Ahmed (Amos; Zambrano; R 15A(3)(C) 2006 EEA Regs) [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Storey UTJ,Lang J,Mrs Justice Lang |
| Judgment Date | 22 February 2013 |
| Neutral Citation | [2013] UKUT 89 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 February 2013 |
[2013] UKUT 89 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mrs Justice Lang
Upper Tribunal Judge Storey
For the Appellant: Ms B Asanovich, instructed by Slough Immigration Aid Unit
For the Respondent: Mr P Deller, Home Office Presenting Officer
Interested party: Mr A Weiss, AIRE Centre
Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regs)
1. The spouse of an EEA national/Union citizen does not acquire a retained right of residence upon divorce unless the EEA national was in the United Kingdom and exercising Treaty rights at the date of the lawful termination of the marriage: Amos [2011] EWCA Civ 552 followed.
2. The principles established by the Court of Justice in Zambrano Case C-34-/09 [2011] ECR 1-0000 and subsequent cases dealing with Article 20 of the Treaty on the Functioning of the European Union (TFEU) have potential application even where the EEA national/Union citizen child of a third-country national is not a national of the host Member State: the test in all cases is whether the adverse decision would require the child to leave the territory of the Union.
3. Notwithstanding inability to satisfy new regulation 15A(3)(c) of the Immigration (European Economic Area) Regulations 2006 as amended with effect from 16 July 2012, the parent of a child of an EEA national who has been employed in the UK when the child was also residing here can have a derived right of residence under Article 12 of Regulation 1612/68 (now Article 10 of Regulation No 492/2011) even though the EEA national parent is no longer a worker in the UK at the time the child commences education: see Case C-480/08 Teixiera [2010] EUECJ, 23 February 2010.
This case, which concerns a third-country national woman seeking rights of residence following her divorce from an EEA national by whom she had two children both also EEA nationals, raises a number of questions: (1) Did she retain an EEA right of residence given that at the date of her divorce her husband was not in the UK?; (2) Does she have a Zambrano-style derived right of residence based on the position of her EEA national children notwithstanding that they are not nationals of the host Member State (the UK)?; (3) Does she have a derived right of residence either under new regulation 15A of the Immigration (European Economic Areas) Regulations 2006 (the 2006 Regulations) or under Article 12, Regulation 1612/68 based on her eldest child having commenced full-time education?; and (4) Does the fact that her children are EEA nationals mean that the decision refusing to grant her a residence card violates her right to respect for family life under Article 8 ECHR? On each of these issues the law has been fast-changing and interactive and so it is necessary to go into greater detail than is normally appropriate. We express our gratitude to the representatives — Ms Asanovich, Mr Weiss and Mr Deller — for their largely helpful submissions, both written and oral.
The appellant is a citizen of Pakistan. In September 2003 she married Khurshid Ahmed in Karachi. He travelled to Germany and obtained German nationality. In March 2004 the couple moved to the UK and on 7 November 2005 she was issued with a residence card valid until 21 September 2009. Their relationship ran into difficulties and some time in 2006 he left the matrimonial home. He purported to divorce her by a talaq issued in Karachi on 13 March 2007. Later, in 4 April 2009, he obtained a decree absolute in the UK. She was granted custody of her two children, A, born on 14 November 2005, and I, born on 3 July 2007. Both children are German nationals. On 18 September 2009 the appellant applied for permanent residence on the basis that upon her divorce she had retained a right of residence under regulation 10(5) of the 2006 Regulations. She produced evidence to show that she had worked as a self-employed carer between 2007 and June 2011.
On 11 March 2010 the respondent refused to grant her permanent residence. The reason given was that the evidence she had provided failed to show that her former husband was exercising Treaty rights in the UK at the time of the divorce. The grounds of appeal submitted that to have refused the appellant on the basis that her husband was not exercising Treaty rights at the time her divorce became final was to rely on a misinterpretation of Article 13(2) of Directive 2004/38/EC: it was sufficient, it was submitted, for the Union citizen/EEA national husband to have been present in the UK and exercising Treaty rights at the time the marriage broke down as long as a divorce followed. It was also submitted that the appellant met three out of the four conditions set out in Article 13(2)/regulation 10(5). Foremost was that she had been the victim of domestic violence (Article 13(2)(c)), regulation 10(5)(iv)), but it was also the case that her marriage had lasted at least three years prior to divorce proceedings during which she and her spouse had resided in the UK for at least one year (Article 13(2)(a), regulation 10(5)(i)) and that she has custody of children of her Union citizen /EEA national husband (Article 13(2)(b), regulation 10(5)(ii)). The decision was also said to be contrary to the appellant's Article 8 rights.
The legal provisions to which reference is made above and below are set out in an Annex to our determination. As regards provisions set out there in the 2006 Regulations, it is to be noted that these were amended with effect from 16 July 2012 by the Immigration (European Economic Area) Amendment Regulations SI No. 1547. By virtue of the fact that we go on to set aside the decision of the First-tier Tribunal and re-make it ourselves, we are obliged to decide the appeal ex nunc under the amended Regulations: see Schedule 1.
Given, however, the central focus in submissions of Article 13 of the Directive it will assist to set out its text here also:
“Article 13 Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership
1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or
(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis.”
In a determination sent on 22 July 2010, First-tier Tribunal (FtT) Judge M A Khan dismissed the appeal. He concluded that the relevant date for deciding whether there was a retained right of residence was the date of divorce and (whether that date was taken as March 2007 or August 2009) the evidence failed to establish that at that time the appellant's husband was in the country. The judge also rejected the appellant's Article 8 grounds of appeal.
The appellant sought permission to appeal against the FtT decision, principally on three grounds: (i) that the judge's interpretation of regulation 10(5)(b) (that she had to show her ex-husband “was residing in the United Kingdom in accordance with these Regulations at the date of the termination [of the marriage or civil partnership]”) was incompatible with Article 13 of the Directive; (ii) that the judge had failed to address the issue of Article 12 of the Directive; and (iii) that the judge had also failed to deal with Article 8 of the ECHR although this was raised at the hearing. Although permission was originally granted on grounds (ii) and (iii) only, on 19 August 2010 UTJ Allen...
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