Nazia Ahmed v The Secretary of State for the Home Department

A divorced third-country national cannot retain a residence right under Article 13 of Directive 2004/38/EC unless the Union-citizen spouse was in the host state and exercising Treaty rights when the marriage was lawfully terminated. The domestic-violence condition is not a free-standing exception.

Article 20 TFEU may protect a third-country national who is the primary carer of Union-citizen children who are nationals of another Member State. The question is whether refusal would in practice require the children to leave the Union. A primary carer may also derive residence from a child’s education under Article 12 of Regulation 1612/68 where the EEA-national parent was previously employed in the host state. The parent need not have been working when the child began education.

Nazia Ahmed v The Secretary of State for the Home Department concerned a Pakistani national who divorced her German-national husband after he had left the United Kingdom. Their two German-national children remained with her and were in education in the United Kingdom.

The Secretary of State refused a permanent residence card. The First-tier Tribunal dismissed the appeal. The Upper Tribunal found material errors in the First-tier Tribunal’s treatment of Article 8 ECHR and its failure to address Article 12 of Regulation 1612/68.

The central issues were whether the appellant retained a right of residence on divorce, had derived rights under Article 20 TFEU or Article 12 of Regulation 1612/68, and whether refusal was disproportionate under Article 8 ECHR.

1. Appeal allowed. The First-tier Tribunal had materially erred in law. Its decision was set aside and the Upper Tribunal remade the decision.
2. Under Article 13 of Directive 2004/38/EC and regulation 10(5) of the Immigration (European Economic Area) Regulations 2006, a former spouse can retain a residence right only if that right existed until the lawful termination of the marriage. The Union-citizen spouse must therefore have been in the United Kingdom and exercising Treaty rights at divorce. The conditions in Article 13(2)(a)–(d), including domestic violence, do not independently create such a right. Amos [2011] EWCA Civ 552 was binding and was followed.
3. The appellant did not meet that requirement because her former husband had left the United Kingdom before either possible date of divorce. She therefore had no retained right under the Directive or the 2006 Regulations.
4. Article 20 TFEU nevertheless applied. Refusal was properly treated as indicating removal, and on the accepted facts the children could not realistically live with their mother elsewhere in Union territory. Removal would therefore oblige them to leave the Union.
5. The appellant also had a derived right under Article 12 of Regulation 1612/68. Regulation 15A(3)(c) required an overlap between education and the EEA parent’s presence in the United Kingdom, which was absent. But that domestic provision did not reproduce the wider directly effective right recognised in Teixeira. It was enough that the child had resided in the host state while the EEA parent was employed there.
6. Independently, removal would be disproportionate under Article 8 ECHR. The appellant’s lengthy lawful residence, self-employment, domestic violence, the children’s Union citizenship and education, and the eldest child’s long residence in the United Kingdom outweighed countervailing factors.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and remade it in the appellant’s favour.
• First-tier Tribunal: dismissed the appeal in a determination sent on 22 July 2010.