On March 28, 2019, the Federal Administrative Court in Leipzig ruled that under European Union legislation a spouse from a third country that is married to an EU citizen has the right to reside in Germany and is entitled to the right of free movement even if they live separately from one another and the EU citizen temporarily returns to his/her country of origin (BVerwG 1 C 9.18).
The plaintiff in this case, a Nigerian national, married a Bulgarian national in Greece in 2008. The couple relocated to Germany in 2012 with the purpose of seeking employment. In 2014 the couple separated, and the wife of the plaintiff moved back to Bulgaria alone. She subsequently returned to Germany and has lived in the country separately from the plaintiff since August 2015. The couple divorced in 2016. After the wife left Germany, the Foreigners’ Registration Office determined that the plaintiff had lost his right to reside in the country, because it had derived from his spouse’s right to free movement within the EU. The plaintiff lodged a claim in court but lost his case in the lower courts. The Appeals Court ruled that the plaintiff lost his right to reside in the country when his spouse, the EU citizen, left Germany, and he did not regain the right when she returned because they did not live together.
The 1st Appeals Senate of the Federal Administrative Court overruled the decision made by the Appeals Court. The Federal Administrative Court agreed that when applying relevant case-law from the Court of Justice of the European Union (CJEU) to this case, the plaintiff’s right of residence derived from the couple’s moving to Germany together and the wife’s right to freedom of movement as an EU citizen; the court also held that the plaintiff no longer had this right when his wife left Germany. However, when she returned to the country, he regained the right to reside in Germany for as long as she was (and continued to be) entitled to freedom of movement. The court came to the conclusion that if the wife met this prerequisite, the plaintiff’s right to reside in Germany evolved into an independent right of residence upon the dissolution of their marriage. The court believed it to be irrelevant that the spouses continued to live apart after the wife returned to Germany, because under CJEU case-law the spouse of an EU citizen does not always have to live with the EU citizen in order to derive a right of residence.
European Union law uses the terms “accompany” and “subsequent immigration of family members”, and to meet the definition of these terms, all that is required is for both spouses to reside in the member state in which the EU citizen is exercising his/her right to freedom of movement. This applies in all member states, although there are some exceptions for cases of fraud (including entering into a marriage of convenience) or where the right is being abused. Hence, an EU citizen’s right to reside in a member state under EU law is different from the right to subsequent immigration as a family member, which is determined by national law, and where a residence permit is issued for family reasons, namely (only) for the purpose of re-establishing and preserving the family unit. Furthermore, when the spouses are separated, the right to residence under EU law does not require that the relationship be more than a formal bond of marriage as defined in laws related to marriage and family protection. Since the State Appeals Court did not come to any conclusion on whether the plaintiff’s spouse was entitled to free movement when she got divorced, the Senate at the Federal Administrative Court could not make a final ruling on the case and sent it back to the State Appeals Court for further clarification.
Translated from German into English by Rosa Foyle