases — to continue to reside in the Member State concerned (see, to that effect, judgment in Melloni , C‑399/11, EU:C:2013:107, paragraph 60).
73. It follows from Article 7(1)(b) and (2) of Directive 2004/38 that, whatever their nationality, the family members of a Union citizen who is residing in another Member State without being a worker or self-employed person there have the right to accompany or join that citizen, provided that he has sufficient resources for himself and the family members and has comprehensive sickness insurance cover in the host Member State (judgment in Ibrahim and Secretary of State for the Home Department , C‑310/08, EU:C:2010:80, paragraph 28).
74. The Court has previously held that the expression ‘have’ sufficient resources in that provision must be interpreted as meaning that it suffices that such resources are available to the Union citizen, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided inter alia by the third-country national (see judgment in Alokpa and Moudoulou , C‑86/12, EU:C:2013:645, paragraph 27 and the case-law cited).
75. As the Court has also previously held, an interpretation of the condition concerning the sufficiency of resources as meaning that the person concerned must have such resources himself, without being able to use for that purpose the resources of an accompanying family member, would add to that condition, as formulated in Directive 2004/38, a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and residence guaranteed by Article 21 TFEU (see, to that effect, judgment in Zhu and Chen , C‑200/02, EU:C:2004:639, paragraph 33).
76. It follows that the fact that some part of the resources available to the Union citizen derives from resources obtained by the spouse who is a third-country national from his activity in the host Member State does not preclude the condition concerning the sufficiency of resources in Article 7(1)(b) of Directive 2004/38 from being regarded as satisfied.