Asad Ur Rehman v The Secretary of State for the Home Department

A requirement in domestic immigration regulations to provide specified evidence must be interpreted consistently with European Union law. Administrative requirements for residence documentation cannot create an undue obstacle to a right of residence or require documents which are not needed to establish the particular right asserted.

For a retained right of residence following divorce, Immigration (European Economic Area) Regulations 2016, regulation 18 requires the non-EEA-national applicant to produce a valid passport and proof of the retained right. The former EEA spouse’s passport may be required only where it is necessary to establish that right. A blanket application of regulation 21(5), and consequently regulation 42, is unlawful where that document is unnecessary.

The appellant, a Pakistani national, had previously held a residence card as the spouse of an EEA national. Following divorce, he applied for a residence card recognising a retained right of residence.

The Secretary of State refused the application solely because he had not provided his former spouse’s passport or identity card, or explained why he could not obtain it. The First-tier Tribunal dismissed his paper appeal, holding that he had to produce that document.

The appellant appealed to the Upper Tribunal. The central issue was whether regulations 21 and 42 of the Immigration (European Economic Area) Regulations 2016 permitted refusal solely for failure to provide the former spouse’s specified identity document.

1. Appeal allowed. The First-tier Tribunal made an error of law by treating regulation 18 as requiring production of the former EEA spouse’s passport. Its decision was set aside.

2. Regulation 18(2) requires a non-EEA-national applicant for a residence card based on a retained right to provide a valid passport establishing the applicant’s identity and proof that the applicant has retained a right of residence. The provision does not, on its wording, require the passport of the EEA national.

3. The documentary evidence needed to prove the retained right depends on the right asserted and the circumstances. Under Article 25 of the Citizens Directive, entitlement to residence rights may be established by other means of proof. The principles in Barnett and Others (EEA Regulations; rights and documentation) [2012] UKUT 00142 therefore applied equally under the 2016 Regulations.

4. Regulations 21 and 42 create an administrative process, but must be read consistently with European Union law. If the former spouse’s document is not in fact necessary to establish a retained right, regulation 21(5) cannot be applied as a blanket basis for refusal. In such a case, the applicant also cannot be required under regulation 42 to explain failure to produce it.

5. Here the respondent accepted that the appellant met regulation 10(5), and had already accepted his marriage to an EEA national when issuing the earlier residence card. There was no evidential doubt for which the former spouse’s passport was required. The refusal therefore breached the appellant’s EU Treaty residence rights.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on EU law grounds and set aside the First-tier Tribunal decision: [2019] UKUT 195 (IAC).
• First-tier Tribunal: Dismissed the appellant’s paper appeal in a decision promulgated on 18 June 2018, holding that he had to produce his former spouse’s passport or identity card.