Freedom of Movement of Divorced Couple
When a European spouse is divorced from his or her third country national, then the second person loses his or her freedom of movement. Can it be that the freedom of movement is reconstituted when the European spouse returns to the country of residence of the third country national? The Federal Administrative Court decided this question on March 28, 2019 (re 1 C 9.18).
The plaintiff, a Nigerian citizen, married a Bulgarian citizen in Greece in 2008. The couple later relocated to Germany to work. In 2014, the couple separated and the Bulgarian woman returned to Bulgaria. In 2015, she returned to Germany and in 2016 they were officially divorced. Does the plaintiff still enjoy the freedom of movement for Europeans and their direct relatives? If he lost his freedom of movement, did he regain it later, or did he lose it permanently?
Ruling case law of European Court of Justice says that the freedom of movement for a non-European spouse accompanies or follows the European and ends with the Europeans departure. In as far as the Bulgarian woman enjoys the freedom of movement in Germany again also her husband enjoys this right. In the light of a divorce, this status can be maintained – pursuant to the requirements in §3 V no. 1 FreizügG/EU i.c.w. §13 II lit. a Directive 2004/38/EG.
The Federal Administrative Court held that in contrast to domestic law, the marital relationship of a couple is not a key requirement. German law provides that a foreigner can only be granted a permit for family reunion for the purpose of cohabitation - to live together as a married couple. However, European law does not strictly require cohabitation but that the spouse “accompany” and “follow” the European citizen. This is true up to the limit of the abuse of legal rights or fraud (i.e. sham marriage). So, when a mixed European couple decides not to live together anymore, the non-European partner does not automatically lose his or her freedom of movement.
To summarize the situation: The Nigerian entered Germany enjoying the freedom of movement because he accompanied his European wife. He lost freedom of movement during the period when his still-wife had returned home to Bulgaria. His “European” status revived during the period after her return to Germany and the divorce – in as far as she was entitled to freedom of movement. After the divorce, he is entitled to remain so long as he meets the requirements in §3 V no. 1 FreizügG/EU. He needs to be eligible to remain here on his own grounds.
In collaboration with the immigration office, you can expect „hiccups“ when applying §2 VII 2 and 3 FreizügG. In the event a non-European does not follow or accompany his European spouse to live together as a family, this person can lose his freedom of movement. This is what §2 VII 2 and 3 FreizügG currently communicate. Since this is in contradiction to European law, this provision is illegal and is not to be implemented. A hiccup in processing the application will be whether the case decider knows this.