NA v Secretary of State for the Home Department

The issue in this appeal from the determination promulgated on 22^nd February 2013 of the Upper Tribunal (Immigration and Asylum Chamber) [2013] UKUT 89 (IAC) is whether a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC (“the Directive”).

Article 13 provides:

“Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

1.

Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2.

Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

(a)

prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b)

by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or

(c)

this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d)

by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).”

Such family members shall retain their right of residence exclusively on personal basis.”

The Appellant, NA, is a citizen of Pakistan. In September 2003 she married KA, a German national. In March 2004 the couple moved to the UK. Their relationship deteriorated. NA suffered a number of incidents of domestic violence. Following an assault on NA in October 2006 KA left the matrimonial home. In December 2006 he left the UK. While he was in the UK KA was either a worker or self employed. NA and KA had two daughters, MA and IA, both born in the UK on 14^th November 2005 and 3^rd February 2007, respectively. KA purported to divorce NA by a talaq issued in Karachi on 13^th March 2007. In September 2008 NA instituted divorce proceedings in the UK, and the decree absolute was issued on 4^th August 2009. NA was granted custody of the two children who are both German nationals.

Article 13(2) of the Directive is transposed into national law by Regulation 10 of The Immigration (European Economic Area) Regulations 2006 (“the Regulations”). Among the conditions that KA had to satisfy in order to qualify as a “family member who has retained the right of residence” under Regulation 10 was the condition in paragraph (5) that on her divorce she had “ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence”. In the Regulations “qualified person” means a person who is an EEA national and in the United Kingdom” (emphasis added) as a jobseeker, worker, self employed or self sufficient person or student.

The requirements of Article 13(2) of the Directive were considered by the Court of Appeal in Amos v Secretary of State for the Home Department [2011] EWCA Civ 552. The primary issue in Amos was whether a divorced third country national applying for permanent residence under the Regulations had to show that their former Union citizen spouse had been working in the UK for a continuous period of five years preceding the application for permanent residence. It was not suggested that the Regulations did not correctly transpose the Directive (paragraph 9). The Court of Appeal decided that, while it was not necessary for applicants to demonstrate that their former Union spouses had worked for a continuous period of five years before the application for permanent residence, the requirements of the Directive applicable to the applicants included the requirement that:

“(1)

At all times while residing in this country until their divorce, the [Union] spouse must have been a worker or self-employed (or otherwise satisfied the requirements of article 7(1)).” (paragraph 29)

The Court of Appeal said that the Regulations were consistent with this proposition, and that regulation 10(5) required the divorced third country national to satisfy the condition that their former EEA national spouse was residing in the UK in accordance with the Regulations at the date of the divorce (paragraph 30).

The Upper Tribunal concluded that it was bound by Amos to conclude that in order to retain a right of residence under Article 13(2) it was necessary for the third country national’s ex-spouse to be in the UK exercising treaty rights at the time of the divorce (paragraph 50). The Tribunal also said that it would have reached the same conclusion even if it had not been bound by Amos. It considered that the requirement that the ex-spouse must be in the UK exercising treaty rights at the date of the divorce was supported by (i) the second subparagraph of Article 13(2) (paragraph 54); (ii) and the judgment of the ECJ in Diatta v Land Berlin Case 6-267/83 [1986] 2 CMLR 164 (“Diatta”) (paragraph 61). The Upper Tribunal concluded that the Appellant could not meet this requirement because, whether one took the time of her divorce as March 2007 (the talaq) or August 2009 (the decree absolute) the date was subsequent to December 2006, when KA left the UK (paragraph 65).

Having decided that the Appellant did not have a retained right of residence under Article 13(2), the Upper Tribunal decided that the Appellant did have a right of residence under both Article 20 of the Treaty applying Zambrano (Case C-34/09) [2012] QB 265 principles (paragraph 68), and Article 12 of Regulation 1612/68 (paragraph 78). It also allowed her appeal on Article 8 of the European Convention on Human Rights grounds (paragraph 79). The Respondent Secretary of State’s appeal against the Upper Tribunal’s determination that the Appellant had a right of residence on Article 20 and Article 12 grounds has been adjourned. The Secretary of State has not appealed against the decision of the Upper Tribunal to allow the Appellant’s appeal on Article 8 grounds.

It was common ground that:-

The primary submission on behalf of the Appellant was that in order to retain the right of residence under Article 13(2) it was not necessary for her to show that KA had remained in the UK until the time of their divorce. It was sufficient that she met any one of the requirements (a) – (d) in the first subparagraph of Article 13(2) (“the Gateways”) and that she had been divorced from KA. Before acquiring the right of permanent residence she would also have to meet the requirements of the second subparagraph (the “Gateway” construction). If she did so, she would acquire the right of permanent residence after five years lawful residence in the UK: see Article 18. In imposing the additional requirement that, for KA to be a “qualified person”, he had to be working in the UK at the time of the divorce, the Regulations did not correctly transpose the Directive. Amos was not binding authority to the contrary, and if it was, it was per incuriam.

The Appellant submitted that the “Gateway” construction of Article 13(2) was correct applying conventional principles of interpretation. There was no express condition in Article 13(2) which required the divorced Union citizen to have been working in the host Member state at the date of divorce. The second subparagraph of Article 13(2) was directed to the third country national ex-spouse, and required him/her to be able to show that they were self supporting following the divorce before acquiring the right of permanent residence. Thus, the Directive contained its own safeguard against abuse – following divorce the third country national must be self supporting – and a requirement that the estranged former Union spouse should be working in the host Member state at the date of divorce served no useful purpose.

The Appellant submitted that a purposive or teleological approach should be adopted to the interpretation of Article 13(2). The underlying purpose of the Article is explained in Recital (15) to the Directive, as follows:

“(15)

Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.” (emphasis added)

The Commission’s Proposal for what subsequently became the Directive (2001/0111(COD)) explained that the purpose of Article 13(2):

“is to provide certain legal safeguards to people whose right of residence is dependent on a family relationship by marriage and who could therefore be open to blackmail with threats of divorce. ”

In furtherance of this purpose the Proposal also made it clear that, applying the Diatta line of authority, there is no divorce for the purposes of Article 13(3) until decree absolute has been issued.

Implying a requirement into Article 13(2) that the Union ex-spouse must be working in the host Member state at the date of decree absolute would defeat the underlying purpose of the provision. Divorce proceedings inevitably take some time, in some Member states a number of years, for a decree absolute to be issued. At any time after (a) initiation of divorce proceedings by the third country national; (b) a court order giving custody of the couple’s Union citizen children to the third country national pending a decree absolute; (c) the infliction of domestic violence on the third country national spouse; or (d) a court order giving the third country national the right of access to a minor child in the host Member state prior to a decree absolute the Union spouse would be able to deprive his/her third country national spouse of the right of residence by leaving the host Member state prior to the decree absolute. The potential for blackmail in such cases, particularly in cases involving disputed custody/access arrangements for children, and in cases of domestic violence was plain.

As an alternative to the “Gateway” construction of Article 13(2) the Appellant contended that it should be given an expansive interpretation so that, following the breakdown of her relationship with KA and their separation, NA would retain a right of residence for a reasonable time to enable her to bring divorce proceedings, and to find work or means of support as required by the second subparagraph of Article 13(2). In support of this alternative submission (the “Separation” construction) the Appellant relied upon the decision of Clark J in Lahyani v The Minister of Justice & Ors [2013] IEHC 176.

In written submissions the Aire Centre supported the Appellant’s submissions.

While accepting that there was no express requirement in Article 13(2) that the former Union spouse must have been exercising Treaty rights in the host Member state at the time of the divorce, the Respondent submitted that this requirement was implicit in the title of Article 13 – “Retention of the right of residence by family members in the event of divorce…”. Article 13(2) did not create a new right of residence, nor did it revive a right of residence which, subject only to Article 12(3), would have been lost prior to divorce with the departure of the Union spouse from the host Member state. For a right to be retained in the event of divorce it must have subsisted at the date of divorce. Amos was binding authority for this proposition.

In her Skeleton Argument the Respondent had submitted that the second subparagraph in Article 13(2) supported this interpretation, and that the conclusions of the Court of Appeal in Amos and the Upper Tribunal in the present case to that effect were correct. However, during oral submissions on behalf of the Respondent it was accepted that the second subparagraph of Article 13(2), which is in the same terms as the second subparagraph of Article 12(2) (which deals with the rights of third country nationals in the event of the death of the Union citizen), imposed requirements upon the divorced third country national ex-spouse; and was “neutral” as to the proper interpretation of the first subparagraph of Article 13(2).

Article 12(3) grants a derived right of residence to a parent who is a third country national, and who has actual custody of a child who is a Union citizen enrolled in an educational establishment in the host Member state. This right of residence lasts only until the completion of the child’s studies, and does not lead to a permanent right of residence under Article 18. The Appellant’s “Gateway” construction read into Article 13(2) more extensive residence rights than those conferred on abandoned (but not divorced) third country spouses whose children were enrolled in education in the host member state, and was thus inconsistent with Article 12(3).

The Respondent acknowledged that “hard cases” could arise on her interpretation of Article 13(2), but submitted that the scope for abuse by the Union citizen threatening to leave the host Member state before decree absolute would in practice be limited because he/she would not merely be leaving the host Member state, they would be leaving their employment in that state.

The Respondent submitted that the “Separation” construction of Article 13(2) was contrary to the autonomous EU meaning of the end of a marital relationship established in Diatta, endorsed by the CJEU in Iida v Stadt Ulm C-40/11 (“Iida”) would lead to legal uncertainty and be unworkable in practice. In particular, it would be difficult to decide whether a marriage had lasted for three years for the purpose of requirement (a) in the first subparagraph of Article 13(2) if there was no legal certainty as to when it had ended. The “expansive” interpretation of Article 13(2) adopted in Lahyani was not correct; was distinguishable because Ireland’s divorce laws are particularly restrictive (paragraph 59) and because the issue of permanent residence did not arise in that case (paragraph 69); and in any event was of no avail to the Appellant because she had not begun divorce proceedings within a reasonable time. A period of 18 months before initiating divorce proceedings was held not to be a reasonable time in Lahyani (paragraph 63).

Our reasons for requesting a preliminary ruling from the Court of Justice of the European Union on the proper interpretation of Article 13(2) are as follows:

Accordingly, we pose the following question for the Court:

“Must a third country national ex-spouse of a Union citizen be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC?”