On the Bride’s side? Victims of domestic violence and their residence rights under EU and Council of Europe Law
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | 10.1177/0924051919884756 |
| Author | Vladislava Stoyanova |
| Subject Matter | Articles |
Article
On the Bride’s side? Victims
of domestic violence and their
residence rights under EU
and Council of Europe Law
Vladislava Stoyanova
Lunds Universitet Juridiska Fakulteten, Sweden
Abstract
Migrant women victims of domestic violence might face a stark choice between leaving an abusive
relationship and tolerating the abuses so that they can preserve their residence rights in the host
country. EU law suffers from some major limitations in addressing this situation. In view of the EU
ratification of the Council of Europe Convention on Preventing and Combating Violence against
Women (‘the Istanbul Convention’), will the EU be required to take new measures in light of the
demands imposed by Article 59 of the Istanbul Convention that addresses the residence rights of
migrant women victims of violence? By clarifying these demands and juxtaposing them with the
relevant EU law standards, this article shows the divergences and convergences between the two
regional European legal orders. It also forwards concrete suggestions as to which EU rules might
need to be modified.
Keywords
domestic violence, residence status, migrant women
1. Introduction
Immigration law creates power imbalances when one family member derives residence rights
through the other.
1
These power imbalances become particularly problematic when the family
relationship is characterised by domestic violence, a context within which migrant women face
Corresponding author:
Vladislava Stoyanova, Associate Professor, Faculty of Law, Lund University, Lilla Gra
˚bro
¨dersgatan 4, 222 22 Lund, Sweden.
E-mail: vladislava.stoyanova@jur.lu.se
1. Council of Europe (‘CoE’), Parliamentary Assembly, Protecting Migrant Women in the Labour Market, Resolution
1811 (2011) para 7.2.1; Resolution 1478(2006) Integration of Immigrant Women in Europe, para 7.1.11.
Netherlands Quarterly of Human Rights
2019, Vol. 37(4) 311–335
ªThe Author(s) 2019
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distinctive difficulties.
2
Under these circumstances, migrant women as dependent parties might
face a stark choice between remaining in the abusive relationship so that they can preserve their
residence rights in the host country or leaving the relationship to prevent further abuses. The
second option, however, might also imply withdrawal of residence rights and an obligation to
leave the host country since the initial reasons for the conferral of these rights are not anymore
present upon the dissolution of the relationship.
EU law incorporates two provisions that are pertinent to this type of circumstances. The
first one can be found in Directive 2003/86/EC of 22 September 2003 that determines the
conditions for the exercise of the right to family reunification by third country nationals
residing lawfully in Member States (‘the Family Reunification Directive’). Article 15(3) of
this instrument stipulates that EU Member States ‘shall lay down provisions ensuring the
granting of an autonomous residence permit in the event of particularly difficult circum-
stances’.
3
The second pertinent provision is Article 13 of the Council Directive 2004/38/
EC on the rights of citizens of the Union and their family members to move and reside freely
within the territory of the Member States (‘the Free Movement Directive’). Pursuant to this
Directive, to encourage free movement, when EU nationals exercise residence rights in
another Member State, they can bring their third country national family members (e.g. spouses).
4
The spouse subsequently derives the right to reside in the host Member State from the EU
national’s right that she has accompanied or joined.
5
Article 13(2)(c) of the Free Movement
Directive, referred to as the ‘domestic violence provision’ that is at the core of the analysis in
this article, allows the third country national spouse to retain this right even in case of divorce, if
she has been a victim of domestic violence.
6
As it is evident from the preamble of the Free Movement Directive, the prevention of abuses
such as domestic violence was a justificati on for including the domestic violence provision.
7
Despite this commendable objective, this article argues that Article 13(2)(c) sits uneasily within
the overall logic of the Directive, which renders the achievement of the objective of preventing
violence difficult. This will be illustrated by reference to the judgment Secretary of State for the
Home Department v N.A. of the Court of Justice of the European Union (‘CJEU’ or ‘Court’), the
only occasion so far where the Court has been offered the opportunity to interpret the provision.
8
The achievement of the objective of preventing violence in circumstances where migrant women’s
residence rights are dependent on those of their spouses could have be en possible in another
context, namely the Council of Europe Convention on Preventing and Combating Violence against
2. ‘Confronted with the language barrier and family pressure, they often end up isolated and unable to express their views
and have only limited access to any facilities that exist to protect the victims of domestic violence’ see CoE Parlia-
mentary Assembly, Migrant Women: at Particular Risk from Domestic Violence, Resolution 1697 (2009) para 1.
3. The aim of the provision was to protect women who have suffered domestic violence by not withdrawing their residence
permit. See COM(1999) 638 final, 21.
4. See para 5 of the preamble of the Directive. Article 2(2) of the Directive defines family members. See generally Elspeth
Guild, Steve Peers and Jonathan Tomkin, The EU Citizenship Directive: A Commentary (Oxford University Press 2014)
166.
5. Article 3 of the Directive is clear to the effect that it applies to the circumstances of both family migration and family
reunification.
6. Since Article 13(2)(c) of the Free Movement Directive applies to third-country national spouses of migrant EU nationals
who abuse them, it is not applicable if the EU national has not moved to another EU Member State.
7. See Recital 15 of the Preamble of the Free Movement Directive.
8. Case C-115/15 Secretary of State for the Home Department v N.A. [2016] (First Chamber) ECLI: EU: C:2016:487.
312 Netherlands Quarterly of Human Rights 37(4)
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