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Advocate General: Rights of same-sex married couples should be recognised by all Member States
Date:12 JAN 2018
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The European Court of Justice has been advised that the rights of same-sex spouses must be recognised by every EU Member State, even if a nation’s government does not allow gay marriage.

The landmark statement came from the ECJ’s advocate general Melchior Wathelet, who in an official legal opinion stated there had been an ‘evolution’ in recent times, meaning ‘the term marriage means a union between two persons of the opposite sex can no longer be followed’.

In the Advocate General’s opinion, the term spouse in EU law must be ‘interpreted autonomously and uniformly throughout the EU’, adding that it ‘refers to a relationship based on marriage while nevertheless being neutral as to the sex of the persons concerned and indifferent as to the place where that marriage was contracted’.

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The Advocate General’s recommendation to the Court of Justice will now be considered by a panel of judges, and if upheld will become law across the EU. This means EU citizens will be allowed to bring in their same-sex spouses from non-EU countries to live with them in any Member State under free movement rules, a right some countries only recognise for opposite-sex marriages.

Equal playing field

Nichola Carter, founder of Carter Thomas Solicitors, comments: 

'Many same-sex couples living across the EU and those seeking to return with same-sex partners should be able to benefit and ensure that, in particular, their non-EU partners can make immigration applications on an equal playing field’.

Landmark Chambers barrister Declan O’Callaghan believes the move is crucial to move the EU law into the future:

'Same-sex marriages are now part of the modern reality and as such the law should not seek to cut itself off from society by ignoring the position as it actually is, to do so otherwise would result in the rule of law losing its effectiveness’.

Free movement 

The case at the centre of the recommendation is Relu Adrian Coman and Others v Inspectoratul General  pentru Imigrări and others: Case C-673/16.

Mr Coman, a Romanian national, married his US husband, Mr Hamilton, in Brussels in 2010.

In 2012 they requested the Romanian authorities to issue them with the necessary documents that would permit Mr Hamilton to exercise the freedom to join his husband in Romania.

The Romanian authorities refused to grant such right of residence on the ground that as Romania did not recognise same-sex marriages, Mr Hamilton could not be classified as a spouse.

However, as O’Callaghan explains the, Advocate General’s statement to the Court of Justice confirmed that the legal issue was not the legalisation or otherwise of same-sex marriage: 

‘Rather, it was one of free movement of EU citizens and so while a Member State is free to decide as to whether it will or will not provide for same-sex marriage in its own domestic legal system, it is required to fulfil its obligations under EU law and this include the prohibition as to placing barriers upon free movement.’

Work to be done 

If the Court of Justice accepts the opinion of the Advocate General, Carter also acknowledges there is far more work to be done when it comes to equality:

‘While these changes are welcome, it would be good to see the UK and EU turn their attention now to making positive change and ensuring that those who identify as gender neutral and other members of the LGBTQI+ community no longer have to fight for basic human rights to be recognised.’

Kingsley Napley partner, Andrew Tingley, says the decision could have interesting consequences for the UK, because although it recognises same-sex marriage, once the UK leaves the EU, British citizens will no longer benefit from free movement:

‘Consequently, in those EU countries which do not recognise same sex marriage, British Citizens will be at a disadvantage. 

EU citizens currently living in the UK with a citizenship of a country which currently does not recognise same sex marriage will no longer be able to exercise their freedom of movement rights in accordance with Surinder Singh principles.’