Case C‑115/15

Secretary of State for the Home Department

v

NA

(Request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division)]

‛Reference for a preliminary ruling — Articles 20 and 21 TFEU — Directive 2004/38/EC — Article 13(2)(c) — Regulation (EEC) No 1612/68 — Article 12 — Right of residence of family members of a Union citizen — Marriage of a Union citizen and a third country national — Domestic violence — Divorce after the departure of the Union citizen — Retention of right of residence of a third country national with custody of children who are Union citizens’

Summary — Judgment of the Court (First Chamber), 30 June 2016

1. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Retention of the right of residence of family members in the event of divorce — Third-country national subject to domestic violence during the marriage, divorced from a Union citizen who left the host Member State before commencement of divorce proceedings — No right to retain

   (European Parliament and Council Directive 2004/38, Art. 13(2)(c))

2. Freedom of movement for persons — Workers — Right of residence of family members — Third-country national with sole custody of Union citizen children after divorce from a Union national who worked in the host Member State — Lawfulness of right of residence

   (Council Regulation No 1612/68, Art. 12)

3. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Minor Union citizen resident since birth in the host Member State and third-country national parent with sole custody of that minor — Lawfulness — Condition — Whether obliged to satisfy the condition of having sufficient resources and comprehensive sickness insurance in the Member State of residence — Determination by the referring court

   (Arts 20 TFEU and 21 TFEU; European Parliament and Council Directive 2004/38, Art. 7(1))

1.  Article 13(2)(c) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a third-country national, who is divorced from a Union citizen at whose hands she has been the victim of domestic violence during the marriage, cannot rely on the retention of her right of residence in the host Member State, on the basis of that provision, where the commencement of divorce proceedings post-dates the departure of the Union citizen spouse from that Member State.

   It is apparent, first, from the wording employed both in the heading and in the text of Article 13(2) of Directive 2004/38, that provision is made for the right of residence, to which, on the basis of that provision, a Union citizen’s family members who do not have the nationality of a Member State are entitled, to be retained, in particular, in the event of divorce.

   Second, as regards the context of that provision, Article 13(2) of Directive 2004/38 constitutes a derogation from the principle that Directive 2004/38 confers rights of entry into and residence in a Member State not on all third-country nationals, but solely on those who are a ‘family member’, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national. That provision covers the exceptional cases where divorce does not mean the loss of the right of residence of the third-country nationals concerned, under Directive 2004/38, when, following their divorce, those third-country nationals no longer satisfy the conditions laid down in Article 7(2) of that directive, and in particular, the condition of being a ‘family member’ of a Union citizen.

   Last, as regards the aims of Article 13(2) of Directive 2004/38, that provision corresponds to the objective, stated in recital 15 of that directive, of providing legal safeguards for family members in the event of divorce, annulment of marriage or termination of a registered partnership, taking measures in that respect to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence on a personal basis. In that context, it is apparent from the explanatory memorandum of the proposal for that directive that the purpose of the envisaged provision, now Article 13(2) of Directive 2004/38, is to offer certain legal safeguards to third-country nationals whose right of residence is dependent on a family relationship by marriage and who could therefore be open to blackmail accompanied by threats of divorce, and that safeguards are necessary only in the event of final divorce, since, in the event of de facto separation, the right of residence of a spouse who is a third-country national is not at all affected.

   It follows that the application of Article 13(2) of Directive 2004/38, including the right derived from Article 13(2)(c) thereof, is dependent on the parties concerned being divorced.

   Accordingly, where a third-country national has been the victim during her marriage of domestic violence perpetrated by a Union citizen from whom she is divorced, that Union citizen must reside in the host Member State, in accordance with Article 7(1) of Directive 2004/38, until the date of the commencement of divorce proceedings, if that third-country national is to be entitled to rely on Article 13(2)(c) of that directive.

   (see paras 40-42, 45-48, 50, operative part 1)

2.  Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community must be interpreted as meaning that a child and a parent who is a third-country national and who has sole custody of that child qualify for a right of residence in the host Member State, under that provision, in a situation where the other parent is a Union citizen and worked in that Member State, but ceased to reside there before the child began to attend school in that Member State.

   In that regard, the right of access of the children of migrant workers to education in the host Member State depends on the child concerned first being settled in the host Member State, and consequently children who have settled in that Member State in their capacity as family members of a migrant worker, as well as the children of a migrant worker who have resided since birth in the Member State in which their father or mother is or was employed, may rely on that right in that Member State. Article 12 of Regulation No 1612/68 seeks in particular to ensure that children of a worker who is a national of a Member State can, even if the latter has ceased to pursue the activity of an employed person in the host Member State, undertake and, where appropriate, complete their education in that Member State. It follows that the right of children to equal treatment in access to education does not depend on the circumstance that their father or mother retains the status of migrant worker in the host Member State. Further, Article 12 of Regulation No 1612/68 does not require, before a child can qualify for the right laid down by that provision, that the parent, the former migrant worker, should still reside in the host Member State on the date when the child begins to attend school or university, nor that the parent should continue to be present within that Member State throughout the period of attendance at school or university.

   Last, the right of access to education implies that the child of a migrant worker or former migrant worker has an independent right of residence, when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence. Where the children enjoy, under Article 12 of Regulation No 1612/68, the right to continue their education in the host Member State although the parent who is their carer is at risk of losing her right of residence, if that parent were denied the possibility of remaining in the host Member State during the period of her children’s education, that might deprive those children of a right which is granted to them by the EU legislature.

   (see paras 54-56, 59, 64, 65, operative part 2)

3.  Article 20 TFEU must be interpreted as meaning that it does not confer a right of residence in the host Member State either on a minor Union citizen, who has resided since birth in that Member State but is not a national of that State, or on a parent who is a third-county national and who has sole custody of that minor, where they qualify for a right of residence in that Member State under a provision of secondary EU law. In such circumstances, the first condition on which the possibility of claiming a right of residence in the host Member State under Article 20 TFEU depends, namely that the person concerned does not qualify for a right of residence in that Member State under European Union secondary law, is not met.

   Article 21 TFEU must be interpreted as meaning that it confers on that minor Union citizen a right of residence in the host Member State, provided that that citizen satisfies the conditions set out in Article 7(1) of Directive 2004/38, including the condition of having sufficient resources not to become a burden on the social assistance system of the host Member State during the period of residence, and having comprehensive sickness insurance cover, which it is for the referring court to determine. If so, that same provision allows the parent who is the primary carer of that Union citizen to reside with that citizen in the host Member State. A refusal to allow a parent, whether a national of a Member State or of a third country, who is the carer of a minor child, who is a Union citizen and who has a right of residence under Article 21 TFEU and Directive 2004/38, to reside with that Union citizen in the host Member State would deprive that citizen’s right of residence of any useful effect, since enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence.

   (see paras 71, 72, 74, 76, 80, operative part 3)