In a historical judgment delivered on the 29th of June 2019, the Sofia City Administrative Court granted a same-sex couple residency rights in Bulgaria. Cristina and Mariama, a couple from Australia and France, got married on the 1st of June 2016 in France. Later that same year, Cristina, an Australian citizen, was granted the right to live in Sofia, Bulgaria via 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. Based on the Directive, every EU citizen, and their family, has freedom of movement within the EU, even if their spouse is not an EU citizen, which is the case with Cristina. Despite that, in 2017 the Migration Directorate of the Ministry of the Interior refused her the right to reside in Bulgaria, based on the fact that same-sex marriages are unconstitutional in Bulgaria.
‘I am happily celebrating not only my right to live in Bulgaria, but also every same-sex couple’s right to freedom of movement within the EU,’ said Cristina, after finding out the court’s ruling.
The court held that, based on EU law, a Member State is not allowed to refuse residency to a third-country national who is married to an EU citizen with the consideration that the law of that State does not provide for same-sex marriages. The judgement also states that ‘the refusal of authorities within а Member State to recognize – solely for the purpose of granting a third-country national their derived right of residence – a marriage between a third-country national and an EU citizen of the same sex (…) could prevent the EU citizen to exercise their right to move freely and reside in a Member State, as enshrined in article 21(1) TFEU.’
‘The ruling of the Sofia City Administrative Court is in accordance with a recent judgement made by the Court of Justice of the European Union regarding a similar case in Romania, the Coman case, in which it was ruled that Member States of the EU must comply with the right of residence of a same-sex couple who have been legally married in another country and want to reside together within their territory’, says Denitsa Lyubenova, the French-Australian couple’s defense attorney. The ruling of the CJEU states that Member States ‘cannot oppose an EU citizen’s right to reside by refusing to grant their same-sex partner, a citizen of a country outside the EU, their derived right of residence within their territory’.
In Bulgaria, same-sex couples are still unable to get married or adopt children together, hate crimes of homophobic or transphobic nature have not been added to the Criminal Code. Despite that, Veneta Limberova, chairwoman of the Youth LGBT Organization Deystvie, is hopeful – ‘This is great news for the LGBT movement, which is fighting for legal recognition in Bulgaria. This ruling is exceptionally important to us as a community because it gives hope to all same-sex couples, regardless of their citizenship, that their families will be accepted in Bulgaria.’ Precisely for that reason, Deystvie supports strategic litigation for the LGBT movement, for example – Lilly and Dari, a couple of women seeking recognition of their marriage, which took place in the UK. ‘We believe in equality for everyone’.