Ahmed v The Secretary of State for the Home Department

A non-EU former spouse seeking to retain a right of residence after divorce must satisfy both a qualifying divorce condition and the continuing conditions applicable before permanent residence. Those conditions include showing worker, self-employed or self-sufficient status, as applicable. The requirement is not confined to a later application for permanent residence. Regulation 10(6) of the Immigration (European Economic Area) Regulations 2006 correctly implements Directive 2004/38. A delayed certificate of application does not establish that work was unavailable where an employer could obtain status verification by other means and there is no finding that the applicant sought work. The appeal was dismissed.

Mr Ahmed, a Pakistani national, appealed against the Upper Tribunal’s dismissal of his challenge to the refusal of an EEA residence card. He relied on a retained right of residence as the former spouse of an EU national. His divorce became absolute on 19 June 2014. It was assumed that his former wife had been working in the United Kingdom and that the marriage had lasted at least three years.

The Upper Tribunal found that Mr Ahmed became a worker only on 6 October 2014 and was not a worker when the marriage ended. The appeal concerned whether the worker condition in Regulation 10(6) was required by Directive 2004/38, and whether delay in issuing a certificate of application had prevented him from working.

1. Appeal dismissed. The Court rejected both the defective implementation issue and the Home Office delay issue.
2. Regulation 10(5) governs retention of residence after divorce. Its paragraph (5)(c) condition must be read with paragraph (6), which requires a non-EEA national to have a status which would qualify under regulation 6, including worker status.
3. The first subparagraph of Article 13(2) of Directive 2004/38 is expressly subject to its second subparagraph. Before acquiring permanent residence, a person claiming a retained right must therefore satisfy the worker, self-employed, self-sufficient or applicable family-member condition. The second subparagraph is not limited to requirements for acquiring permanent residence.
4. The language, context and purpose of the Directive supported that construction. Articles 14(2) and 16 confirmed the continuing nature of the conditions and the distinction between ordinary residence rights and permanent residence. The alternative construction would place non-EU former spouses in a more favourable position than EU nationals and would effectively confer permanent residence under the residence chapter. Recital 15 could not override the operative provisions.
5. The Court explained that Singh v Minister for Justice and Equality C-218/14 and NA Pakistan v Secretary of State for the Home Department; Secretary of State for the Home Department v A (AIRE Centre Intervening) C-115/15 did not determine the meaning of the second subparagraph. In each case the claim failed because the first-subparagraph conditions were not met.
6. The delay argument also failed. An employer could use the employer checking service to obtain a verification notice, and there was no finding that Mr Ahmed had sought work between June and September 2014.
7. A reference to the CJEU was refused because the meaning of the second subparagraph was sufficiently clear.

• Court of Appeal (Civil Division): On 28 February 2017, dismissed the appeal and refused a reference to the CJEU.
• Upper Tribunal (Immigration and Asylum Chamber): On 10 April 2015, Deputy Upper Tribunal Judge Murray dismissed Mr Ahmed’s appeal against the refusal of an EEA residence card, finding that he was not a worker at the date of divorce.