Baigazieva v Secretary of Stae for the Home Department
| Jurisdiction | England & Wales |
| Judge | Singh LJ |
| Judgment Date | 20 April 2018 |
| Neutral Citation | [2018] EWCA Civ 1088 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 April 2018 |
[2018] EWCA Civ 1088
COURT OF APPEAL
Singh LJ
There was no representation at the handing down of this judgment.
Ahmed v Secretary of State for the Home Department [2017] EWCA Civ 99; [2017] 1 WLR 3977; [2017] 2 CMLR 27; [2017] Imm AR 1191
Diatta v Land Berlin (Case C-267/83); [1985] ECR 567; [1986] 2 CMLR 164
Lahyani v Minister for Justice and Equality [2013] IEHC 176; [2013] 3 CMLR 23
NA (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 995; [2015] 1 CMLR 9
Secretary of State for the Home Department v NA (Case C-115/15); [2017] QB 109; [2016] 3 WLR 1439; [2017] 1 CMLR 12; [2017] Imm AR 34; [2017] INLR 642
Singh and Others v Ministry for Justice and Equality (Case C-218/14); [2016] QB 208; [2015] 3 WLR 1311; [2016] 1 CMLR 12; [2015] Imm AR 1304; [2016] INLR 264
Directive 2004/38/EC (“the Citizens Directive”), Articles 7(1), 8 & 13
Immigration (European Economic Area) Regulations 2006, regulations 6 & 10
Immigration (European Economic Area) Regulations 2016, regulation 10
European Union law — Citizens Directive — Article 13(2) of Directive 2004/38/EC — retained rights of residence — divorce — regulation 10(5) of the Immigration (EEA) Regulations 2006 — distinction between the point at which right of residence was retained and the criteria to be met
The Claimant, a citizen of Kyrgyzstan, applied for a residence permit in the United Kingdom on the ground that she had a retained right of residence as the former spouse of an EEA citizen within the meaning of regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Regulation 10(5), which transposed Article 13(2) of Directive 2004/38/EC (“the Citizens Directive”), provided for a retained right of residence when a person fulfilled the criteria at subparagraphs (a)-(d). The condition at subparagraph (a) was that the person ceased to be a family member of a qualified person on the termination of marriage to the qualified person. The condition at subparagraph (d)(i) was that, prior to the initiation of the proceedings for the termination of the marriage, the marriage had lasted for three years and the parties to the marriage had resided in the United Kingdom for at least one year during its duration. A ‘qualified person’ was defined as an EEA national in the United Kingdom as a jobseeker, worker, self-employed person, self-sufficient person or student.
The Secretary of State for the Home Department refused the Claimant's application. The case progressed to the Upper Tribunal (“UT”), which held that the Claimant did not have a retained right of residence. The UT made its decision on the assumption that, to retain a right to reside in the United Kingdom in reliance on regulation 10(5), the third-country national needed to show that her former EEA spouse exercised treaty rights as a ‘qualified person’ until the date of divorce. In contrast, the Claimant submitted that it was sufficient to provide evidence that her spouse was a qualified person up until the date of commencement of divorce proceedings. In rejecting the Claimant's argument, the UT Judge first relied on the reference in regulation 10(5)(a) to the status of a family member of a qualified person ceasing ‘on the termination of the marriage’. Secondly, she stated that there must logically come a point when a ‘derived’ right of residence became ‘retained’ and that it was difficult to understand why the Claimant would need the legal safeguard of Article 13(2) of the Citizens Directive if she still enjoyed the benefit of being a ‘family member’ within Article 7 of the Citizens Directive. Thirdly, the UT considered that the initiation of divorce proceedings did not provide a sufficiently clear basis on which to confer a permanent right of residence.
The Claimant appealed against the UT's decision. The Secretary of State issued a position statement informing the Court that, having reviewed the law in the light of the instant appeal, he now accepted that, to retain a right of residence under regulation 10(5) of the 2006 Regulations, it was sufficient for the third-country national to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced. Although the outcome of the appeal was the subject of a consent order, it was agreed that it was in the public interest for the Court to give a substantive judgment on the issue of law under consideration. The question of the correct interpretation of regulation 10(5) of the 2006 Regulations which arose in the instant case also applied in the same way to regulation 10 of the Immigration (European Economic Area) Regulations 2016, which replaced the previous version with effect from February 2017.
Held, allowing the appeal by consent:
(1) In Secretary of State for the Home Department v NA (Case C-115/15) the Court of Justice of the European Union (“CJEU”) considered the interpretation of Article 13(2) of the Citizens Directive in the context of a case involving domestic violence. It held that the qualified EU spouse must reside in the host Member State ‘until the date of the commencement of divorce proceedings’ if the third-country national victim of abuse was to be entitled to rely on Article 13(2)(c). The CJEU did not suggest that it was necessary for the EU spouse to reside in the host member State until the divorce itself was granted. There was no principled basis for concluding that the CJEU's reasoning in NA should not also apply to those seeking to rely on Article 13(2)(a) of the Citizens Directive. In NA, the CJEU distinguished between first, the point at which the right to reside was retained pursuant to Article 13(2), namely the event of divorce, and secondly the criteria that must be met for the retention of the right, namely the criteria set out in subparagraphs (a)–(d) of Article 13(2). For the right of residence to be retained at the point of divorce, it was necessary to show that the EEA spouse was a qualified person when divorce proceedings were commenced. The commencement of divorce proceedings as the point at which to demonstrate ‘qualified person status’ was consistent with Article 13(2)(a) of the Citizens Directive, which referred to marriage lasting for at least three years ‘prior to initiation of the divorce proceedings’ (paras 8 – 9 and 11 – 12).
(2) The answer to all the points made by the UT Judge was to be found in the distinction drawn between first, the point at which the right of residence was retained, and secondly, the criteria to be met for that to happen. The...
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