Same sex marriage and free movement

Six EEA countries now perform same sex marriages: Belgium, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden.   Outside the EU/EEA, Canada, Argentina, and some US states (including New York, Vermont, Connecticut, Iowa and Massachusetts) also happily marry same sex couples.

The EU free movement Directive 2004/38/EC does not explicitly refer to same sex marriages.   Point 2 of Article 2 does talk about “spouses”  and “partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State” (see full definition of direct “Family Member”).

An older ECJ case, State of the Netherlands v Ann Florence Reed. [1986] EU ECJ R-59/85 (17 April 1986), seems to leave plenty of room for same-sex spouses to be just like any other spouse in “a marital relationship”:

14 Article 10 (1) of Regulation no 1612/68 provides that certain members of the ‘family‘ of a worker, including his ‘spouse’, irrespective of their nationality, ‘have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state’.

15 In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term ‘spouse’ in Article 10 of the regulation refers to a marital relationship only.

Are there EEA member states who treat a same sex spouse in exactly the same ways as a opposite sex spouse?   I would guess that the six member states that perform their own same sex marriages would likely recognize marriages done elsewhere.  (Please add a comment to this page if you know more!).

How does the UK handle same sex marriages, with respect to EU free movement law?    Instead of directly recognizing it, they work around the problem and transform it (conveniently) into a “civil partnership”.    The relevant UKBA IDI (Chapter 8 Section 2 Annex H) says:

4    FOREIGN CIVIL PARTNERSHIPS

Some people may have already formed a civil partnership or had a same gender marriage abroad. In certain cases this relationship will be recognised in the UK as a civil partnership and the partners will be treated as if they had formed the civil partnership in the UK. Schedule 20 to the Civil Partnership Act 2004 sets out a list of recognised foreign civil partnerships, as below:

[… list of various places where same sex marriage and civil partnerships are performed …]

This definition  is then incorporated into the The Immigration (European Economic Area) Regulations 2006 through a footnote: “(c) Civil partner has the meaning given by […]”

It is worth noting that UKBA’s normal marriage rules would not prohibit same sex marriages properly done in other countries.  Unlike the requirements for marriage done in the UK, this has no requirement that it must be a man and a woman:

Chapter 8, Section 1, Appendix B: Recognition Of Marriage and Divorce

2. MARRIAGE OVERSEAS

The recognition of any marriage which has taken place overseas is governed by the following:

• is the type of marriage one recognised in the country in which it took place?
• was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place? (This relates to the requirements for the marriage ceremony itself).
• was there anything in the law of either party’s country of domicile (at the time of the marriage) that restricted his/her freedom to enter the marriage?

If the answers to the above questions are respectively, “yes”, “yes” and “no” then the marriage is valid whether or not it is polygamous.

I suspect other EU member states will not be so adept at handling applications based on same sex marriages.   I am curious specifically how Ireland will handle such applications.   I’m willing to bet on an eventual referral to the ECJ!

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