ECJ: A Member State cannot deny residency rights to a same-sex spouse just because it does not recognise same-sex marriages

European Court of Justice: In a ground-breaking ruling, the European Court of Justice has directed all member States to recognize the residency rights of same-sex spouses, even if the State does not allow same-sex marriages.

The case before the ECJ was involved Mr. Relu Adrian Coman, a Romanian national and Mr. Robert Clabourn Hamilton, an American national, who lived together in the United States for four years before getting married in Brussels in 2010. Mr. Hamilton was, however, denied the right of residence in Romania beyond three months, on the ground that he could not be considered in Romania as a ‘spouse’ of an EU citizen as Romanian law does not recognize marriage between persons of the same sex. The couple then approached the Constitutional Court, Romania, which in turn requested the ECJ whether Mr. Hamilton may be considered as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement and must, therefore, be granted a permanent right of residence in Romania.

Court observed that in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex. Such person has right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. This derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38. Further, it noted that recital 31 of Directive 2004/38 inter alia prohibited discrimination on the ground of sexual orientation by the Member States. Court also held that the word ‘spouse’ used in Article 2(2)(a) in definitions in gender neutral. [Relu Adrian Coman v. Inspectoratul General pentru Imigrari and Ministerul Afacerilor Interne, Case C-673/16, dated 12-06-2018]

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