1. Family in EU Law: When’s a Partner not a Partner? Jessica Guth Bradford University Law School Research Seminar 23 rd February 2011

2. Introduction Paper arises from my PhD research Family Rights in EU migration Focus on partnering and derived rights – Spouses – Civil Partners – Partners Importance of EU migrant status: Economically active is best

3. The Citizens’ Rights Directive "Family member" means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; …

4. Spouses Heterosexual married couple Same-sex married couple????? Same-sex marriage recognised in 5 EU States Recognition in home or host state?

5. Civil Partners Civil Partnership as different from marriage Marriage equivalent status: What does that mean? – Same-sex marriage????? – Equivalent or similar??? Host state recognition required – why?

6. Partners Article 3 CRD – the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (b) the partner with whom the Union citizen has a durable relationship, duly attested. Gender neutral provision What does ‘durable’ and ‘duly attested’ mean?

7. Importance of EU status Article 3(1) CRD: ‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’ Article 7(4) CRD: Only spouse/registered partners fall within definition for EU migrant students – no obvious provisions for partners

8. Partners are not Partners when They are not married They are not civil partnered They can’t prove they are in a durable relationship They want to accompany/join students

9. Why does any of this matters? Important rights attach to EU status Symbolic: – 'The exclusion of same sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples[...]. It may be, as the literature suggests, many same sex couples would abjure mimicking or subordinating themselves to heterosexual norms. Others might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is at issue is not the decision to be taken, but the choice that is available’ Justice Albie Sachs in Home Affairs v Fourie (2005)

10. References Bell, M.(2004) ‘Holding back the tide? Cross-border recognition of same-sex partnerships within the European Union’ European Review of Private Law, 12(6), 613-632 Care Values and Future of Welfare Research Group, University of Leeds http://www.leeds.ac.uk/cavahttp://www.leeds.ac.uk/cava Deech, R. (2010). ‘Civil Partnership’. Family Law 40 p468 Elman, A. (2000). ‘the Limits of Citizenship: Migration, Sex Discrimination and Same-Sex partners in EU law’. Journal of Common Market Studies 38(5) 729 -749 McGlyn, C. (2007). ‘Families and the European Union: law, Politics and Pluralism’. CUP Netherlands v Reed Case 59/85 [1986] ECR 1283 Case C-122/99P and 125/99P D and Sweden v Council [2001] ECR I-4319 Karner v Austria Application No. 40016/98, 27 July 2003