Baigazieva v Secretary of State for the Home Department

A third-country national former spouse relying on Article 13(2)(a) of Directive 2004/38/EC need not establish that the former EEA spouse remained a qualified person until the divorce was finalised. It is sufficient that the former spouse exercised Treaty rights until divorce proceedings were initiated.

The right of residence is retained only on divorce, but the conditions for retaining it are assessed by reference to the commencement of the divorce proceedings. Those distinct questions must not be conflated. Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 gives effect to that distinction.

The appellant, a Kyrgyz national, applied for a residence permit as the former spouse of an EEA citizen with a retained right of residence. The Secretary of State refused the application. The First-tier Tribunal allowed the appeal, but the Upper Tribunal set that decision aside on 20 September 2017.

The issue was whether, under Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006, the appellant had to prove that her former EEA spouse was a qualified person until the decree absolute, or only until divorce proceedings began. Although the parties agreed a consent order allowing the appeal, the court gave a substantive judgment because the issue had wider public importance.

Appeal allowed. The court granted permission, allowed the appeal by consent, set aside the Upper Tribunal’s decision, restored the First-tier Tribunal’s decision, quashed the refusal, and directed the Secretary of State to issue a residence permit.

1. The court accepted the Secretary of State’s revised position. The guidance in the CJEU judgment in NA v Secretary of State for the Home Department established that an EEA citizen need reside in the host state only until divorce proceedings commence. That reasoning was not confined to domestic-violence cases under Article 13(2)(c) of Directive 2004/38/EC. It also applied to the duration condition in Article 13(2)(a).

2. Article 13(2) distinguishes between the event at which a right of residence is retained and the conditions which must be satisfied for that retention. Divorce is the event at which the right is retained. The relevant qualifying conditions may nevertheless be met by reference to the initiation of the divorce proceedings.

3. Accordingly, Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 did not require proof that the former EEA spouse continued to exercise Treaty rights until the decree absolute. The Upper Tribunal had wrongly conflated the point at which family-member status ceased with the temporal conditions for retaining a right of residence.

4. The commencement of divorce proceedings was a sufficiently clear factual juncture. No further reference to the CJEU was necessary. The respondent was ordered to pay the appellant’s reasonable costs, to be assessed if not agreed.

• Court of Appeal (Civil Division) — appeal allowed; the court gave substantive guidance notwithstanding the consent order: [2018] EWCA Civ 1088.
• Upper Tribunal (Immigration and Asylum Chamber) — decision of 20 September 2017 holding that the appellant had not retained a right of residence; set aside by the Court of Appeal.
• First-tier Tribunal — decision of 24 November 2016 restored by the Court of Appeal.
• Secretary of State — refusal of the residence-permit application dated 9 December 2015 quashed.