In X v Belgian State, Case 390/19, the Grand Chamber of the Court of Justice updated its position on when it is possible for a third-country national (TCN) victim of spousal domestic violence to retain rights following divorce from the EU citizen. In its earlier decisions (Singh , Case C-218/14 and NA, Case C-115/15) the court considered the order of events giving rise to retained rights for TCN spouses under Article 13 of Directive 2004/38. One key issue being where the EEA national departs prior to divorce. In NA, the court specifically considered this in a context of domestic violence, and held that the EEA national must reside in the host Member State until the commencement of divorce proceedings. In his opinion for X v Belgian State, Advocate General Szpunar analysed the pre-existing case-law and argued that the position needed to be changed for victims of domestic violence. The Court of Justice followed suit.
X, a TCN, married a French citizen in 2010 and moved to join her in Belgium in 2012. He was issued with a Residence Card in 2013 but, after almost five years of marriage, including two year living together in Belgium, X was forced to leave the family home due to domestic violence he suffered at the hands of his wife. He moved to a refuge in Belgium in 2015. X's wife and daughter moved to France in 2015. The Belgian State terminated X's right of residence on the grounds that he had not adduced evidence that he had sufficient resources to support himself. Divorce proceedings were commenced in July 2018 ?-long after the EEA spouse left X and Belgium.
Advocate General (AG) opinion
AG Szpunar's opinion argued that the rights of a TCN spouse cannot automatically be regarded as lost following the departure of the EEA spouse from the relevant Member State, and examination of the individual case was required.
He argued that the judgment in NA needed to be updated as Articles 12 and 13 should not be conflated as the Directive aimed to provide legal safeguards to family members dependent on others for their right of residence. Considering the articles together allowed for threats or blackmail of divorce or of departure by an EEA partner. The AG argued that in instances of domestic violence, retained rights arise from the time of domestic violence and divorce, rather than being reliant on the date of initiation or decree absolute.
Court of Justice decision
The Court of Justice agreed with AG Szpunar that the risk of blackmail or pressure in relation to departure and divorce would be contrary to the objective of ensuring protection of the victim of domestic violence, and held that:
'...contrary to what was held in paragraph 51 of the judgment of 30 June 2016, NA (C-115/15, EU:C:2016:487), it must be held that, in order to retain the right of residence on the basis of point (c) of the first subparagraph of Article 13(2) of Directive 2004/38, divorce proceedings may be initiated after the departure of the EU citizen from the host Member State.' (§43)
This is positive for TCN spouses who are victims of domestic violence. However, the Court of Justice muddied the waters somewhat with the rest of the paragraph:
'in order to ensure legal certainty, a third-country national...victim of acts of domestic violence...and in relation to whom divorce proceedings have not been initiated before the departure of that spouse from the host Member State-can rely on the retention of his or her right of residence...only in so far as those proceedings are initiated within a reasonable period following such departure.'
On the facts before it, the Court of Justice judged that X 'initiated divorce proceedings on 5 July 2018, that is, almost three years after the departure of his wife and their daughter from the host Member State, which does not appear to represent a reasonable period'. (§45).
A 'reasonable period' would normally be left for the domestic court to assess on the basis of the individual facts of the case, but it would seem sensible that it would allow for initiation of proceedings at least six months after departure, as continuous residence for the purpose of acquisition of permanent residence under Directive 2004/38 is not broken due to absence of six months (or 12 months if there is good reason, such as pregnancy etc).
Practical implications of this case
Had there been no Brexit, this case would have been of great and immediate significance for UK practitioners-it would have been possible to advise the victims of domestic violence to apply for residence cards based on retained rights under Directive 2004/38 even where their spouses had left the UK prior to divorce proceedings being initiated. It would have been possible to rely on the case directly without any amendments to the EEA regulations. This would have been more advantageous than the approach of the UK Supreme Court in Baigazieva  EWCA Civ 1088 (discussed here).
Under the terms of Article 4 of the Withdrawal Agreement, UK courts, tribunals and administrative authorities will continue to be bound by relevant decisions of the CJEU that are decided throughout the transition period, and to have 'due regard' to such decisions after the end of the transition period. This is implemented in the UK via the European Union (Withdrawal Agreement) Act 2020.
The impact of the case may prove to be largely academic in relation to enabling continued residence in the UK for many individuals. The rights of the victims of domestic violence are already protected under Appendix EU. Applicants are eligible to apply to the EUSS on the basis of retained rights where they provide evidence that their relationship with the EEA citizen has broken down permanently due to domestic violence or abuse, and that they were resident in the UK when the relevant family relationship broke down.
However, having 'rights' recognised rather than being granted LTR under Appendix EU could be important for future naturalisation applications, as lawful residence required under the British Nationality Act 1981 is different from 'residence' under Appendix EU.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.