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Neutral Citation Number:  EWCA Civ 1088
Case No: C9/2017/3535
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 20 April 2018
LORD JUSTICE SINGH
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
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The Appellant did not appear and was not represented
The Respondent did not appear and was not represented
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LORD JUSTICE SINGH:
Because of the relatively unusual procedural history of the case, I will first explain the circumstances which have led to the court giving judgment in this case today although the parties have agreed a consent order. After this appeal from the Upper Tribunal (Immigration and Asylum Chamber) (UT) had come to this court, the Secretary of State indicated in a letter dated 26 February 2018 that she did not wish to contest the appeal. I made directions on 1 March 2018 requesting the Secretary of State to file a brief position statement explaining why she was willing to concede the appeal and what order she proposed as to costs or any other consequential matters. I also gave permission for the appellant to file a brief written response to that document explaining whether it was agreed that the case should be dealt with by a judgment of the court. In accordance with those directions, those parties have filed the relevant documents, for which I am grateful. As the Secretary of State explains in her position statement dated 13 March 2018 at paragraph 24, although the outcome in this particular appeal is the subject of a consent order, it would be in the public interest for the court to give a substantive judgment on the issue of law which arises. The Secretary of State explains that the issue has arisen in several proceedings in recent years without being definitively resolved. She is also concerned that if there were no substantive judgment of this court, then the decision of the UT in the present case might continue to be cited or relied upon. In the appellant’s response to the Secretary of State’s position statement at paragraph 6, it is agreed that it would be in the public interest for this court to give a short judgment on the issue of law which arises. I agree with the submissions which have been made in writing by both parties. In view of the relatively unusual nature of this case, I have come to the view also that it would be in the public interest for this court to deliver a substantive judgment. I proceed to do so. I am grateful to the Secretary of State, who through counsel has filed a very helpful position statement. I draw upon that position statement for the purpose of giving this judgment. I note that the appellant in substance agrees, as is made clear in the response dated 28 March 2018 to which I have referred.
The appellant is an adult female national of Kyrgyzstan. She seeks permission to appeal against the decision of Upper Tribunal Judge Bruce promulgated on 20 September 2017, in which she concluded that the appellant had not retained a right to reside in the United Kingdom as the former spouse of a European Economic Area (“EEA”) citizen. This appeal turns on the correct interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). On 9 December 2015, when the Secretary of State determined the appellant’s application for a residence permit as a family member with a retained right of residence, the 2006 Regulations were still in force. However, on 1 February 2017 the 2006 Regulations were revoked and replaced by the Immigration (European Economic Area) Regulations 2016 (subject to transitional provisions) (“the 2016 Regulations”). Regulation 10 of the 2016 Regulations corresponds to Regulation 10 of the 2006 Regulations, subject to modest amendments which are immaterial in the present case. The question of interpretation which arises in this case in relation to Regulation 10 of the 2006 Regulations also arises in the same way in relation to Regulation 10 of the 2016 Regulations.
3. In her position statement, the Secretary of State informs the court that having reviewed the law in the light of this appeal, she has come to the conclusion that UTJ Bruce erred in the approach that she took to Regulation 10(5) of the 2006 Regulations. The Secretary of State now accepts that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.
4. The relevant law
This case arises from the Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38/EC or “the Directive”). Article 13(2) of the Directive provides for third country family members of EU citizens to retain their right to reside in an EU Member State in the event of divorce. Article 13(2) states:
“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.”
5. When the present appellant’s application for a residence permit was determined, Article 13(2) had been transposed into domestic law by Regulation 10 of the 2006 Regulations. Regulation 10 so far as material provided:
“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
(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;
6. In the 2006 Regulations a “qualified person” meant a person who was an EEA national and in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student (see Regulation 6).
7. In NA v Secretary of State for the Home Department  EWCA Civ 995, this court referred the following question for a preliminary ruling from the Court of Justice of the European Union (“CJEU”):
“Must a third country national ex-spouse of a Union citizen 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? ”
8. In giving its preliminary ruling, the CJEU reformulated the question to reflect the precise facts of the case before it, which involved domestic violence, and posed the following question:
“… whether Article 13(2)(c) of Directive 2004/38 is to be interpreted as meaning that a third-country national, who is divorced from a Union citizen at whose hands she has been the victim of domestic violence during the marriage, is entitled to retain her right of residence in the host Member State, on the basis of that provision, where the divorce post-dates the departure of the Union citizen spouse from that Member State ”
9. The answer given by the CJEU to that question was that the EU spouse (the qualified person) must reside in the host Member State “until the date of the commencement of divorce proceedings” if the third country victim of abuse is to be entitled to rely on Article 13(2) (c) (see paragraphs 50 to 51 of its judgment). 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 (in the system of family law in this country, that would be by a court issuing a decree absolute).
10. In the current proceedings the appellant submits that this reasoning must logically extend to her circumstances. She does not claim a history of domestic violence but states that prior to the initiation of the divorce proceedings in her case, the marriage had lasted at least three years including one year in the host Member State; in other words, she invokes subparagraph (a) of Article 13(2). She submits that in her case also it was sufficient to provide evidence that her spouse was a qualified person up until the date of the commencement of divorce proceedings and that it was not necessary to provide evidence of that qualified person’s status continuing until the date of the decree absolute.
11. The Secretary of State’s submission
Having reviewed the law again the light of this appeal, the Secretary of State now accepts that there is no principled basis for concluding that the CJEU’s reasoning in NA should not also apply to those who seek to rely on subparagraph (a) of Article 13(2) of the Directive. In NA the CJEU noted when discussing the history of the proposal for the Directive that safeguards were considered necessary “only in the event of final divorce, since, in the event of de facto separation, the right of residence of a spouse who is a third-country national is not at all affected” (see paragraph 47). The CJEU added that “it is apparent from the wording, the context and objectives of Article 13(2) … that the application of that provision, including the right derived from Article 13(2)(c) … is dependent on the parties concerned being divorced” (see paragraph 48).
12. On one view, it could be said that these passages are in tension with how the CJEU ultimately resolved the question which it had to answer in NA. However, the Secretary of State considers that in these passages the CJEU was distinguishing between, first, the point at which the right to reside is retained pursuant to Article 13(2) (in other words, the event of divorce), and secondly, the criteria that must be met for the retention of the right (in other words, the criteria set out in subparagraphs (a) to (d) of Article 13(2) ). For the right to be retained at the point of divorce when the decree absolute was granted, the CJEU held that it was necessary to show that the EEA spouse was a qualified person when divorce proceedings were commenced. To have identified the commencement of divorce proceedings as the point at which to demonstrate qualified person status was consistent with Article 13(2)(a), which refers to the marriage lasting for at least three years “prior to initiation of the divorce”.
13. The Secretary of state considers that this distinction between, first, the time when the right is retained, and secondly, the criteria to be met for retention is a complete answer to the reasoning of UTJ Bruce in the present case. The judge’s reasoning had three main elements. First, she 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” (see paragraph 20 of her determination). Secondly, she stated that “there must logically come a point when rights of residence that were once ‘derived’ become ‘retained'”, citing the CJEU’s judgment in Diatta v Land Berlin (C-267/83,  ECR 567). The judge said that it was difficult to understand why the appellant would need the legal safeguard of Article 13(2)(a) if she still enjoyed the benefits of Article 7(1) as a family member (see paragraph 21). Thirdly, the initiation of divorce proceedings does not provide “a sufficiently clear basis upon which to confer a permanent right of residence”. The judge gave the example of a couple who separate but are then reconciled (see paragraph 22).
14. In the Secretary of State’s submission, the answer to all of these points is to be found in the distinction which the CJEU drew in NA between, first, the point at which the right of residence is retained, and secondly, the criteria to be met for that to happen. The reference in Regulation 10(5)(a) to family member status ceasing “on the termination of the marriage” and the ratio in Diatta are consistent with paragraphs 47 to 48 of the CJEU’s judgment in NA. On this analysis, it is not a question of the third country national “needing” to rely on Article 13(2) while she can still rely on Article 7(1). On this analysis, it is accepted that Article 13(2) does not take effect until the point of divorce. However, this does not mean that the third country national has to show that the qualified person status of her former spouse continued up until that point. There is no warrant, submits the Secretary of State, in the language of Article 13(2)(a) for that conclusion. On the contrary, she submits, the wording of that provision (“prior to initiation of the divorce”) points to the co ntrary construction.
15. The Secretary of State also submits that UTJ Bruce was wrong to be concerned that the initiation of divorce proceedings is not a sufficiently clear juncture at which to allow the right of residence to be retained. She submits that that is not the effect of the CJEU’s judgment in NA when correctly understood. She submits that UTJ Bruce wrongly conflated the retention of the right of residence with the criteria that must be met for its retention. Moreover, contrary to the UTJ’s view, there is no great evidential difficulty in determining whether divorce proceedings had been in initiated or not. This is a simple question of fact to be determined on the evidence of a particular case.
16. On this analysis, the Secretary of State submits that Regulation 10(5) is not only a faithful transposition of Article 13(2)(a) of the Directive but captures more clearly the distinction to be drawn according to the decision of the CJEU in NA between the cessation of family member status at the point of divorce (Regulation 10(5)(a)) and the criteria to be met for the right of residence to be retained at that point (Regulation 10(5)(c)). The Secretary of State has reached this position based mainly on a further review of the CJEU’s judgment in NA, but she submits that her position is also consistent with, first, the approach taken by the CJEU in Singh & Ors v Ministry for Justice and Equality (C-218/14, ECLI:EU:C:2015:476), which the appellant cites at paragraphs 6 to 9 of her grounds of appeal; and secondly, this court’s summary of Singh at paragraph 13 of Ahmed v Secretary of State for the Home Department  EWCA Civ 99, which is referred to at paragraph 18 of the appellant’s grounds of appeal.
17. Finally, the Secretary of State submits that her analysis is also consistent with the judgment of the Irish High Court in Khalid Lahyani v Minister of Justice and Equality  IEHC 176 at paragraphs 16 to 17.
18. In conclusion, therefore, the Secretary of State accepts that the weight of judicial consideration of Article 13(2) of the Directive is against the approach which was taken by UTJ Bruce in the present case. The Secretary of State has considered whether the CJEU’s judgment in NA still leaves sufficient uncertainty so as to warrant an invitation to this court to make a further reference for a preliminary ruling to deal definitively with the wider question which was originally put by this court to the CJEU in NA. However, the Secretary of State has concluded that it is not necessary to make this invitation because she is satisfied that the CJEU’s judgment in NA provides sufficient guidance on the correct approach.
19. I agree with those submissions. I also agree that it is not necessary for this court to make a further reference to the CJEU for a preliminary ruling.
In the light of the position statement to which I have referred, which in substance is agreed by the appellant’s representatives, the parties have agreed a draft consent order for the consideration of this court. I am content to endorse the terms of that consent order. Accordingly, for the reasons which have been set out in this judgment, the court makes the following order:
(1) Permission to appeal is granted.
(2) The appeal is allowed.
(3) The Upper Tribunal’s decision in these proceedings dated 20 September 2017 is set aside.
(4) The First-tier Tribunal’s decision in these proceedings dated 24 November 2016 is restored.
(5) The respondent’s decision dated 9 December 2015 refusing the appellant’s application for a residence permit as a family member with a retained right of residence is quashed.
(6) The respondent is to issue a residence permit to the appellant as a family member with a retained right of residence in the United Kingdom.
(7) The respondent is to pay the appellant’s reasonable costs, to be assessed if not agreed.
Orde r: Appeal allowed
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