Free Movement of Same-Sex Partners

Published date01 September 1996
DOI10.1177/1023263X9600300304
Date01 September 1996
Subject MatterArticle
Kees Waaldijk *
Free Movement of Same-Sex Partners
§1. Homosexuality and Heterosexuality in Immigration Law
National immigration law is restrictive. It limits the number of persons entitled to
residence. Apart from nationals of the country itself, only limited categories of
foreigners are entitled to residence. The restrictions contained in national immigration
law use many criteria, including nationality, sex and marital status. In combination these
criteria lead to various forms of discrimination
of
same-sex partners.
European law enlarges, to a certain degree, the number
of
persons entitled to residence.
The right to respect for family life, Ifor example, entails in certain circumstances a
right for certain family members to live in the same country. The citizens of the Mem-
ber States of the European Union have been given various rights to go and live in any
other Member State, 2and to be accompanied by their spouses. 3In enlarging the
number
of
people entitled to residence, both branches of European law have made use
of the notion of marriage and related heterosexual concepts. So it remains to be seen
whether European law can really improve the immigration rights of same-sex partners.
§2. Free Movement of (Marital) Status
Marriage is a queer sort of contract.
It
not only creates legal rights and duties between
the two spouses, but also between them and children, creditors and other third parties.
It
is not only a matter of private law, but at least as much a public law institution: it can
be decisive for the amounts of tax to be paid and for the level of social security pay-
*Researcher. Human Rights Research School. Netherlands Institute of Human Rights SIM, University
of Utrecht. This article is based on a paper presented at the seminars Nouvellesformes de conjugalite-
enjeuxpolitiques et legaux (organized by AIDES, Paris. 15 June 1996) and
Obstacles
to Freedom-
immigration
rightsfor
same-sex
couples
within
the
European
Union
(organized by Stonewall, London.
5 July 1996).
1. Article 8 of the European Convention on Human Rights.
2. Articles 3, 8a, 48 and 52 of the European Community Treaty.
3. Article 10 of EEC Regulation 1612/68. [1968]
OJ.
L257/2.
MJ 3 (1996) 271

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