Divorcing the EU Spouse and Spouse‘s Departure Prior to Applying for a Residence Permit

Getting divorced is typically something not so pleasant. It becomes more dramatic when your residential status might be endangered. The ECJ ((judgement of July 16, 2015 re C-218/14) had to decide on a case when a couple split up and the European ex-partner left the host country before they applied for divorce. What happens to the non-EU spouse? Does this person’s status remain, change, or end before the three year period has elapsed? Can you simply just reapply for something?  [PPD_PAYTOREADMORE]

Let us tell you what happened. Three third-country citizens (an Indian, a Cameroon, and an Egyptian) had married three European ladies (Lithuanian, German, and Latvian) and all had cohabited for more than four years in Ireland. In all three cases, the women abandoned their men and applied for divorce in their individual home country. The Irish authorities had the opinion that the men could no longer apply for a residence permit because they had already lost their residential status. They believed to have the right opinion even though all men stayed longer than three years in Ireland. The men applied in court against this decision.

Once the citizen of the union leaves the host country for good, then the remaining non-EU family members automatically lose their residential status – by law. This is because their status is dependent upon the European's living in the host country. Understand here as host country that European country where this family lives but is not its citizen. On the other hand, the EU Directive 2004/38/EG determines that non-EU have the right to be in the host country – under certain conditions. Does it suffice that the wives later applied for divorce for the men to retain their status? Since the High Court of Ireland did not feel competent enough to interpret European law, it applied to the European Court of Justice.

ECF held that the men were not entitled to retain their European status; they had lost it – automatically. Art. 7 subsec. 2 Directive 2004/38/EG clearly states that non-Europeans have the right to be in Europe when they accompany or follow their European spouse. If the European departures then they are not cohabiting anymore. The requirements for a European status do not exist anymore.  Game is over!

However, the court also emphasized that the host countries nevertheless could give these third-country citizens an extended protection in order to remain in the country. This would be pursuant to national law and not to the Directive 2004/38/EG.

In Germany, this would mean that the foreigner’s office could provide them a Fiktionsbescheinigung that they can apply for a normal residence permit.


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