Gafri Qudari Balogun v Secretary of State for the Home Department

Under the Directive 2004/38/EC, a third-country national’s derivative residence right under article 7.2 must continue seamlessly until divorce is final. Article 13.2 preserves an existing right; it does not revive one lost earlier. Imprisonment prevents satisfaction of the relevant worker conditions where the Directive’s express temporary-cessation provisions do not include imprisonment. The Court declined to apply Orfanopoulos C-482/01 to that issue, treated the relevant observation in Singh C-218/14 as unnecessary to its decision, and confined X C-930/19 to article 13.2(c) cases.

The appellant, a Nigerian citizen, married a French citizen who exercised Treaty rights in the United Kingdom. He obtained an EEA residence card. Divorce proceedings began in January 2014, but he was imprisoned before the decree absolute in March 2015. His former wife later left the United Kingdom.

The Secretary of State revoked the residence card. The First-tier Tribunal allowed the appellant’s appeal, holding that he retained worker status during imprisonment. The Upper Tribunal allowed the Secretary of State’s appeal. The Court of Appeal considered whether the relevant date was the start of divorce proceedings or the final divorce, and whether imprisonment preserved the appellant’s worker status and residence rights under the Directive 2004/38/EC.

The appeal was dismissed. The Court upheld the Upper Tribunal’s determination on the alternative grounds advanced in the Respondent’s Notice, although the Upper Tribunal’s reasoning was legally erroneous.

1. A third-country national’s rights under article 13.2 are derivative and are not autonomous. The appellant had to show that his rights under article 7.2 continued seamlessly until the divorce was finalised. Article 13.2 preserves an existing right; it does not revive a right lost earlier. The Court relied on the essential reasoning in Singh C-218/14 and approved Baigazieva [2018] EWCA Civ 1088 as a correct summary of the distinction between the date on which the criteria may be met and the date on which the retained right can be relied on.
2. The observation in paragraph 63 of Singh was unnecessary to that decision and could not establish that article 7.2 continued throughout divorce proceedings. It was inconsistent with the structure of article 13.2 and the essential reasoning in NA C-115/15. X C-930/19 was an outlier and was confined to article 13.2(c) cases involving particularly difficult circumstances.
3. Orfanopoulos C-482/01 pre-dated the Directive and concerned automatic expulsion of an EU national, not whether a third-country national remained a worker during imprisonment. Nazli C-340/97 and Dogan C-383/03 concerned the Association Agreement with Turkey and did not determine rights under the Directive. Article 7.3, article 17.1 and regulation 6(2) of the Immigration (European Economic Area) Regulations 2006 made express provision for temporary cessation of work, but did not include imprisonment.
4. Imprisonment therefore caused the appellant to cease meeting the conditions of article 7.2 before the divorce was finalised. Onuekwere C-378/12 provided an independent reason: it would be incoherent to exclude imprisonment from lawful residence for permanent-residence purposes while treating the same period as satisfying the article 7.2 conditions. The Upper Tribunal had erred in holding that the appellant was a worker while imprisoned, but the Secretary of State could rely on the Respondent’s Notice to uphold the outcome. A separate argument concerning the period after release had not been appealed below and was not open at this stage.

1. Court of Appeal (Civil Division) — [2023] EWCA Civ 414: dismissed the appellant’s appeal and upheld the Upper Tribunal’s determination on different grounds.
2. Upper Tribunal, Immigration and Asylum Chamber — determination promulgated 6 January 2022: allowed the Secretary of State’s appeal from the First-tier Tribunal.
3. First-tier Tribunal, Asylum and Immigration Chamber — determination promulgated 6 April 2021: allowed the appellant’s appeal against revocation of his EEA residence card.