Hussam Samsam v The Secretary of State for the Home Department

Where the Secretary of State revokes an extant residence card on the ground that its holder no longer has a right to reside, she bears the burden of justifying the revocation. A residence card evidences, but does not create or conclusively prove, the underlying EU right of residence.

For a non-EEA former spouse to retain a right of residence under regulation 10, the marriage must have lasted three years, including one year in the United Kingdom, and the EEA spouse must have been exercising Treaty rights when the marriage ended. The provisions do not require matrimonial cohabitation, continuous proof that the EEA spouse worked throughout the preceding three years, or the former spouse’s continuing economic activity after divorce.

The appellant, a Syrian national, had been issued residence cards as the spouse of a Spanish national said to be exercising Treaty rights. After their divorce, he applied for permanent residence. The Secretary of State instead revoked his current residence card, stating that he had ceased to be a family member of a qualified person.

The First-tier Tribunal dismissed his appeal after placing the burden on him and finding that he had not credibly proved cohabitation, his former wife’s economic activity, and his own post-divorce employment. The Upper Tribunal considered both the lawfulness of the revocation and whether he had acquired a retained right of residence following divorce.

1. Appeal allowed. The First-tier Tribunal made material errors of law. In an appeal against revocation of an existing residence card, the Secretary of State bears the burden of establishing facts that justify cancellation. That burden differs from an applicant’s burden when seeking a new residence document or permanent residence.

2. A residence card is evidence of an EU right of residence, not its source. It is not conclusive proof of continuing entitlement. Nevertheless, an unexpired card has practical value and cannot be arbitrarily revoked. Before making enquiries during its currency, the Secretary of State should demonstrate a reasonable basis for doubting continued entitlement.

3. Under Immigration (EEA) Regulations 2006, regulation 10, the appellant had to establish that his genuine marriage had lasted three years, including one year in the United Kingdom, and that his former wife was exercising Treaty rights when the marriage ended. The requirement that the spouses had resided in the United Kingdom did not require them to have cohabited in the same household.

4. The Secretary of State and the First-tier Tribunal had applied requirements which regulation 10 did not impose. The appellant was not required to prove that his former wife had worked continuously throughout the three years before divorce. Nor did he lose a retained right merely because he was not continuously employed after divorce. The relevant issue was whether the former wife had worker status when the marriage terminated.

5. On the evidence, including the earlier grants of residence cards and evidence of the former wife’s work near the date of divorce, she was a worker at that time. The appellant therefore acquired a retained right of residence. Divorce was not a material change justifying revocation of the residence card issued in 2007.

6. The Tribunal remade the decision by allowing the appeal against revocation, declaring that the residence card remained valid unless and until lawfully revoked, and directing reconsideration of the application for a permanent residence card under regulation 15(1)(f).

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, remade it in the appellant’s favour on revocation, and directed reconsideration of permanent residence.

• First-tier Tribunal (Immigration and Asylum Chamber): On 30 July 2010, dismissed the appeal against revocation of the residence card.