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22

The same sex spouse of an EU citizen is entitled to reside with his or her partner throughout the European Union. On 5 June 2018, the Court of Justice of the European Union replied to questions referred for preliminary rulings by the Romanian Constitutional Court.

This long-awaited judgment confirms the right of residence of gay couples throughout the European Union, even in countries that do not recognize same-sex marriage.

In the case at the Romanian court, the Romanian authorities denied a residence permit to the American husband of a Romanian man. Romania does not recognize the marriage – which took place in Belgium - as legitimate.

The European Court notes, among other things, that the concept of a spouse within the meaning of EU Directive 2004/38 (concerning the right of free movement and residence) is gender neutral and therefore also applies to spouses of the same sex. However, the ruling mainly discusses the interpretation of Article 21 paragraph 1 TFEU.

Member States of the EU decide for themselves whether to allow marriages between persons of the same sex. However, the Court stated "that a member state 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 that member state’s territory. The free movement of persons is foremost".

This ruling means that same sex married couples have the same rights of residence throughout Europe as opposite sex married couples.

Do you have questions about the procedure for obtaining residence rights for a spouse? Please contact Hans Jager or Elles Besselsen.

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