Godwin Oche Amos v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Maurice Kay,The Master of the Rolls |
| Judgment Date | 12 May 2011 |
| Neutral Citation | [2011] EWCA Civ 552 |
| Docket Number | Case No: C5/2010/1816 & C5/2010/1188 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 2011 |
[2011] EWCA Civ 552
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Maurice Kay
and
Lord Justice Stanley Burnton
Case No: C5/2010/1816 & C5/2010/1188
Manjit Singh Gill QC and Navtej Singh Ahluwalia (instructed by Ikie Solicitors LLP) for the Appellant Godwin Oche Amos
Manjit Singh Gill QC and Navtej Singh Ahluwalia (instructed by DCK Solicitors) for the Appellant Emilia Amanda Theophhilus
Tim Eicke QC (instructed by Treasury Solicitors) for the Respondent
Hearing date: 31 March 2011
Introduction
On 31 March 2011, we heard:
(1) The appeal of Godwin Amos against the determination dated 23 April 2010 of Designated Immigration Judge Woodcraft, sitting as a judge of the Upper Tribunal (Immigration and Asylum Chamber) ("the Tribunal"), dismissing his appeal against a decision rejecting his application for permanent residence under the provisions of the Immigration (European Economic Area) Regulations 2006 ("the Regulations").
(2) The application for permission to appeal of Emilia Theophilus against the determination of Senior Immigration Judge Moulden, sitting as a judge of the Tribunal, dismissing her appeal against a similar decision of the Secretary of State for the Home Department. Ms Theophilus' application was listed on the basis that her appeal would be heard immediately if permission was granted.
(3) The application of the Secretary of State to file and to serve Respondent's Notices out of time in Mr Amos's appeal and, if permission to appeal was granted, in that of Ms Theophilus.
The Court decided to grant permission to appeal to Ms Theophilus, and the hearing was duly treated as the hearing of her appeal.
For the appellants, Mr Gill QC did not suggest that the late service of the Secretary of State's notices had caused the appellants any prejudice. Since the contention advanced in those notices was entirely one of law, which did not involve any new evidence to be adduced to the Court of Appeal, I would grant the Secretary of State's applications.
The facts
(a) Mr Amos
Mr Amos is a citizen of Nigeria. In January 2003 he married Marie-Hélène Gomis, a French citizen, in the UK. He and his wife were granted residence documents for 5 years until 14 March 2008. On 1 March 2008 he commenced divorce proceedings. On 13 March 2008, he applied to the Secretary of State for recognition of his right to permanent residence. On 18 August 2008 the decree absolute was granted dissolving his marriage. On 11 June 2009 the Secretary of State rejected his application.
Designated Immigration Judge Woodcraft rejected Mr Amos's case on the ground that, as had been earlier decided by the Tribunal in the case of OA [2010] UKAIT 00003, a family member of an EEA national must show that for the period of 5 years (apart from any periods of absence specified in regulation 3) preceding the claim for the right of permanent residence the EEA national on whom his claim depends resided in the UK exercising treaty rights. There was no evidence that Mrs Gomis had worked and Mr Amos was therefore not entitled to the right of permanent residence.
(b) Ms Theophilus
Ms Theophilus is also a citizen of Nigeria. She entered the UK in February 2002 and on 12 June 2003 she married Edouard Batman, a French citizen. She was granted a right of residence in the UK as the family member of an EEA national resident in this country and exercising treaty rights for the period from 27 August 2003 to 21 August 2008. Her marriage broke down, and the couple separated when Mr Batman moved out of the matrimonial home in late 2007. She started divorce proceedings in July 2008 and was granted a decree absolute on 8 December 2008. She has worked throughout her time in the UK.
Both parties were legally represented before Senior Immigration Judge Moulden. Her appeal was argued by reference to regulation 10 of the Regulations. Her evidence was that when she met her husband he worked as a chef. She did not know whether he had continued to work after their separation, and in particular she did not know whether he was working at the date of their divorce, or even whether he was still living in the UK at that date.
Senior Immigration Judge Moulden dismissed Ms Theophilus' appeal on the ground that she did not satisfy the requirements of regulation 10(5)(b), because she had not shown that her husband was exercising treaty rights (i.e., working) at the date of her divorce.
The applicable legislation
Before us, the appeals were argued by reference to the terms of the Citizenship Directive ( Directive 2004/38/EC "on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States") ("the Directive"), which is transposed into our domestic law by the Regulations, on the basis that the Regulations must be interpreted and applied consistently with the Directive unless that is impossible, in which case it would be necessary to disapply the offending provisions of the Regulations. It is not however suggested that the Regulations do not correctly transpose the Directive. The relevant provisions of the Directive are set out in the annex to my judgment.
The principal provisions of the Regulations relevant to the Tribunal decisions are the definition of "qualified person" in regulation 6 and regulations 10 and 13 to 15. Regulation 6 defines a "qualified person" as a person who is an EEA national and in the United Kingdom as a jobseeker, a worker, a self-employed person, a self-sufficient person or a student. Regulation 10, so far as relevant to divorced spouses of EEA nationals, is as follows:
10. (1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), ( 4) or (5).
….
(5) A person satisfies the conditions in this paragraph if—
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
Regulations 13 to 15 are as follows:
13 Initial right of residence
(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
(3) But—
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation.
14 Extended right of residence
(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.
(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence.
(4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.
(5) But this regulation is subject to regulation 19(3)(b).
15 Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five...
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