European Court of Justice Rules that Same-Sex Spouses of EU Nationals Should be Granted Residence Rights

Same-sex spouses of mobile EU nationals are family members and should be granted residence rights, rules European Court of Justice.

In an important step towards equality for same-sex partners, European Union Court of Justice (ECJ) ruled last week that same-sex spouses of mobile European Union (EU) nationals fall within the definition of ‘family members’ and must be granted residence rights. Read more in this alert by Fragomen.

Background

Under well-established EU law, family members of EU nationals enjoy the right to move and reside freely within the European Union when they are accompanying their EU citizen family member. For the first time, same-sex spouses of mobile EU nationals now fall within this category of ‘family members’ and can be recognised as dependants when applying for residence rights.

Specifically, this ruling means that for EU nationals who have moved from one EU country to another EU country with their same-sex spouse, the host EU country must acknowledge their marriage when the same-sex spouse applies for residence rights, even if same-sex marriage is not recognised under the host country’s national law.

The case

This case concerned Mr. Relu Adrian Coman, a Romanian national and his husband Mr. Robert Clabourn Hamilton, a US national. The facts provided the ECJ with an unprecedented opportunity to consider the word ‘spouse’ in the context of a marriage between two men in the context of free movement rights.

Mr. Coman and Mr. Hamilton married in Brussels on 5 November 2010. They lived together first in New York, and then in Brussels. In December 2012, the couple asked the Romanian authorities about the conditions under which Mr. Hamilton could apply to live in Romania with his husband for over three months.

On 11 January 2013, Romanian authorities informed the couple that Mr. Hamilton did not have a right of residence in Romania for over 3 months because under Romanian law, marriage between people of the same sex is not recognised. The couple brought an action against the authorities, arguing that the decision amounted to discrimination on the grounds of sexual orientation with regards to the right of free movement within the EU.

The ECJ was asked to consider whether Mr. Hamilton could be regarded as the spouse of an EU national who had exercised his free movement rights.

The ruling

The ECJ noted that the term ‘spouse’ in Directive 2004/38/EC is gender-neutral and refers only to a person joined to another person by the bonds of marriage, which can apply equally to spouses of the same and opposite sex.

Crucially, the ECJ ruled that refusing to acknowledge a marriage between an EU national and his same-sex spouse which has been lawfully entered into in another Member State would interfere with that EU national’s free movement rights. The ability of such nationals to move freely within the EU would vary depending on whether the national law of a Member State recognised same-sex marriages. The Court therefore concluded that for the purposes of granting residence rights only, the same-sex marriage of such a couple should be acknowledged by the host state and residence rights granted.

What does this mean going forward?

The ruling does not mean that all EU Member States need to recognise same-sex marriage in national legislation. The ECJ emphasised that Member States are free to decide on this question. Nevertheless, for the purpose of granting residence rights, same-sex marriages need to be recognised regardless of whether they are recognised by the country in national law.

This is an important step in ensuring that EU nationals who exercise their free movement rights can now move with their same-sex spouse to any host EU country, not just those in which same-sex marriages are recognised in national law.

Of course, other requirements to qualify for a dependant residence permit will still apply. If you are considering a move within the EU and have any queries about this case, or the rules for dependant permits in general, please contact us at [email protected].