Amos v Secretary of State for the Home Department

A non-EEA former spouse seeking permanent residence must first establish a qualifying right of residence before considering whether it was retained after divorce. The former EEA spouse must have satisfied the conditions for residence before the divorce, but need not have worked continuously for five years before the application. The claimant must satisfy the retained-residence conditions, including the required duration of the marriage and residence in the host state, together with the claimant’s own worker, self-employed, resource and insurance requirements. After five years’ lawful residence, permanent residence may arise under the Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006. Immigration appeals are essentially adversarial, and the Secretary of State has no general duty to obtain evidence from other departments for an appellant.

These were conjoined appeals concerning permanent residence after divorce from French EEA nationals. Mr Amos’s appeal had been dismissed by the Upper Tribunal after it applied the reasoning in OA [2010] UKAIT 00003. Ms Theophilus’s appeal had been dismissed because she had not shown that her former husband was exercising treaty rights at the date of divorce.

The Court of Appeal granted Ms Theophilus permission to appeal and heard both matters together. The central issues were whether the Directive and Regulations required proof that the former EEA spouses had worked for five years before the applications or at the date of divorce, and whether the Secretary of State had a duty to obtain evidence held by other public authorities.

The court, in the judgment of Stanley Burnton LJ with the Master of the Rolls and Maurice Kay LJ agreeing, allowed both appeals and remitted them for fresh hearings.

1. Acquisition and retention. The Directive confers distinct rights of residence for up to three months, for more than three months and permanently. A divorced spouse must first establish the relevant right of residence before asking whether it has been retained under Article 13. For permanent residence, Article 16(2) and Article 18 are applicable. “Legally” residing has a Community-law meaning and includes lesser rights of residence dependent on the exercise of treaty rights.
2. Requirements after divorce. Article 13 does not require proof that the former EEA spouse continued working for five years before the permanent-residence application. The court held that OA [2010] UKAIT 00003 was incorrectly decided. The relevant requirements were that the EEA spouse had satisfied the qualifying conditions before divorce, the marriage had lasted at least three years including one year in the host state, and the claimant satisfied the continuing worker, self-employed, resource or insurance requirements. The Regulations were consistent with that interpretation. Regulation 10(5) and regulation 15(1)(f) required fresh factual findings.
3. Evidence and procedure. Tribunal appeals are essentially adversarial. The Secretary of State must present the known facts fairly and seek a lawful decision, but need not prove an appellant’s case or obtain information from other departments. EU law leaves procedural matters to domestic law, subject to evidence rules that do not frustrate free movement. The available Tribunal procedures, including evidence directions and witness summonses, were sufficient, and Ms Theophilus had not applied for relevant assistance.
4. Kerr. Kerr v Department for Social Development [2004] UKHL 23 [2004] 1 WLR 1372 concerned inquisitorial social-security adjudication and information held by the department deciding the claim. It did not impose a duty on the Home Secretary to obtain evidence from other departments in immigration proceedings.
5. Orders. Mr Amos’s Tribunal decision was set aside and his appeal was remitted. Ms Theophilus’s appeal was likewise remitted for a fresh determination under the correctly interpreted Regulations.

• Court of Appeal (Civil Division). In [2011] EWCA Civ 552, both appeals were allowed and remitted for fresh hearings.
• Upper Tribunal (Immigration and Asylum Chamber). Designated Immigration Judge Woodcraft dismissed Mr Amos’s appeal on 23 April 2010. Senior Immigration Judge Moulden dismissed Ms Theophilus’s appeal because she had not shown that her former husband was exercising treaty rights at the date of divorce.
• Secretary of State. Applications for permanent residence were rejected, giving rise to the Tribunal appeals.