Since the adoption of Directive 2004/38 / EC

The Court has held that EU law does not permit a Member State to refuse a third-country national who has been married to a Union citizen to have the right to reside in the territory of that Member State on the ground that his right does not provide for marriage between persons of the same sex

July 3, 2018

The Sofia Administrative Court recognized the marriage of a same-sex couple

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By decision of June 26, 2018, the Sofia-city Administrative Court ruled in favor of the right of residence of a spouse homosexual couple in Bulgaria, announced by Youth LGBT Organization Action.

 

Christina and Maryam, a couple from Australia and France, marry on June 1, 2016 in France. Later that year, Christina, an Australian citizen, was granted a residence permit in Sofia, Bulgaria, on the basis of Directive 2004/38 / EC on the right of free movement and residence in the European Union. According to the Directive, every citizen of the Union enjoys the freedom of movement for his family in the EU, even if his spouse is not a citizen of a Member State of the European Union, as is the case with Christina. However, in 2017, the Migration Directorate of the Ministry of Interior refused to reside in Bulgaria, based on the fact that same-sex marriages are not allowed under the Bulgarian Constitution.

 

The Court has held that EU law does not permit a Member State to refuse a third-country national who has been married to a Union citizen to have the right to reside in the territory of that Member State on the ground that his right does not provide for marriage between persons of the same sex. The decision also states that "the refusal of the Member State authorities to recognize - for the sole purpose of granting a derived right of residence to a third-country national - his marriage to a Union citizen of the same sex ... could prevent the exercise of the right of that Union citizen, as enshrined in Article 21 (1) TFEU, to move and reside freely within the territory of the Member States. "

 

"The decision of the Sofia-city Administrative Court is in line with a recent European Court ruling in a similar case in Romania, the Coman case, where it was ruled that EU countries must respect the right of residence for same-sex couples who have been legally married in another country who want to live together in their territory, "says Denitsa Lyubenova, defense lawyer for the French-Australian couple. The judgment of the European Court of Justice states that Member States "can not impede the freedom of residence of an EU citizen by refusing to grant his / her same-sex partner, a national of a non-EU country, the derived right of residence their territory ".

 

Despite the court ruling, same-sex couples still can not marry or adopt children together in Bulgaria, and homophobic and transphobic hate crimes are not included in the Penal Code.