Advocate General Medina Same-Sex Residence Opinion: Romania Not Compelled

• Advocate General Laila Medina advised the CJEU that a British woman's civil union, formalized in Italy with her Romanian partner, does not automatically grant her residence rights in Romania.
• Medina's nonbinding opinion states that entering a civil union is not equivalent to establishing family life through genuine residence in a host member state.
• The case involves FV, a British national, challenging an order to leave Romania after immigration officials denied her extension application.
• Legal experts suggest the opinion could clarify EU residence protections and the balance between EU free movement and national family law sovereignty.
• Commentary highlights the unequal options for same-sex versus opposite-sex couples in Romania regarding family reunification, potentially forming a basis for future equality arguments.

The Advocate General’s nonbinding opinion underscores a critical distinction: while entering a civil union holds personal significance, it does not automatically equate to having established a family life through genuine residence in a host member state.

A recent opinion from an EU legal expert suggests that a British woman’s civil union with her Romanian partner, formalized in Italy, does not automatically grant her residence rights in Romania. Advocate General Laila Medina delivered this nonbinding advice to the Court of Justice of the European Union (CJEU) concerning the case of FV, a British national, and her Romanian partner, GH. FV is currently challenging an order requiring her to leave Romania, where she resides with GH.

The couple entered into their civil union in Italy in June 2024. At the time, FV was living in Australia while GH was in Romania, caring for her severely disabled mother; neither woman had ever resided in Italy. FV subsequently joined GH in Romania in January 2025. In February 2025, FV applied to extend her stay, but immigration officials ordered her to return to Britain by April, citing the absence of shared children and FV's inability to demonstrate residence rights elsewhere in the EU as a family member of a Romanian citizen.

Advocate General Medina’s opinion posits that EU law does not compel Romania to grant residence to FV. She emphasized that “Although entering into a civil union is a legal act of undoubted personal significance, it is not equivalent to having lived as a family in the host member state.” Medina clarified that EU law is designed to protect family life established through genuine residence abroad, preventing EU citizens from hesitating to move if they cannot bring their families with them. However, she cautioned against extending these protections to relationships formalized during brief visits, arguing that such an interpretation would infringe upon national authority over family law and decisions reserved for EU lawmakers.

Furthermore, Medina found no conclusive evidence that GH was so dependent on FV that denying FV residence would necessitate GH's departure from Romania or the EU, though she noted that a national court would need to verify this assessment. Without a direct connection to EU law, the bloc’s Charter of Fundamental Rights was deemed inapplicable to the situation, although broader European human rights protections remained relevant. Medina also outlined that if the CJEU were to reject her primary conclusion, Romanian authorities would still be obliged to assess the couple's relationship individually, rather than dismissing it solely because their union is not recognized domestically, indicating that the requirements previously relied upon by officials were overly restrictive.

The Advocate General’s nonbinding opinion underscores a critical distinction: while entering a civil union holds personal significance, it does not automatically equate to having established a family life through genuine residence in a host member state. This perspective highlights the ongoing tension between EU free movement principles and the sovereignty of member states in defining family law. The opinion suggests a potential tightening of family reunification criteria under EU free movement law, particularly for unions not recognized domestically, requiring individual assessment by national authorities.

Lenka Křičková, an assistant professor of law at Masaryk University, noted that the CJEU now has an opportunity to clarify the extent of residence protections required beyond a mere border crossing. She specifically questioned whether traveling to another member state solely to enter a civil union would suffice for EU residence purposes. Křičková also suggested that endorsing Medina’s approach could alleviate concerns among those who fear that citizens might circumvent their own country's family laws by formalizing relationships abroad.

Despite the proposed outcome, Alina Tryfonidou, an assistant professor in EU law and family law at the University of Cyprus, identified potential for progress on LGBTI rights. She pointed out that Medina’s opinion clarifies that failing to qualify as a family member under EU residence rules does not conclude the inquiry. Tryfonidou explained that if EU law were to apply, authorities would still be required to assess the couple's relationship on an individual basis, even if their union lacks domestic recognition.

Tryfonidou also highlighted a significant disparity in Romania’s regulations: opposite-sex partners can marry to qualify for family reunification, a path unavailable to same-sex partners. She argued that this disadvantage is directly linked to sexual orientation. While this equality argument does not alter Medina’s current proposed outcome, Tryfonidou believes it could become a crucial factor in future cases falling under EU law, signaling ongoing legal challenges for same-sex couples seeking to assert their residence rights across the European Union.

Lawyers advising same-sex couples seeking EU residence rights must note the Advocate General's opinion that formalizing a union abroad does not automatically confer rights without genuine residence, requiring individual assessment by national authorities. This signals a potential tightening of family reunification criteria under EU free movement law, particularly for unions not recognized domestically.

Source: Original reporting via Courthouse News