Retention Of Residence Rights In The Event Of Divorce Following Domestic Violence (X V Belgian State)

• Published date: 17 November 2021
• Subject Matter: Immigration, Family and Matrimonial, General Immigration, Divorce
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Catherine Taroni

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.

Background

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...