Homophobia and Discrimination on Grounds of Sexual Orientation ...

European Union Agency for Fundamental Rights2.4. A de facto same-sex cohabitant of the citizen of theUnion seeks to join him or her in another EU MemberStateIn the third situation – where the same-sex partners are neither married nor united undera registered partnership, but live together –, the host State again must ‘facilitate entry<strong>and</strong> residence’ of the partner, provided either the partners share the same household(Art. 3(2), a)), or there exists between them a ‘durable relationship, duly attested’ (Art.3(2), b)). These are two separate grounds for admission, <strong>and</strong> a situation such as that ofEstonia, which only takes into account de facto relationships to the extent that themembers of the family share the same household, without providing the possibility toprovide evidence of other elements demonstrating the existence of a ‘durablerelationship’, may therefore be incompatible with this provision of the directive. Inaddition, it is axiomatic that the nature of the evidence to be provided by the individualsconcerned should be the same, <strong>and</strong> should be weighed according to the same criteria,whether the partners are opposite-sex or same-sex: any differential treatment betweenthe two situations would constitute a form of direct discrimination on grounds of sexualorientation.The problem however is that, in the vast majority of the Member States, no clearguidelines are available concerning the means by which the existence either of acommon household or of a ‘durable relationship’ may be proven. While this may beexplained by the need not to artificially restrict such means – i.e., by the need to allow forsuch proof to be provided by all available means –, the risk is that the criteria relied uponby the administration may be arbitrarily applied, <strong>and</strong> lead to discrimination against samesexpartners, which have been cohabiting together or are engaged in a durablerelationship. Furthermore, the vague wording of Article 3(2) of the Directive may be thesource of legal uncertainty for the national administrations themselves. It seems clearthat the absence of any reference in the domestic legislation implementing the directiveto the possibility for partners which have been cohabiting together or are engaged in adurable relationship to have their case examined is a violation of the requirements of thedirective (EE, PL), <strong>and</strong> that denying to same-sex partners the rights which, in the similarcircumstances, would be recognised to opposite-sex partners, would equally result insuch a violation – since this would create a direct discrimination on grounds of sexualorientation (IT) –. But it is less clear, for instance, whether the imposition of a one-yearcohabitation requirement is acceptable under the directive (HU) – although it could besaid that a condition such as this one does not take into account the fact that sharing acommon household <strong>and</strong> having a durable relationship are two separate grounds whichthe Member States should consider for the purpose of facilitating entry <strong>and</strong> residence ofthe partner. In some Member States (LU <strong>and</strong> PT), the implementation of Article 3(2) ofthe Directive leads the national authorities to require the production of a certificate from70