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Refugee Child, by William H. Johnson, from Smithsonian Institution (Flickr)

An EU wide survey which assessed the extent of violence against women across the European Union showed one in three women have reported some form of physical or sexual abuse since the age of 15.

However until very recently, the Court of Justice of the European Union (CJEU) had not had the opportunity of considering how such incidents may affect the right to remain/reside of family members of EEA nationals, in circumstances where the perpetrator of the abuse may have left that country and/or divorced them.

In the NA (Pakistan) Case (C-115/15), which is a reference from the Court of Appeal, the CJEU has been asked to consider this very scenario.

Article 13(2) of the Citizen’s Rights Directive 2004/38 sets out the circumstances in which a non-EEA national family member can retain rights of residence in the event of divorce, annulment of marriage or termination of a registered partnership. These include where prior to initiation of the divorce, termination or annulment proceedings the marriage or registered partnership has lasted at least three years, including one year in the host Member State, and where retention of the right of residence is warranted by particularly difficult circumstances such as having been a victim of domestic violence while the marriage or registered partnership was subsisting.

Beacon of change
Last month, Advocate General (AG) Wathelet delivered his Opinion in NA (Pakistan), which if followed by the General Court of the CJEU itself, will signal a beacon of change for family members who are victims of domestic violence in the UK and elsewhere in Europe.

The case concerned a Pakistani national who married a German national in 2003 in Karachi, Pakistan. NA moved to the UK with her husband in March 2004 but suffered domestic violence, culminating in her having to leave the family home, and seek help from a women’s refuge, when five months pregnant.

A few months later NA’s husband left the UK permanently, subsequently writing to the Home Office and asking them to deport his wife as she no longer had a right to reside. He then unilaterally obtained a talaq (divorce) in Pakistan. NA applied for a residence card on the basis that she had retained a right of residence in the UK as a victim of domestic violence and she also commenced divorce proceedings in the UK. NA’s application for recognition of her retained rights of residence under Article 13(2) was refused on the basis that her husband was not exercising his treaty rights in the UK at the time the divorce became final.

Prior to the Court’s consideration of the NA case, the CJEU had delivered judgment in Case C-218/14 Singh and Others, which was referred from the Irish courts, and concerned three divorcing couples. In each case, the criteria in Article 13(2) were met, except that the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and then initiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The Court ruled that in principle Non EU (third-country national) family members of an EU citizen who moved to another Member State lose their right to reside there under the Directive as soon as the EU citizen leaves that country. Therefore Article 13(2) does not protect them unless divorce proceedings have started before that EU citizen leaves (assuming that the waiting period condition set out in Article 13(2) have also been satisfied).

In NA (Pakistan) AG Wathelet acknowledged the Singh ruling but distinguished it from facts in this case, given this case concerned the application of Article 13(2)(c) – namely situations of ‘particularly difficult circumstance’ including domestic violence. It was necessary to consider this separately as only one of the conditions set out in Article 13(2)(a) – (d) needed to exist in order to trigger a retention of the right of residence. The issue of delay in divorce proceedings was largely irrelevant for Article 13(2)(c) as it was the acts of violence which were the trigger for retaining rights of residence under Article 13(2)(c) – and then divorce. Otherwise the victim of the abuse is left vulnerable to ‘blackmail with threats of divorce’ which according to the Commission’s Explanatory Notes to the 2004/38 Directive, was precisely the protection Article 13(2) was supposed to offer.

Similarly the rational course of application of Article 13(2)(c) is to disregard any subsequent departure by the EEA nationals as ‘given the risk of criminal penalties attaching to conduct constituting domestic violence… . It is not inconceivable that the perpetrator of such acts will seek to leave the territory in which those acts were committed in order to escape possible conviction‘ (at 72). An interpretation of Article 13(2)(c) requiring the EEA national to be exercising treaty rights in the host member state up until divorce in order for the non-EEA national to retain a right of residence would deprive the provision of its effectiveness ‘which lies in affording legal protection to the victims of acts of violence‘ (at 80).

So what does this mean for victims of domestic violence in the UK and other European states? The Opinion in NA (Pakistan), if followed by the Court, would certainly be a first step. However there is still some way to go in securing protection for victims of abuse. Article 13(2) for instance only applies to third country national victims of domestic violence who are married or in registered partnerships. So victims who are in unmarried partnerships, even where the relationship has been recognised by the Home Office, remain without protection.

Furthermore, Article 13(2) contains other stringent requirements which need to be met, such as showing they are workers or self-employed persons, or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover. The fact of the matter is (as the AG’s Opinion recognises), victims of domestic violence are vulnerable, having to lead quite hand to mouth lives, often with young children to look after. In such circumstances it is little surprise that many find it difficult to secure and maintain a job, and therefore meet this requirement.

It is hoped that NA (Pakistan) will herald positive change for victims of domestic violence, preventing further abuse and protecting their rights. It will also undoubtedly provide a clearer platform for any further litigation by victims of domestic abuse.