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Same-sex spouses should benefit from free movement, EU Advocate General says


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Some excitement at this opinion of Advocate General Wathelet at the Court of Justice of the European Union:

According to Advocate General Wathelet, the term ‘spouse’ includes, in the light of the freedom of residence of citizens of the EU and their family members, spouses of the same sex.

Although Member States are free to authorise marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his or her spouse of the same sex, a national of a non-EU country, a right of permanent residence in their territory.

The above summary taken from the CJEU press release.

The case is C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Others. Mr Coman is a Romanian citizen who married an American man in Belgium in 2012 and now seeks a residence permit for his husband to live and work in Romania. Dr Alina Tryfonidou over on the EU Law Analysis blog summarises the response:

He was told that such a permit would be refused on the ground that the couple’s same-sex marriage could not be recognised in Romania as the Romanian Civil Code bans the recognition of same-sex marriages performed abroad; if Mr Coman’s spouse was a woman, the marriage would have been automatically recognised in Romania and Mr Coman’s spouse would have been entitled to a residence permit by virtue of that.

It’s not about legalising gay marriage in Romania, only about recognising foreign gay marriages for the purposes of EU free movement law. The case boils down to whether the term “spouse” in Directive 2004/38 includes a spouse of the same sex. AG Wathelet argues that it does.

This does not mean that the Court of Justice itself will decide that way, although more often than not the judges do follow where the AG leads. We’ll give that final decision more extensive coverage.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.