Upper Tribunal (Immigration and asylum chamber), 2017-09-20, EA/03945/2015
| Jurisdiction | UK Non-devolved |
| Date | 20 September 2017 |
| Published date | 11 May 2018 |
| Hearing Date | 22 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/03945/2015 |
Appeal Number: EA/03945/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03945/2015
THE IMMIGRATION ACTS
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Heard at: Field House |
Decision & Reasons Promulgated |
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On 22nd May 2017 |
On 20th September 2017 |
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Before
UPPER TRIBUNAL JUDGE BRUCE
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
AIGULU BAIGAZIVA
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr McGirr, Senior Home Office Presenting Officer
For the Respondent: Ms Patyna, Counsel instructed by Sterling & Law Associates Ltd
DECISION AND REASONS
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The Respondent is a national of Kyrgyzstan born on the 2nd November 1982. On the 24th November 2016 the First-tier Tribunal (Judge S. Meah) allowed her appeal under the Immigration (European Economic Area) Regulations 2006 (‘the Regs’), finding that she had retained a right of residence as the former spouse of an EEA national. The Secretary of State for the Home Department now has permission to appeal against that decision.
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The agreed facts are that Ms Baigaziva arrived in the UK in June 2009 with valid leave to enter as a Tier 4 (General) Student Migrant. In October 2011 she was granted a residence card on the basis of her marriage to Ceslavas Levanovicous, a Lithuanian residing in the UK. The marriage ended, that is to say a decree absolute was granted, on the 6th May 2015. On the 12th June 2015, she made an application for a residence permit as a family member with retained rights of residence.
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In response to Ms Baigaziva’s application the Secretary of State for the Home Department issued a decision letter dated 9th December 2015. The application was rejected for only one reason. Ms Baigaziva had failed to demonstrate that her ex-husband had been exercising treaty rights at the date that her marriage terminated, the 6th May 2015. Three payslips from 2014 had been submitted but this was not sufficient information for the Secretary of State for the Home Department to be satisfied that he had continued to work up until the time of divorce. Ms Baigaziva requested that the matter be reviewed, and asked that the Secretary of State for the Home Department conduct inter-departmental checks on her ex-husband’s work record. This the Secretary of State did. A supplementary refusal letter was issued on the 5th May 2016. The Secretary of State had checked HMRC records and was satisfied that Mr Levanovicous had been working from the 8th September 2014 to the 4th December 2014. There was no evidence that he had been working in May 2015 and so the decision to refuse was maintained.
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The First-tier Tribunal was asked to determine the matter on the papers before it. Ms Baigaziva submitted what evidence she had, and a skeleton argument. Therein her representatives placed express reliance on Article 13(2) of the Directive 2004/38/EC1 (‘the Directive’), and on the decision in Singh and Others v Minister for Justice and Equality C-218/14. It was argued that the Secretary of State for the Home Department had been wrong to focus on the date of divorce: the relevant date was in fact the 4th December 2014, the date that Ms Baigaziva had instituted divorce proceedings. Since the HMRC records showed that her ex-husband had been working in the UK on that date, it followed that her application should have been granted.
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This line of argument was adopted by the First-tier Tribunal. The determination holds, “in the light of Singh and Others”, that the interpretation made by Ms Baigaziva’s representatives was correct. The relevant date for the purpose of calculating whether she had retained her rights of residence was the 4th December 2014, the day that she filed for divorce. The appeal was thereby allowed.
The Secretary of State’s Appeal
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The single ground of appeal is that the decision of the First-tier Tribunal is flawed for legal misdirection. The Secretary of State for the Home Department contends that the relevant date is the date of dissolution of marriage not the date upon which divorce proceedings are instituted. The Secretary of State submits that the First-tier Tribunal has misunderstood the ratio decidendi of Singh and Others.
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Before me Mr McGirr submitted that the operative domestic law is Regulation 10(5) of the 2006 Regs. Sub-paragraph (a) thereof contains three limbs. The applicant must have been a ‘family member’, her spouse must have been a ‘qualified person’ and those two conditions must have been in existence upon the termination of marriage:
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;
…..
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An unambiguous requirement, as far as the Regulations are concerned, was therefore whether Mr Levanovicius had been a ‘qualified person’ at the date that the marriage was terminated.
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As for Singh, Mr McGirr argued that this decision simply could not be read in the manner suggested by the First-tier Tribunal. That case concerned a different factual matrix, and a different legal question. The matter before the CJEU had been whether a non-EEA spouse could retain a right of residence in circumstances where their EEA spouse had left the member state where they had both lived, and then filed for divorce. The findings of the court, that rights were not retained in those circumstances, did not assist Ms Baigaziva.
The Response
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Ms Patyna submitted that the First-tier Tribunal had not erred. It had directly applied the terms of the Directive:
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:
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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
…
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This had been the Article under consideration in Singh. The matter in issue before the court in that case had been whether a non-EEA spouse could retain a right of residence where his divorce was preceded by his EEA wife leaving the member state in question. The court held not, on the basis that the EEA spouse having already left, there were no Article 7(1) rights for the non-EEA spouse to retain, but in reaching that conclusion said the following:
59 In accordance with Article 13(2)(a) of Directive 2004/38, divorce does not entail the loss of the right of residence of a Union citizen's family members who are not nationals of a Member State 'where … prior to initiation of the divorce … proceedings … the marriage … has...
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