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NA -v- SSHD (2014) EWCA Civ 995; 17 July 2014

In what will come as a welcome relief to applicants and immigration advisers alike, the Court of Appeal has referred the following question to the ECJ:

"Must a third country national ex-spouse of a Union citizen be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC?"

NA is a Pakistani national. Subsequent to her marriage to her German national husband KA, the couple moved to the UK. The couple had two children who have at all times been German citizens. The marriage was beset by episodes of domestic violence. 

Approximately two and a half years after they moved to the UK the couple separated. Two months later KA left the UK. Soon after he purported to divorce NA by 'talak'. Notwithstanding, NA instituted divorce proceedings in the UK and was granted a decree absolute. It was common ground that whatever date one took as the date of the termination of the marriage NA could not show that KA was a "qualified person" as required by Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (as amended), which purports to transpose article 13(2) of the 'Citizens Directive'. This was because KA was not living in the UK by the date of either divorce although it was accepted by the Secretary of State that KA had been either a worker or self employed by the time of his departure.

NA sought confirmation of her retained right of residence on a number of grounds as well as arguing that she should be allowed to remain in the UK by virtue of the UK's obligations under article 8 of the ECHR. The Secretary of State did not accept that NA had a right of residence nor that her removal would be contrary to article 8. NA's appeal eventually went before the Upper Tribunal.

Having decided that the Appellant did not have a retained right of residence under Article 13(2), the Upper Tribunal decided that the Appellant did have a right of residence under both Article 20 of the Treaty applying Zambrano (Case C-34/09) [2012] QB 265 principles and Article 12 of Regulation 1612/68. It also allowed her appeal under article 8. The Secretary of State sought permission to appeal the decision of the Upper Tribunal but did not challenge the decision under article 8. The appeal against the Upper Tribunal's determination that the Appellant had a right of residence on Article 20 and Article 12 grounds has been adjourned.

The Secretary of State's case is relatively straightforward. She argues that the language of the Regulation is clear, that is that regulation 10(5) required the divorced third country national to satisfy the condition that their former EEA national spouse was residing in the UK in accordance with the Regulations at the date of the divorce.

She accepts that the language of regulation 10(2) differs to article 13(2) which does not refer to the EEA national having to be a "qualified person" at the date of the termination of the marriage but argues that one cannot retain a right of residence under article 13(2) if it did not subsist immediately prior to the marriage.

NA argues that the Regulations do not correctly transpose the relevant provisions of the Directive and appeals for a purposive construction of the Directive and the Regulations. 

The underlying purpose of the Article is explained in Recital (15) to the Directive, as follows:

"(15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis."

The Court of Appeal found that the case law is inconsistent on the point and that the issue is not "acte clear", that is, not clear from the language of the Directive.

COMMENT

This case highlights the significant difficulties faced by the former partner of an EEA national on the breakdown of a relationship. Many advisers will have encountered clients whose relationship with their EEA partner has ended. In many cases the EEA national will not be cooperative with providing the necessary documentary evidence to enable the other party to establish his or her claim to a retained right of residence. In some cases the EEA national will have left the UK thus defeating the former partner's right altogether as in NA.

It is hoped that the Appellant's appeal to a purposive approach will succeed before the ECJ. Even so, this leaves open the vexed question of how the third country national can establish her claim that her partner has been exercising Treaty rights i.e. as a worker  in the face of non cooperation of the former EEA spouse. Although the Secretary of State has the power to obtain information from other government agencies, in particular, HMRC she often refuses to exercise that power.

Clients who find themselves in a similar situation or who are unable to demonstrate their retained right of residence through lack of documentation should continue to seek specialist legal advice.

 

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