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James Debono
Through a directive adopted on 30 April 2004, EU citizens and their family members can move within the Union for three months without any formalities, other than needing to produce identity documents.
But according to a spokesperson for the Ministry of Justice and Home Affairs, the directive will not result in the recognition of relationships or partnerships that do not exist under Maltese law, even if such relationships or partnerships are registered in another EU member state.
The new directive accentuates the discrepancy between European states which go as far as recognising gay marriages, and countries like Malta who do not even recognise cohabiting opposite sex couples.
While forbidding discrimination based on sexual orientation in its preamble, the directive gives precedence to national legislation when it comes to the free movement of unmarried couples. Yet the directive also calls on EU states to “facilitate” the entry of unmarried couples.
Non-EU nationals
The most innovative aspect of the directive is that it also gives freedom of movement to spouses hailing from countries from outside the European Union who are married or recognised as partners of EU citizens.
Through this directive the Brazilian wife of a Swedish citizen living in Malta would gain an automatic right to join her husband and to become a Maltese resident after five years.
“The directive provides a better definition of the status of family members so that such family members who do not have the nationality of a member state can enjoy the same rights as the citizen who they have accompanied,” a ministry spokesperson told MaltaToday.
EU citizens and their family members can stay for longer than 3 months in order to work or study, or if they have sufficient resources to support themselves. After 5 years EU citizens acquire the right for permanent residence in the member state.
Scope of the directive
The directive is designed to encourage Union citizens to exercise their right to move and reside freely within member states and cut back administrative formalities to the bare essentials says a spokesperson for the Ministry for Home Affairs.
The directive also limits member states’ scope for refusing entry or terminating the right of residence. Restrictions are only allowed on grounds of public policy, public security or public health.
According to the directive registered partners can only enjoy their right to free movement when the country to which they want to move treats registered partner as equivalent to marriage in its domestic legislation.
Unlike most European countries, Malta does not recognise the rights and duties of cohabiting couples. The Nationalist Party had promised to recognise these relationships in its 1998 manifesto but it failed to honour its commitment.
A ministry spokesperson said that when the spouse or partner of the EU national is another EU national, such persons already enjoy the right to enter and reside in Malta in their own right.
But no such right will be automatically granted when one such spouse or partner is a non-EU national. “Malta does not have such legislation and therefore no such partner may enter Malta as of right.”
Definition of Spouse
A major bone of contention is whether the definition of a spouse applies to married same-sex partners hailing from member states who recognise gay marriages.
The Maltese government insists that the implementation of this Directive will lead neither to the introduction nor to the recognition of relationships or partnerships that do not exist under Maltese law, even if such relationships or partnerships are registered in another EU Member state.
According to the International Gay and Lesbian Association (ILGA), the directive does not clearly resolve the issue of same-sex married couples.
On one hand, Article 2 (2) simply defines a family member as the “spouse”. On the other, the preamble of this directive clearly states that member states should implement this directive without discrimination between the beneficiaries of the directive on grounds of sexual orientation.
This is particularly relevant for same-sex couples who got married in the three member states which recognise same-sex marriages, namely the Netherlands, Belgium and Spain.
Nevertheless, earlier judgements from the European Court of Justice raise doubts whether the directive would apply to an EU citizen married to a same-sex partner from a non-EU country.
In a previous judgement, the court stated that according to the definition generally accepted by the member states, the term marriage means a union between two persons of the opposite sex.
But this decision was taken before Spain, Holland and Belgium started recognising same-sex marriages.
Ultimately, according to ILGA, the national courts and the European Court of Justice will play an important role in determining whether the same-sex married partners are included in the definition of spouse.
Malta Gay Rights Movement spokesperson Christian Attard told MaltaToday that with regards to the free of movement of married same-sex couples it is up to the European Court to decide and the Maltese government will have to comply.
“If the European Court determines that same-sex married couples are covered by the directive, we will see to it that the Maltese government complies even by bringing forward cases in court.”
Unmarried Couples
The Directive also states that members have a duty to “facilitate the entry” and residence of unmarried partners.
This part of the directive would apply in the case of an unmarried couple, one of which is an EU citizen, moving to countries which do not have any legal provision for cohabitation, like Malta.
The directive implies that states cannot have a total ban on the admission of unmarried partners. Since recital 3 of the preamble prohibits sexual orientation discrimination in the implementation of the directive, ILGA insists that states cannot have a policy of preferring to admit unmarried opposite partners whilst excluding unmarried same-sex partners.
According to the directive, member states have a duty to facilitate the entry of partners with a “durable and attested relationship”.
Partners will need to demonstrate that their relationship has existed for some time. A couple that has been living together for several years and has shared family responsibilities such as having had children would appear to satisfy this test.
The directive also obliges the member state receiving the couple’s obligation to “undertake an extensive examination” and to provide justification for any refusal.
Yet the Maltese government does not feel that it should enact a mechanism in Maltese law to allow unmarried persons to request admission. A ministry pointed out that this so called facilitation needs to be carried out in accordance with the national legislation of the host member state.
“Furthermore, if under Maltese law, the process of facilitation does not already exist, provisions providing for this process under EU legislation should not bind Maltese authorities,” the spokesperson said.
But the Malta Gay Rights Movement promises that it will scrutinise administrative practices when it comes for applications to facilitate admission of unmarried partners.
“Although the term facilitation is too vague, the text of the directive does not allow a blanket exclusion of any category. This depends on administrative practices. We will treat it on a case by case basis. We will be scrutinising administrative practices.”
jdebono@mediatoday.com.mt
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