The claimant opposes the defendant's findings that he has lost his right of free movement in the Federal Republic of Germany.

The claimant, a Nigerian national who was born in 1981, married a Bulgarian national living in Greece in April 2008. At the end of 2012, he settled in the federal territory with his wife and received a residence card of a family member of a Union citizen limited until January 2018. The spouses separated at the beginning of 2014. In March 2014, the wife moved to Bulgaria. Since August 2015, she has been living in the federal territory again - still separated from the claimant. In June 2016, the marriage was divorced in Nigeria; the divorce application is dated January 2016.

In a notice of 22 January 2015, the defendant's Foreigners Authority (Ausländerbehörde) established that the claimant had lost his right of free movement (no. 1) and had not obtained the right of permanent residence (no. 2). At the same time, it issued a deportation warning to the claimant (no. 3). The declaration of loss was reasoned by stating that the claimant no longer had the right of free movement since his wife had left Germany in March 2014. Action was taken against the declaration of loss and the deportation warning. The Berlin Administrative Court (Verwaltungsgericht) annulled the deportation warning and dismissed the action with regard to all other aspects.

The Berlin-Brandenburg Higher Administrative Court (Oberverwaltungsgericht) dismissed the claimant's appeal on points of fact and law directed against the dismissal of the action. (…)

8 The claimant's appeal on points of law is admissible and well-founded. In its examination of the lawfulness of the declaration of loss, the Court of Appeal answered in the negative the question as to whether the claimant had an independent right of residence following his divorce from his Bulgarian wife on grounds that do not conform with section 3 (5) no. 1 of the Act on the General Freedom of Movement for EU Citizens (FreizügG/EU, Gesetz über die allgemeine Freizügigkeit von Unionsbürgern) in conjunction with article 13 (2) (a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/630/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158 p. 77) - the Citizens' Rights Directive. The claimant's accessory right of residence as a third-country national spouse of a Union citizen entitled to freedom of movement expired with her departure. However, in violation of EU law, the Court of Appeal assumed that this right could not arise again following the wife's renewed settlement solely on the grounds of the lack of resumption of marital cohabitation. The appeal judgment on points of fact and law also does not prove to be correct for other reasons (section 144 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). For lack of sufficient facts established by the Court concerning the existence of a derived right of residence of the claimant at the time of divorce, the Senate cannot itself take a conclusive decision, and consequently the legal dispute is to be remitted to the Court of Appeal for further clarification (section 144 (3) no. 2 VwGO).

10 Should the requirements for this entitlement cease to be met within five years of the person concerned establishing permanent and lawful residence in the federal territory, or should they not be met, the loss of the right of entry and residence pursuant to section 2 (1) FreizügG/EU may be declared pursuant to section 5 (4) FreizügG/EU. After the expiry of this period, Union citizens and their family members obtain the right of permanent residence and the possibility of declaring the loss of the entitlement pursuant to section 5 (4) FreizügG/EU expires.

11 1. The claimant had not obtained the right of permanent residence as a family member of a Union citizen pursuant to section 4a FreizügG/EU at the material time of the last oral hearing before the Court of Appeal. As a Bulgarian national, his divorced wife is a Union citizen. However, as a family member, he did not reside lawfully and continuously in the federal territory together with her for five years (see section 4a (1) second sentence FreizügG/EU in conjunction with article 16 (2) of Directive 2004/38/EC).

12 2. The Court of Appeal rightly assumed that the claimant also cannot claim a right of residence under EU law deriving from marriage with a Union citizen. Such a right of residence expired at the latest upon divorce of the marriage.

13 Pursuant to section 2 (1) FreizügG/EU, Union citizens and their family members have the right to enter and reside in the federal territory pursuant to this Act. Pursuant to section 2 (2) no. 6 FreizügG/EU, family members are entitled to freedom of movement subject to the requirements of sections 3 and 4 FreizügG/EU. Pursuant to the legal definition contained in section 3 (2) no. 1 FreizügG/EU, the spouse of a Union citizen is a "family member" in accordance with article 2 no. 2 (a) of Directive 2004/38/EC. However, his status as spouse ends with the spouses' divorce (see Court of Justice of the European Union (CJEU), judgment of 8 November 2012 - C-40/11 [ECLI:EU:C:2012:691], Iida - para. 57 et seq.).

14 3. The claimant had (...) also not already obtained an independent right of residence under EU law upon his wife's departure in March 2014. Neither pursuant to Directive 2004/38/EC nor pursuant to the Freedom of Movement Act/EU does a third-country national spouse's derived right of residence become an independent right of residence upon the departure of the Union citizen. After the departure of the Union citizen, only his children and the parent who has actual custody of the children - subject to certain requirements - are (provisionally) excluded from the loss of the right of residence under EU law in the host Member State (see section 3 (4) FreizügG/EU in conjunction with article 12 (3) of Directive 2004/38/EC).

15 4. An independent right of residence under EU law pursuant to section 3 (5) no. 1 FreizügG/EU is possible, however. In transposition of the provisions of article 13 (2) (a) of Directive 2004/38/EC pursuant to section 3 (5) no. 1 FreizügG/EU, spouses who are not Union citizens shall retain their right of residence inter alia following divorce of their marriage if they meet the conditions applicable to Union citizens pursuant to section 2 (2) no. 1 to 3 or no. 5 FreizügG/EU and, prior to initiation of the divorce proceedings, the marriage has lasted for at least three years, including one year in the federal territory.

16 4.1 The claimant personally meets the requirements of section 2 (2) no. 1 FreizügG/EU (residence as an employee in paid employment). He entered Germany to work here, according to the documentation in the files was employed subsequently by various employers, and submitted at the oral hearing before the Court of Appeal a temporary employment contract with the Z. company as a warehouse employee valid until 1 May 2018.

17 4.2 Upon the initiation of the judicial divorce proceedings in January 2016, the claimant's marriage had lasted at least three years, including one year in the federal territory. The marriage took place in April 2008; in December 2012, the spouses moved to Germany. Their joint stay in the federal territory was interrupted only by the wife's temporary departure from March 2014 to August 2015. Within the framework of EU legislation, it cannot be inferred that such interruption of joint stay in the host Member State is detrimental to the claim.

18 4.3 However, an independent right of residence after divorce additionally depends on the existence of a derived right of residence at the time of the divorce - as already resulting from the wording of section 3 (5) no. 1 FreizügG/EU ("… retain [...] their right of residence…") and of article 13 (2) (a) of Directive 2004/38/EC ("… shall not entail loss of the right of residence"). The Court of Appeal substantiated its finding that this requirement had not been met on grounds incompatible with EU law. After separating from his wife until the divorce, the claimant (a) continued to be the spouse of an EU citizen, and (b) accompanied her after she took up residence in Germany again, - contrary to the view of the Court of Appeal - also within the meaning of section 3 (1) first sentence FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC. Thus, an independent right of residence after divorce depends solely on the question left open by the Court of Appeal as to whether the claimant's wife was entitled to freedom of movement in Germany at the time of the divorce.

19 a) The claimant was the "spouse" of an EU citizen until the divorce entered into final and binding effect. When categorising a spouse as a family member of a Union citizen pursuant to the case-law of the Court of Justice of the European Union, the marital relationship cannot be regarded as dissolved as long as it has not been terminated by a competent authority, and that is not the case where the spouses merely live separately, even if they intend to divorce at a later date (CJEU, judgment of 8 November 2012 - C-40/11 - para. 58 et seq.).

20 b) The claimant also met the requirements concerning the constituent element of "accompanying" at the time of the divorce. This is a term of EU law to be found (inter alia) in article 3 (1) of Directive 2004/38/EC, and having regard to the context and objectives of Directive 2004/38/EC, it cannot be interpreted restrictively, and must not in any event be deprived of its effectiveness (CJEU, judgment of 25 July 2008 - C-127/08 [ECLI:EU:C:2008:449], Metock et al. - para. 84).

21 aa) According to the CJEU case-law, the spouse of a Union citizen does not necessarily have to live permanently with the Union citizen in order to hold a derived right of residence (CJEU, judgment of 8 November 2012 - C-40/11 - para. 58 et seq.). The condition that the spouse must "accompany" or "join" the Union citizen is to be understood as referring not to an obligation for the spouses to live together, but an obligation for them both to remain in the Member State in which the spouse, who is a Union citizen, exercises his or her right of free movement. Thus, the spouse of a Union citizen who is a third-country national can claim the right of residence provided for by Directive 2004/38/EC only in the host Member State in which the Union citizen resides (CJEU, judgment of 16 July 2015 - C-218/14 [ECLI:EU:C:2015:476], Singh - para. 54 et seq. with further references). According to the legal definition of article 2 no. 3 of Directive 2004/38/EC, "host Member State" means the Member State to which a Union citizen moves in order to exercise the right of free movement and residence. In a decision on the right of permanent residence, conditional on family members having resided legally "with" the Union citizen in the host Member State for a continuous period of five years pursuant to article 16 (2) of Directive 2004/38/EC, the CJEU also ruled that a spouse cannot be deemed to have lost the status as spouse of a Union citizen accompanying or joining him or her in the host Member State upon termination of marital cohabitation (CJEU, judgment of 10 July 2014 - C-244/13 [ECLI:EU:C: 2014:2068], Ogieriakhi - para. 36 et seqq.). CJEU case-law further clarifies that the meaning of the term "accompany" does not depend on the order in which the Union citizen and the spouse took up residence in the host Member State. Rather, the term refers both to the family members of a Union citizen who entered the host Member State with the Union citizen and to those who reside with the Union citizen in that Member State, without it being necessary to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming family members (CJEU, judgment of 25 July 2008 - C-127/08 - para. 93). Where a Union citizen leaves the host Member State and settles in another Member State or in a third country, the derived right of the third-country national spouse to reside in the host Member State expires automatically, however (CJEU, judgment of 16 July 2015 - C-218/14 - para. 58). Where the departure of the Union citizen is followed by a divorce, however, the spouse of that Union citizen who is a third-country national can obtain an (independent) right of residence pursuant to article 13 (2) first subparagraph (a) of Directive 2004/38/EC if the Member State where the spouse resides is the Union citizen's host Member State within the meaning of article 2 no. 3 of Directive 2004/38/EC at the time of initiation of the judicial divorce proceedings subject to fulfilment of the other conditions (CJEU, judgment of 16 July 2015 - C-218/14 - para. 58 et seqq.).

22 bb) In application of these principles of interpretation and application of Directive 2004/38/EC developed by the CJEU, the claimant obtained a derived right of residence at the end of 2012 upon the joint entry of the spouses for the purpose of taking up employment. This right did not expire as a result of the spouses' later separation, but it did expire - as the Court of Appeal correctly established - upon the wife's departure in March 2014. Within the meaning of article 2 no. 3 of Directive 2004/38/EC, Germany ceased to be the host Member State for the claimant's wife as a Union citizen. At the time of the wife's departure, divorce proceedings had not yet been initiated, so that the claimant's right of residence could also not be retained at that time as an independent right of residence under section 3 (5) no. 1 FreizügG/EU in conjunction with article 13 (2) first subparagraph (a) of Directive 2004/38/EC. Neither in Directive 2004/38/EC nor in the case-law of the CJEU is there a basis for the opposite interpretation of the appeal on points of law. (…)

23 The Court of Appeal's interpretation that the claimant could not derive a renewed right of residence from the fact that his wife returned in August 2015 simply on account of the fact that there was no resumption of marital cohabitation - even assuming her entitlement to freedom of movement - is not in accordance with EU law, however. Pursuant to the case-law of the CJEU presented above, the derived residence right of a third-country spouse of a Union citizen entitled to freedom of movement does not depend on the continuance of marital cohabitation. Rather, after termination of marital cohabitation, simultaneous residence of the spouses in the host Member State is sufficient. The terms "accompany or join" - adopted into national law from EU law - are to be interpreted accordingly. The fact that the claimant had not left Germany and thus was already living here at the time of his wife's re-entry (…) does also not preclude the (renewed) derivation of an accessory right of residence.

24 The circumstance that it can be established pursuant to section 2 (7) second sentence FreizügG/EU that the entitlement of a family member pursuant to section 2 (1) FreizügG/EU (inter alia) does not exist if it has been established that the family member does not subsequently immigrate to the federal territory to join the EU citizen or does not accompany the EU citizen so that they can live together as a family does not alter that conclusion. This rule was added to the Freedom of Movement Act/EU by the Amending Act of 21 January 2013 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 86) with the purpose of implementing article 35 of Directive 2004/38/EC (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 17/10746 p. 9). However, article 35 of Directive 2004/38/EC authorises Member States to adopt measures (only) in case of an abuse of rights or fraud (such as entering into marriages of convenience). This gives Member States the opportunity to adopt the necessary measures to proceed against relationships contracted for the sole purpose of enjoying the right of free movement and residence (see recital 28 of Directive 2004/38/EC). By contrast, Member States are not entitled to add further constituent elements to the term "accompany or join" under EU law without having to pursue conclusively the question arising in the present case as to the extent to which section 2 (7) second sentence FreizügG/EU requires a (limiting) interpretation in compliance with EU law in this context. It also cannot be concluded from information of the European Commission in its guidance for transposition and application of Directive 2004/38/EC of 2 July 2009 (Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States of 2 July 2009, COM(2009) 313 final) that, unless the person concerned has engaged in conduct constituting legal abuse or fraud, the possibility exists to deny spouses of Union citizens a derived right of residence solely on the grounds that marital cohabitation no longer exists. In this connection, the fact that the couple had a common domicile/household for a long time is regarded only as an indicative criterion that legal abuse did not take place and it is explicitly pointed out that third-country family members are not required to live with the EU citizen to qualify for a right of residence (p. 16). The right of residence under EU law of the third-country national spouse of a Union citizen entitled to freedom of movement thus differs from national rules on subsequent immigration of family members pursuant to which residence permits for family reasons are granted (only) to enable the establishment and maintenance of a family partnership within the federal territory (section 27 (1) of the Residence Act (AufenthG, Aufenthaltsgesetz); see also Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), decision of 22 May 2013 - 1 B 25.12 - (…) concerning the measure of attachment required under this Act).

25 5. In its result, the appeal judgment also does not prove to be correct for other reasons (section 144 (4) VwGO). Insofar as the Senate has hitherto ruled that the requirement of accompanying or joining set out in section 3 (1) first sentence FreizügG/EU in transposition of article 3 (1) of Directive 2004/38/EC implies an actual relationship worthy of protection within the meaning of the protection of marriage and the family (BVerwG, judgment of 16 July 2015 - 1 C 22.14 - (…)), this certainly does not apply to a spouse's derived right of residence following termination of marital cohabitation pursuant to CJEU case-law.

26 If in such cases EU law links a right of residence only with the legal marital relationship and the simultaneous residence of both spouses in the host Member State, the person concerned cannot be denied the right to claim this right, unless he or she has engaged in conduct constituting legal abuse or fraud, including entering into marriages of convenience. These conditions have evidently not been met in this case. The Court of Appeal's findings as to the facts did not establish that the claimant, who had lived with his wife for a lengthy period before their separation, had engaged in conduct that constituted legal abuse or fraud. In particular, there is no evidence of the existence of a marriage of convenience. Unless the EU-law boundary (concerning abuse) has been overstepped, the Member States have no power to restrict the rights of residence deriving from Directive 2004/38/EC. This also applies in cases such as the present one where the Union citizen, following separation from the third-country national spouse and a temporary stay outside the host Member state, returns to that Member State.

27 6. However, the Senate also cannot take a conclusive decision in favour of the claimant concerning the existence of an independent right of residence pursuant to section 3 (5) no. 1 FreizügG/EU, since the Court of Appeal - in its view logically - did not make any findings as to whether the claimant's wife was entitled to freedom of movement upon the divorce of the marriage. All that is evident in the files is that she came to Germany in 2012 to take up employment and following a temporary departure now resides in the federal territory again. It has not been established whether she (still) fulfilled one of the requirements for freedom of movement under EU law pursuant to section 2 (2) FreizügG/EU upon her return, and whether this was still the case at the time of the divorce in June 2016. The legal dispute is therefore to be remitted to the Court of Appeal for further clarification (section 144 (3) no. 2 VwGO).

28 7. There are no reasons to bring the matter before the CJEU pursuant to article 267 of the consolidated version of the Treaty on the Functioning of the European Union in the version of 2008 (OJ C 115 p. 47) - TFEU. An obligation to refer the case is excluded, if only because, on the basis of the above arguments, the Senate cannot take a conclusive decision due to the lack of facts established by the Court of Appeal concerning the claimant's wife's entitlement to freedom of movement at the time of their divorce. There is also no question of doubt concerning the interpretation of EU law.

29 The CJEU has not yet had to decide on this case, in which a Union citizen left the host Member State only temporarily following separation. Directive 2004/38/EC (acte clair) clearly shows that (…) the Union citizen's departure does not in itself lead to the remaining third-country national spouse deriving an independent right of residence under EU law, and its wording is thus conclusive. In this constellation, however, (…) the fact that, despite their continued separation, the derived residence right of the spouse remaining in the host Member State can be newly derived upon the Union citizen's return and can be transformed into an independent residence right upon subsequent divorce derives from the principles concerning the law on freedom of movement of third-country national spouses developed by the CJEU and presented above (acte éclairé). This interpretation is consistent with the spirit and purpose of Directive 2004/38/EC. Its intention is to facilitate Union citizens' exercise of their right of free movement and residence (see recital 4 of Directive 2004/38/EC) and extends to family members so that Union citizens can exercise this right under objective conditions of freedom and dignity (see recital 5 of Directive 2004/38/EC). On this basis, the idea underlying the CJEU case-law is evidently that, on the basis of the possibility of their reconciliation alone, a sufficiently close family relationship (still) exists between spouses following termination of their marital cohabitation until divorce, and thus that even in this situation, the refusal to grant a right of residence to the third-country national spouse is (in abstract terms) a suitable way of preventing a Union citizen from making use of his or her entry and residence right.