Baigazieva  EWCA Civ 1088 is a case of Sterling Law that is an important new precedent on EEA retained rights of residence. The decision, given by Singh LJ of the Court of Appeal, has served a positive outcome to the appeal brought from the Upper Tribunal against the Home Office’s contention that the Appellant’s former spouse was not exercising treaty rights at the point of their divorce.
In doing so, the decision has also shed light by giving a new direction to a previously ambiguous interpretation of law under Article 10(5) of the EEA Regulations 2006, now revoked and replaced by EEA Regulations 2016.
Background: EEA Retained Rights of Residence
The Appellant, Ms. Baigazieva, applied for retained rights of residence on the basis that she was a former family member of an EEA national who was exercising treaty rights at the time of divorce after which she was residing in the UK as a qualified person.
The Home Office, notwithstanding the fact that she was previously issued a residence card as a family member of a qualified person, refused the application on the grounds that she did not provide sufficient evidence that she has retained a right of residence following divorce from an EEA national in accordance with Regulation 10(5) of the Immigration (EEA) Regulations 2006. Inclusive to the the issue of sufficient evidence not being provided, was the contention that the former spouse of the Appellant was not exercising treaty rights at the point of divorce.
As such, the 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 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”).
This case has set a much-needed precedence for both ongoing retained rights of residence applications and appeals, as well as applicants hoping to apply for retained rights of residence as former spouses of an EEA national exercising treaty rights in the UK.
This is a right that has subsisted since 2004 under the Directive of the European Parliament and of the Council of April 2004 (Directive 2004/38/EC) which ordains that it is a right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 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 and is supplemented by Regulation 10 of the EEA Regulations 2006 (and now 2016) which lays out the conditions under which a family member may retain a right of residence.
Accordingly, subsection (5) of Regulation 10 provides that a person satisfies the conditions in this paragraph if –
- He ceased to be a family member of a qualified person on the termination of marriage or civil partnership of the qualified person;
- he was residing the United Kingdom in accordance with these Regulations at the date of the termination;
- he satisfies the condition in paragraph (6)
- either –
- 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.
Until this decision was made an ambiguity persisted on the interpretation of the law under Regulation 10(5) in which it was unascertained whether a third country national ex-spouse is required to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce (note that it is at the time of the divorce and not having acquired the divorce, the decree absolute) in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC. This is despite the Court of Justice of the European Union (CJEU) giving an answer to that question in 2014 in the context of domestic abuse, which was that the EU spouse, as the qualified person, must reside in the host member state until the date of the commencement of the divorce proceedings.
Thereby, the general implication here was that it was not necessary for the EU spouse to reside in the host Member State until the divorce itself was granted. Though at the EU level, such a determination has not, until this Baigazieva  decision, been made in the UK despite the Secretary of State admitting that the issue has arisen in several proceedings in recent years without definitively being resolved.
Success – SSHD Concedes Appeal
As such, the Secretary of State for the Home Office not only conceded the appeal in the public interest so that the court to give a substantive judgement on the issue of law which arises but the this appeal also prompted the SSHD to accept that a third country national, or order to retain a right to reside in the UK in reliance of 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, the presiding judge of this Upper Tribunal appeal delivered a substantive judgment and concluded that the Upper Tribunal Judge erred in the approach she took to Regulation 10(5) of the 2006 Regulations. Ultimately, this judgement which finds that a third country national has to show their former spouse was a qualified person at the point of the initiation of divorce proceedings rather than at the point of divorce, now sets precedent for succeeding cases on the same matter.
The legal representatives of this case were Counsel, Agatha Patyna, from Doughty Street Chambers acting for the Appellant upon the instructions of the Appellant’s legal representative, Nadia Pylypchuk (as supervised by Ruslan Kosarenko) from Sterling Law.
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