Retained right of residence - end of marriage or start of divorce?
In Baigazieva v Secretary of State for the Home Department  EWCA Civ 1088, the Court of Appeal, with the help of the Secretary of State, clarified the interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (and, by extension, the 2016 Regulations) regarding retained right of residence. This was by reference to Directive 2004/38/EC and the CJEU preliminary ruling in Case C-115/15 Secretary of State v NA.
This unusual judgment was given following an appeal against a decision of the Upper Tribunal, where it was found that the Appellant did not have a retained right of residence in the United Kingdom as the former spouse of an EEA national. The Secretary of State indicated she – the judgment is dated 20 April 2018, prior to Amber Rudd’s resignation – did not wish to contest the appeal and the parties agreed a consent order. The Court directed the Secretary of State to file a position statement explaining the reasons for conceding the appeal and in that statement the Secretary of State explained it would be in the public interest for the Court to give substantive judgment on the issue of law arising in the appeal. The Appellant agreed that the case should be dealt with by a substantive judgment.
Legal Issue – Retained Right of Residence
The issue of law arising in the appeal was whether, in order for a third country national ex-spouse of an EEA national to have a retained right of residence under EU law, it was necessary for the EU spouse to reside in the host Member State until the divorce itself was granted (when the decree absolute was issued under UK family law).
In its preliminary ruling in NA, which concerned the retention of the right of residence of a third country national who had been the victim of domestic violence during her marriage to an EEA national, the CJEU held that the EEA national must reside in the host Member State until the commencement of divorce proceedings.
The Secretary of State, in her position statement and in line with NA, submitted that there was a difference between:
- the point in time in which the right to reside is retained; and
- the criteria to be met for the retention of the right.
“For the right to be retained at the point of divorce, when the decree absolute was granted, the CJEU held that it was necessary to show that the EEA spouse was a qualified person when divorce proceedings were commenced.” 
It was submitted by the Secretary of State that this was consistent with Article 13(2)(a) of the Directive, governing the retention of the right to reside in the event of divorce (that isn’t warranted by particularly difficult circumstances), as it ‘refers to the marriage lasting for at least three years “prior to initiation of the divorce”.’
The Secretary of State further submitted that Upper Tribunal Judge Bruce erred in considering that “the initiation of divorce proceedings is not a sufficiently clear juncture at which to allow the right of residence to be retained”.
Finally, the Secretary of State submitted that Regulation 10(5) is a faithful transposition of Article 13(2)(a) of the Directive and it captured more clearly the distinction between the time of retention at the point of divorce (Regulation 10(5)(a)) and the criteria to be met for the retention of the right of residence (Regulation 10(5)(c)), in line with CJEU and domestic jurisprudence.
It was considered this was acte clair following the CJEU’s ruling in NA.
Singh LJ agreed with the Secretary of State’s submissions, including that it was not necessary to make a further reference to the CJEU for a preliminary ruling.
Regulation 10(5)(b) – not so faithful a transposition
It is interesting how Regulation 10(5)(b) has not been mentioned by the Secretary of State. This provision, which is identical in both the 2006 and 2016 Regulations states that the [third country national ex-spouse of an EEA national] has retained the right of residence if “he was residing in the United Kingdom in accordance with these Regulations at the date of the termination”.
It is logical that the third country national ought to have been residing in the United Kingdom (or any host Member State) in order to retain the right of residence at the date of divorce, which, before the divorce, (s)he derived by virtue of being a family member of the EEA national.
What about “in accordance with these Regulations”, however? If an EEA national who has not acquired the right of permanent residence leaves the UK after the initiation of divorce proceedings but before the termination of the marriage, then, in his absence, his (at that point still current) spouse would not be have been deriving a right of residence in the UK in accordance with the EEA Regulations at the date of termination.
This is because, in accordance with Regulation 14(2), “a family member of a qualified person residing in the United Kingdom under paragraph (1) […] is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.” If the qualified person (the EEA national) does not reside in the United Kingdom at the time of the divorce, then his family member is not entitled to reside in it either. The very definition of qualified person in Regulation 6 is: “a person who is an EEA national and in the United Kingdom.” A spouse of an EEA national who had left the United Kingdom after the initiation of the divorce proceedings would therefore not be the family member of a qualified person and, thus, would not have been entitled to reside in the UK under Regulation 14(2) at the date of termination.
This is also confirmed by the current version (3.0) of the Secretary of State’s policy, titled “Free movement rights: retained rights of residence”, published on 7 February 2017:
Marriage or civil partnership: non-official separation
If a non-EEA national separates from their EEA national spouse or civil partner they remain a family member with the right to live in the UK for as long as they are married to, or in a civil partnership with, an EEA national sponsor. The EEA national must continue to exercise free movement rights in the UK, or have a right of permanent residence.
A non-EEA national spouse or civil partner whose relationship has not officially ended will lose their right of residence if the EEA national:
- stops being a qualified person (either through no longer being a qualified person in the UK or by leaving the UK)
- loses their right of permanent residence
The wording of Regulation 10(5)(b), therefore:
- insofar as it appears to require the third country national to have been residing in the UK in accordance with the EEA Regulations at the time of the divorce; and
- insofar as, on some occasions, (s)he would only have been entitled to reside in the UK in accordance with those Regulations by virtue of the EEA national spouse being a qualified person residing in the UK at the time of divorce,
appears to be inconsistent with the ruling in NA.
I am, therefore, doubtful as to whether Regulation 10(5) in its entirety, i.e. including 10(5)(b), is a faithful transposition of Article 13(2) of the Directive, in line with the ruling in NA. If I’m right, this potentially explains why this issue has, in the terms of the Secretary of State, “arisen in several proceedings in recent years without being definitively resolved”.
The Secretary of State’s policy – inconsistent with the position in Baigazieva
In fact, the Secretary of State’s very own policy mentioned previously, on page 12 of its current version (3.0) published on 7 February 2018, states that a requirement for the retention of a right of residence is that the EEA national was a qualified person, or had permanent residence, on the date of the termination of the marriage or civil partnership. I have also seen several decisions on applications for a residence card on the basis of a retained right of residence, where the Secretary of State refused for lack of evidence that the EEA national was a qualified person in the UK at the time of the divorce.
Perhaps the Secretary of State ought to have amended the Regulations and/or his policy to “definitively resolve this issue”, prior to seeking to achieve this through a substantive judgment in the Court of Appeal, if that was always his interpretation of NA.
The correct approach
In any event, the position of the law (and any incompatible domestic law has to be disapplied) is now clear: the right to reside is only retained on the termination of the marriage, but the criteria for retention are to be considered at the time of the initiation of divorce proceedings; no later.
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