Same-sex spouses can reside in any EU country
Marc Fernández de la Peña, Immigration Department Lawyer. AGM Abogados
As EU citizens, we have the right to reside in any other Member State for over three months if we decide to work in the host country or if we have sufficient resources for ourselves and our family members not to become a burden on the social assistance system of the host Member State during our period of residence.
We talk about the right of residence because all EU citizens can use their freedom of movement and, therefore, of residence in an effective way in any Member State in accordance with article 7 of Directive 2004/38/EC.
That Directive states that the right of residence also extends to family members who are not nationals of a Member State accompanying or joining the Union citizen in the host Member State.
Who can be classified as “family members”?
The following are understood to be family members: the spouse, the partner with whom the Union citizen has contracted a registered partnership and any other member of the family unit who depends on or lives with the Union citizen (for example, children or parents).
In that sense, not all Member States recognise same-sex marriage in their internal legislation; therefore, can the right of residence be granted to the same-sex spouse of a Union citizen in their territory for over 3 months?
The answer is yes. On June 5th 2018, the Court of Justice of the European Union ruled that the same-sex spouse, a national of a country that is not an EU Member State, who has married a Union citizen in another Member State also has the right of residence in the other state even if it does not recognise same-sex marriage in its national legislation. At present, there are six EU countries which do not envisage any form of legal partnership between people of the same sex (either through marriage or registered partnership): Bulgaria, Lithuania, Poland, Slovakia, Latvia and Romania.
Let’s assume the following: a Spaniard marries a Colombian national in Spain and subsequently they decide to move to Poland for work reasons. Can a residence permit be requested for the Colombian as the Spaniard’s spouse?
Following the interpretation given by the European Court of Justice, the Colombian has the right of residence as the Spaniard’s spouse since “spouse” is a gender neutral term and denying the Colombian the right of residence contravenes article 7 of the Directive and article 21.1 of the TFEU regarding the right of Union citizens to move and reside freely within the territory of the Member States, because otherwise the Spaniard would be deprived of the freedom of movement and be forced to leave Poland since he/she would be unable to reside with his/her spouse.
Since Spain recognises both same-sex marriage and registered partnerships, there are no obstacles to processing the residence permits for such spouses in Spain; nevertheless, the criterion established by the CJEU must be respected when such couples move to any of the aforementioned countries which do not recognise their partnership.
AGM Abogados provides advice on how to prepare prenuptial files and register domestic partnerships and the subsequent processing of residence permits as family members of EU citizens. Contact us!