Official Journal of the European Union

C 335/14

(Case C-115/15)(1)

((Reference for a preliminary ruling - Articles 20 and 21 TFEU - Directive 2004/38/EC - Article 13(2)(c) - Regulation (EEC) No 1612/68 - Article 12 - Right of residence of family members of a Union citizen - Marriage of a Union citizen and a third country national - Domestic violence - Divorce after the departure of the Union citizen - Retention of right of residence of a third country national with custody of children who are Union citizens))

(2016/C 335/18)

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Secretary of State for the Home Department

Defendant: NA

Intervening party: Aire Centre

Operative part of the judgment

1.Article 13(2)(c) of Directive 2004/38/EC 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that a third-country national, who is divorced from a Union citizen at whose hands she has been the victim of domestic violence during the marriage, cannot rely on the retention of her right of residence in the host Member State, on the basis of that provision, where the commencement of divorce proceedings post-dates the departure of the Union citizen spouse from that Member State.

2.Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as meaning that a child and a parent who is a third-country national and who has sole custody of that child qualify for a right of residence in the host Member State, under that provision, in a situation, such as that in the main proceedings, where the other parent is a Union citizen and worked in that Member State, but ceased to reside there before the child began to attend school in that Member State.

3.Article 20 TFEU must be interpreted as meaning that it does not confer a right of residence in the host Member State either on a minor Union citizen, who has resided since birth in that Member State but is not a national of that State, or on a parent who is a third-country national and who has sole custody of that minor, where they qualify for a right of residence in that Member State under a provision of secondary EU law.

4.Article 21 TFEU must be interpreted as meaning that that it confers on that minor Union citizen a right of residence in the host Member State, provided that that citizen satisfies the conditions set out in Article 7(1) of Directive 2004/38, which it is for the referring court to determine. If so, that same provision allows the parent who is the primary carer of that Union citizen to reside with that citizen in the host Member State.

(1)

OJ C 171, 26.5.2015