EU Member States must recognise same-sex spouses’ residency rights.

All EU countries must respect the residency rights of the same-sex spouses, even those states, that have not legalised gay marriage 

 

According to the rule of European Court of Justice, member states must recognise the free movement rights of all married couples, independently of their sexual orientation or gender.  

 

The ruling cleared the case when an American gay couple accused the Romanian authorities of discrimination. Adrian Coman, a Romanian citizen, wanted to live there with his American husband, Claibourn Robert Hamilton. They married in Brussels in 2010. The Romanian authorities refused the residency application because he does not qualify or classify in the Eastern European country as a spouse of an EU citizen. After a lengthy local process, Romania’s constitutional court referred the case to the ECJ in Luxembourg. 

 

In January 2018, a senior adviser to the ECJ, Advocate General Melchior Wathelet, announced that the term “spouse” could include (according to the freedom of residence rules for EU citizens and their family members – FoM) spouses of the same sex. The European Union’s law allows a spouse of an EU national from a foreign, third country to join the spouse in the EU country where the European citizen resides.

 

In the European Union, 17 Member States legalised the marriage of same-sex couples. Meanwhile, Romania, Slovakia, Bulgaria, Latvia and Lithuania do not recognise same-sex relationships in their legal systems. 

 

“Although the member states have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory,” stated the ruling of the ECJ. 

 

The court stated that according to the EU right, the term “spouse”, is a gender-neutral term, which refers to a person joined to another person by marriage. And this is the reason, why it “may, therefore, cover the same-sex spouse of an EU citizen”.

 

The landmark decision showed that EU countries cannot use the illegality of same-sex marriage in the future to do not let the husband or wife of an EU citizen live with the spouse, Brussels now guarantees this right. The precedent case does not oblige the legislators of the EU countries to recognise gay marriage, and the ECJ can not meddle directly in national affairs. 

 

The Romanian judges will now issue a final decision but must take the EU judgment into account.

 

Following the judgment, Mr Coman said to journalists: “We can now look in the eyes of any public official in Romania and across the EU with certainty that our relationship is equally valuable and equally relevant.”

 

The following EU Member States recognised same-sex marriage: Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, Netherlands, Portugal, Spain, Sweden and the United Kingdom (except Northern Ireland). Austria will legalise gay marriage from 2019. Other eight EU states permit some civil unions, which mostly grants the same rights to same-sex spouses as the marriage: Croatia, Cyprus, Czech Republic, Estonia, Greece, Hungary, Italy, and Slovenia.

 

Do you want to become a resident or citizen of the European Union? Most of the EU Member States offer investors’ or entrepreneurial immigration programs for LGBT applicants. Ask for detailed information here