NA (Pakistan) v The Secretary of State for the Home Department The Aire Centre (Intervenors)
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Sullivan,Lady Justice Sharp |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] EWCA Civ 995 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/1977 |
| Date | 17 July 2014 |
[2014] EWCA Civ 995
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
MRS JUSTICE LANG AND
UPPER TRIBUNAL JUDGE STOREY
IA/17654/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Sullivan
and
Lady Justice Sharp
Case No: C5/2013/1977
and
Thomas de la Mare QC and Bojana Asanovic (instructed by Wilson Solicitors LLP) for the Appellant
Brian Kennelly (instructed by Treasury Solicitors) for the Respondent
Richard Drabble QC and Tim Buley (instructed by Bindmans LLP) by written submissions for the Intervenors
Hearing dates: 9 TH & 10 TH June 2014
Introduction
The issue in this appeal from the determination promulgated on 22 nd February 2013 of the Upper Tribunal (Immigration and Asylum Chamber) [2013] UKUT 89 (IAC) is whether a third country national ex-spouse of a Union citizen must 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 ("the Directive").
Article 13
Article 13 provides:
"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 2of 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."
Facts
The Appellant, NA, is a citizen of Pakistan. In September 2003 she married KA, a German national. In March 2004 the couple moved to the UK. Their relationship deteriorated. NA suffered a number of incidents of domestic violence. Following an assault on NA in October 2006 KA left the matrimonial home. In December 2006 he left the UK. While he was in the UK KA was either a worker or self employed. NA and KA had two daughters, MA and IA, both born in the UK on 14 th November 2005 and 3 rd February 2007, respectively. KA purported to divorce NA by a talaq issued in Karachi on 13 th March 2007. In September 2008 NA instituted divorce proceedings in the UK, and the decree absolute was issued on 4 th August 2009. NA was granted custody of the two children who are both German nationals.
National law
Article 13(2) of the Directive is transposed into national law by Regulation 10 of The Immigration (European Economic Area) Regulations 2006 ("the Regulations"). Among the conditions that KA had to satisfy in order to qualify as a "family member who has retained the right of residence" under Regulation 10 was the condition in paragraph (5) that on her divorce she had "ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence". In the Regulations "qualified person" means a person who is an EEA national and in the United Kingdom" (emphasis added) as a jobseeker, worker, self employed or self sufficient person or student.
The requirements of Article 13(2) of the Directive were considered by the Court of Appeal in Amos v Secretary of State for the Home Department [2011] EWCA Civ 552. The primary issue in Amos was whether a divorced third country national applying for permanent residence under the Regulations had to show that their former Union citizen spouse had been working in the UK for a continuous period of five years preceding the application for permanent residence. It was not suggested that the Regulations did not correctly transpose the Directive (paragraph 9). The Court of Appeal decided that, while it was not necessary for applicants to demonstrate that their former Union spouses had worked for a continuous period of five years before the application for permanent residence, the requirements of the Directive applicable to the applicants included the requirement that:
"(1) At all times while residing in this country until their divorce, the [Union] spouse must have been a worker or self-employed (or otherwise satisfied the requirements of article 7(1))." (paragraph 29)
The Court of Appeal said that the Regulations were consistent with this proposition, and 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 (paragraph 30).
The Upper Tribunal's determination
The Upper Tribunal concluded that it was bound by Amos to conclude that in order to retain a right of residence under Article 13(2) it was necessary for the third country national's ex-spouse to be in the UK exercising treaty rights at the time of the divorce (paragraph 50). The Tribunal also said that it would have reached the same conclusion even if it had not been bound by Amos. It considered that the requirement that the ex-spouse must be in the UK exercising treaty rights at the date of the divorce was supported by (i) the second subparagraph of Article 13(2) (paragraph 54); (ii) and the judgment of the ECJ in Diatta v Land Berlin Case 6–267/83 [1986] 2 CMLR 164 (" Diatta") (paragraph 61). The Upper Tribunal concluded that the Appellant could not meet this requirement because, whether one took the time of her divorce as March 2007 (the talaq) or August 2009 (the decree absolute) the date was subsequent to December 2006, when KA left the UK (paragraph 65).
Having decided that the Appellant did not have a retained right of residence under Article 13(2), the Upper Tribunal decided that the Appellant...
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