EFTA-case E-1/20

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Deadlines: Motivation ministry:          1 April 2020
Written observations:                          18 May 2020 (ultimate deadline)

Keywords : third country, family members of EEA citizens, residence card, marriage of convenience

Subject :

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.


Facts of the case:

XX was born in Afghanistan. He left the country in 2005 and resided in Pakistan, Iran and Turkey before arriving in Greece in 2008. In 2009 he travelled to Romania. On 24-02-2010 he was granted protection in Romania. XX entered into a civil marriage in Bucharest with XX in 2012. In 2015 the couple arrived in Norway and registered themselves as residing at an address. On 21-02-2016 XX applied for a residence card as a family member of an EEA citizen. The application was dealt with by the Norwegian Directorate of Immigration in cooperation with the police unit dealing with employment and EEA matters. The police conducted several administrative interviews with both spouses. The Norwegian Directorate of Immigration eventually adopted a decision rejecting the application for a residence card because it took the view that XX had entered into the marriage with the main purpose of procuring a right of residence in Norway. An appeal was lodged against this decision which was rejected by the Immigration Appeals Board. The Appeals Board agreed with the Norwegian Directorate of Immigration. Consequently, XX’s appealed to the Supreme Court. The Supreme Court is asking the EFTA Court to articulate the more specific substantive content of the rule in Article 35, including which factual and legal criteria are to be used in the determination of whether one is faced with a marriage of convenience that is caught by the abuse rule laid down in the Directive. The question of interpretation that arises specifically in the present case is whether more is required before a marriage is a “marriage of convenience” within the meaning of the Directive than that the marriage was entered into ”with the main purpose of procuring lawful residence in the realm for the applicant”. XX submits that what marriage entails can vary; marriages are individually and culturally conditioned. Furthermore, in a wealthy European country, there may be other reasons for entering into a marriage than in a poor country. Some marriages are entered into out of love, whilst others are entered into because they give security and a stable life with a foreseeable future. The question may also be asked whether it is a requirement that the reason for entering into marriage may only be emotional satisfaction for it not to be considered to be one of convenience, or whether it is also legitimate to wish to obtain advantages with the marriage, such as improved finances, a better future and the possibility of moving out of a poor country and accepting employment together in another country in Europe. The Norwegian State’s principal submission is that there is a “marriage of convenience” within the meaning of the Directive where the third country national’s main purpose for entering into the marriage was to obtain the right of free movement and residence in the EEA. In such cases, there is an “abuse” that provides grounds for the withdrawal of rights under Article 35 of the Directive. Thus, a key question will be whether the marriage would have been entered into had there not been for the prospect of residence. The EEA citizen’s intention in entering into the marriage is irrelevant. Thus, there may also be a “marriage of convenience” where the EEA citizen understood the marriage to be genuine. It is the situation at the time the marriage is entered into that is decisive in the assessment. If the main purpose of the third country national subsequently changes, for example, the marriage gradually takes greater substantive meaning than it had at the time the marriage was entered into, residence must then be sought on a different basis.


Request for an advisory opinion:

- Which criteria should be the basis for determining whether one is faced with a marriage of convenience covered by the abuse rule in Article 35 of Directive 2004/38/EC? It would be useful if the EFTA Court could especially comment on the following:

a) Does the EEA citizen’s subjective intention for entering into the marriage have any significance for the determination of whether one is faced with a marriage of convenience?

b) If the third country national’s intention is the key factor for determining whether one is faced with a marriage of convenience within the meaning of the Directive, is it a requirement that the third country national’s wish for a right of residence was the sole purpose for entering into the marriage, or is it sufficient that it was the main purpose for entering into the marriage?


Cited (recent) case-law: [2017] UKSC 54

Policy area: JenV-DMB