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Residence rights for divorced non-EU citizens improve as Home Secretary concedes appeal

Residence rights for divorced non-EU citizens improve as Home Secretary concedes appeal

Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 is about what happens to a non-EEA citizen spouse if they divorce their EEA citizen partner.

Article 13(2) of the Citizens Rights Directive 2004 lays down a set of criteria on how the non-EEA citizen can retain their right to reside in the UK despite divorcing the person from whom they derived that right in the first place. In summary, the criteria concern the length of marriage, custody of or access to any children from the marriage and protection for victims of domestic violence.

Until this appeal there had been confusion about when those criteria should be applied, but the Court of Appeal has now ruled that it must be at the commencement of divorce proceedings, not when the divorce is finalised. Although decided in April, the judgment only appeared on Bailii yesterday.

The decision means the former spouse will no longer have to provide evidence about what their partner is doing during the divorce proceedings. The previous requirement for such evidence left non-EEA citizens vulnerable to vindictive behaviour by their partner whilst the divorce was being arranged.

A good result for non-EU citizens who get divorced

Ms Baigazieva is a citizen of Kyrgyzstan and claimed to have a retained right of residence because she fulfilled the length of marriage criterion in Article 13(2)(a) of the Citizens Right Directive. She lost her appeal in the Upper Tribunal because she could not prove that her partner was exercising treaty rights up until the finalisation of their divorce.

In an unusual move, the Secretary of State re-considered his position on this issue prior to the appeal being heard and asked the Court of Appeal to rule in favour of Ms Baigazieva. Specifically, the Home Secretary argued that the Upper Tribunal had misunderstood the Court of Justice of the European Union ruling in C‑115/15 Secretary of State for the Home Department v NA.

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In that case, NA was a victim of domestic violence, which is the criterion for retaining residence in Article 13(2)(c). The Court of Justice ruled that the directive distinguishes between the point in time that the residence rights of partners switch from “derived” to “retained”, and the point in time at which one of the criteria must be met, which should be the commencement of divorce proceedings. In other words, the court recognised that the safeguards should be assessed against the situation at the time the marriage actually broke down, rather than waiting until this was recognised in law.

The Upper Tribunal had ruled that this distinction only applied to victims of domestic violence, but in this appeal the Home Secretary changed his mind:

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.

Lord Justice Singh agreed with the Home Secretary and accordingly allowed Ms Baigazieva’s appeal.

The decision is welcome because it recognises that, whilst as a matter of law the non-EEA partner retains a right of residence during the divorce, in practice it will be difficult for the non-EEA partner to obtain evidence from their soon to be ex-partner while a divorce is being negotiated. The unreasonableness of that evidential requirement has always been clear in cases involving domestic violence. The Home Secretary’s concession in this appeal means that, even in ordinary divorce cases, non-EEA nationals will have practical access to the safeguards guaranteed by EU law.

Comment: Aliyah Shaikh of instructing solicitors Sterling Lawyers

The decision has shed light on a previously ambiguous interpretation of Regulation 10(5) of the EEA Regulations 2006 (since revoked and replaced by the EEA Regulations 2016).

This appeal prompted the Secretary of State to accept 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, the decree absolute, itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced. Singh LJ concluded that the Upper Tribunal Judge erred in the approach she took to Regulation 10(5) of the 2006 Regulations.

Agata Patyna of Doughty Street Chambers acted for the appellant, instructed by Nadiya Pylypchuk (under the supervision of Ruslan Kosarenko).

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