Successful appeal confirms that cohabitation is not required under Immigration (EEA) Regulations 2006 to succeed in the application for a residence card after a divorce with an EEA national.
The case arose out of a refusal of the Secretary of State (Respondent) to issue a Residence Card to a national of Belarus (Appellant) based on a retained right following a divorce with an EEA national as per Regulation 10(5) of the Immigration (EEA) Regulations 2006 (Regulations).
The crucial issue in the proceedings was the interpretation of the relevant provision. It was material to determine whether cohabitation for 12 months was required or mere presence of both people in the UK sufficed.
Shortly after entering the UK, the Appellant’s relationship with her former spouse broke down and they stopped living together, which is why the Respondent argued that the Appellant did not meet the Regulations’ requirements. At the time of divorce, they had both spent 17 months in the UK.
The Judge has found the Appellant’s argument more convincing, namely that the Regulations do not require cohabitation, but mere presence in the same country for 12 months. The argument was supported by case law, including Diatta v Land Berlin 1985, where it was stated that, for the purposes of the Regulations, marriage does not mean matrimonial cohabitation.
Accordingly, the appeal was allowed because the Respondent has misinterpreted the Regulations.