SAWAL . SCHÜLLER . HANKE | Immigration law implications of a divorce between EU nationals and third-country nationals
divorce, EU freedom of movement and residence, Directive 2004/38/EC, Sect. 21 TFEU, residence, immigration
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Immigration law implications of a divorce between EU nationals and third-country nationals

Immigration law implications of a divorce between EU nationals and third-country nationals

A divorce between a EU-citizen and a non-EU-citizen can have various consequences with regard to a residence permit. Often, minor children are affected. In such cases we help our clients to make sure that parental custody can be exercised within the EU even after a divorce.

See the following case:

A spanish citizen is married to a Columbian, the couple has a minor child. First, the family resides in Germany but later moves to the U.S. on the basis of a working-visa of the husband. After a few years the couple separates and files for divorce within the U.S.. The husband plans to remigrate to Germany (workwise) together with the child. For reasons of parental custody he seeks legal advice on whether the mother (his soon divorced wife) can accompany him. The wife is unemployed.

Legal analysis:

In this case, the re-entry to the European Union is ruled by the Directive 2004/38/EC on the right of EU citizens and their families to move and reside freely within the EU. Germany has adopted the Directive by the national Act on the General Freedom of Movement for EU Citizens (Freedom of Movement Act/EU).

For the spanish husband and the child (also a spanish citizen) the remigration to Germany is not problematic. Both of them exercise their right to freedom of residence within the EU according to Directive 2004/38/EC.

The scope of this right demands that a non-EU-spouse may accompany his/her partner (who is EU-citizen). Otherwise, the freedom of residence within the EU would be undermined essentially.

However, the non-EU-citizen is not granted a genuine right of residence but only a derived right. The spouse will be issued a document of proof, called „EU-Aufenthaltskarte“. In our case the columbian wife possesses a valid EU-Aufenthaltskarte because the family resided in Germany prior to moving to the U.S.

Does this entitle her to re-enter Germany?

The EU-Aufenthaltskarte does not contain a right of residence. It is of merely declaratory nature. If the requirements for the residence are not met, the document turns void and may be withdrawn. Coming back to our case, we face two problems. First: on leaving the European Union for a number of years the husband stopped exercising his right to residence within the EU. His wife has no ground for a genuine residence. Secondly, the couple is about to get divorced. As soon as the divorce is legally effective the marriage cannot unfold rights or privileges any longer; the right to accompany the spouse within the EU terminates.

Seen in that light, our columbian (ex-)wife has a weak position for re-entering the EU.

Obviously there is a gap in the system provided by the Directive 2004/38/EC, especially when minor children are involved who have mainly been taken care of by the parent who is not a EU-citizen.

Although the Directive does grant dependants (e.g. parents of a EU-citizen) a right to accompany family members, the columbian mother in our example does not fall under the scope of this privilege and may not accompany her child despite its EU-citizenship. The Directive aims at a different scenario: to enable EU-nationals to sustain their (elderly) parents who do not possess an EU-passport. Minor children without income do not qualify to have their non-EU-parent move to the European Union with them.

This leads to a dead-end: minor EU-citizens would be forced to split from their non-EU-parent when taking residence within the EU (in case of a divorce). Depending on the specific case this would pose an unreasonable burden on a child – as a consequence the child would have to resign its right to freedom of residence in the EU.

The European Court of Justice (ECJ) has dealt with a number of such cases and developed a solution that was subsequently accepted by the Federal Administrative Court of Germany (Bundesverwaltungsgericht, Az. 1 C 16.17 of 12 July 2018). The ECJ holds that an exceptional, genuine right to take residence within the EU exists under specific conditions. Legal basis for that right is, according to the ECJ, Sect. 20, 21 of the Treaty of the Functioning of the European Union (TFEU). It applies to special cases of dependancy between a minor child and a parent who does not have the EU-citizenship, when the child would de facto be forced to abandon its right to EU freedom of movement and residence just because his/her parent is a non-EU-citizen and is denied residence.

This jurisdiction of the ECJ aims at strengthening the freedom of movement and residence of (minor) EU-citizens and grants – as a sideproduct – an exceptional right to residence to a non-EU-parent.

Such cases are still rather unfamiliar to german authorities. For us as attorneys they afford a high level of reason with regard to actual parental custody, the handling of familylife and of the sources of financial child support.

Bettina von Auer