NA v Secretary of State for the Home Department

Article 13(2) of Directive 2004/38/EC contains no express requirement that a Union citizen’s former spouse was exercising Treaty rights in the host Member State when the divorce became final. Whether such a requirement is implicit was not acte clair. The Court of Appeal treated Amos as non-binding on the issue because the point had been dealt with by concession. It declined to adopt a separation-based construction, but recognised competing textual, purposive and anti-abuse considerations. The question was therefore referred to the Court of Justice for a uniform answer.

NA, a Pakistani national, married a German national and moved to the United Kingdom. She experienced domestic violence, obtained custody of their children and was divorced after her former husband had left the United Kingdom. The Upper Tribunal held that she could not retain a right of residence under Article 13(2) because her former spouse was not exercising Treaty rights at the date of divorce, following Amos [2011] EWCA Civ 552. It allowed her appeal on other grounds. The Court of Appeal considered whether Article 13(2) required the former Union spouse to remain a qualified person at divorce, whether the national Regulations correctly transposed the Directive, and whether gateway or separation constructions were appropriate. It referred the issue for a preliminary ruling.

The Court of Appeal did not finally determine whether NA retained a right of residence. It made a preliminary reference to the Court of Justice of the European Union.

1. Text and national law. Article 13(2) of Directive 2004/38/EC contains no express requirement that the former Union spouse was exercising Treaty rights in the host Member State at the date of divorce. Regulation 10 of the Immigration (European Economic Area) Regulations 2006 nevertheless imposed such a condition through the qualified-person requirement.
2. Effect of Amos. Although the Upper Tribunal considered itself bound by Amos [2011] EWCA Civ 552, the Court of Appeal held that Amos was not binding authority on the proper transposition of the Directive. The relevant issue had been dealt with by concession in that earlier appeal.
3. Competing constructions. The Court was not persuaded that the separation construction adopted in Lahyani [2013] IEHC 176 should be followed. Diatta v Land Berlin, Case 6-267/83 [1986] 2 CMLR 164, made clear the need for legal certainty as to when a marriage ends. However, the gateway construction had force because the second subparagraph of Article 13(2) imposed post-divorce requirements on the third-country national, including self-sufficiency before permanent residence. The textual argument based on retention had to be balanced against the provision’s purpose and the risk of abuse where a Union spouse left before decree absolute.
4. Reference. Neither party submitted that the answer was acte clair, and the answer should be uniform across Member States. The Court accordingly referred whether a third-country national ex-spouse must show that the former Union spouse was exercising Treaty rights in the host Member State at the time of divorce. The separate issues concerning Article 20 of the Treaty, Article 12 of Regulation 1612/68 and Article 8 of the European Convention on Human Rights were not finally determined by this reference.

• Upper Tribunal (Immigration and Asylum Chamber). In [2013] UKUT 89 (IAC), the Tribunal held that Article 13(2) required the former Union spouse to be exercising Treaty rights at the date of divorce. It also allowed the appeal on other residence and human-rights grounds.
• Court of Appeal (Civil Division). The Court considered the appeal and referred the interpretation of Article 13(2) to the Court of Justice of the European Union.