Retention of rights by non EA nationals
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The case of Ahmed –v- SSHD  was heard by Mrs. Justice Lang and Upper Tribunal Judge Storey. The case stated that it is not possible for a third country national spouse or civil partner to retain residence rights under Article 13(2) of Directive 2004/38, even following domestic violence, unless the EA national spouse is in the UK and exercising treaty rights on the date of the divorce or the termination of the civil partnership.
The facts of the case were that the Appellant was a third country national who married her husband in Pakistan in 2003. The husband obtained German nationality after travelling to Germany and both the appellant and her husband migrated to the United Kingdom in 2004 and the Appellant was issued with a residence card that was valid until 21st September 2009. The couple went on to have two children born in 2005 and 2007. Both children were German nationals. In approximately December 2006 the marriage broke down and the husband departed for Pakistan where he divorced the Appellant by Talaq in March 2007. The decree Absolute was issued in the UK in April 2009. The Appellant who had taken up work as a self employed carer in 2007 applied for documents certifying permanent residence on the basis of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 in September 2009. Her self employed work continued until 2011. The Home Office refused the application for a document certifying permanent residence in March 2010 on the ground that she had not shown that her ex husband had been exercising his EU treaty rights in the UK on the date of the divorce. The AIRE Centre, a charity specialising in European law rights intervened in the case.
Four issues were raised by the Appellant and the Aire Centre.
1. Whether the Appellant had retained her residence rights under Article 13(2) of the directive 2004/38 following her divorce from her husband
2. Whether the Appellant could derive a Zambrano style right to residence in the UK from her children, even though they were not British citizens
3. Whether the Appellant following her eldest child entering into full time education, enjoyed a derived right of residence under Regulation 15A of the 2006 Regulations
4. Whether the Respondents, ie., the Home Office refusal to grant the Appellant documents certifying permanent residence violated the Appellant’s rights under Article 8 of the Human Rights Act.
The Appellant made several arguments.
1. Within the text of Article 13(2) of the directive it does not make any reference to the requirements that the EA national spouse being in the host member state on the date of the divorce. It was argued that the Respondent’s interpretation of Article 13(2) places domestic violence victims in the position of inherent vulnerability as the abusers can manipulate their immigration status and it is therefore inconsistent with the EU goal of combating violence against women.
2. The Respondent’s position if accepted, would result in differing rights in the various member states, as each member state has its own national laws concerning the process of divorce
3. The Respondent’s interpretation of Article 13(2) if accepted would mean that paragraph 289A of the Immigration Rules would provide greater protection to domestic violence victims who have leave to remain in the UK under the Immigration Rule, than to family members of EA nationals.
4. The Appellant also suggested that it was not consistent with the teleological interpretation of the directive for the Respondent to require her to obtain and submit proof of her ex husband’s exercise of treaty rights in order to obtain a document certifying permanent residence, at least in cases in which the respondent is better placed to obtain such evidence.
The Appellant and the Aire Centre submitted that the Court of Appeal decision in Amos  was incorrect and that Article 13(2) should be read in conjunction with the charter of fundamental rights of the European Union.
5. The Appellant’s arguments with respect to Article 8 relied upon the lengthy residence and period of work in the UK, as well as the fact that her children were in education in the UK and had no meaningful links with Germany or Pakistan. Additionally, she noted that one of the children had been living in the UK for more than seven years, a fact that would have allowed her to take advantage of the relevant provisions of Appendix FM of the Immigration Rules, if she had made her application after 9th July 2012. Her argument based on Zambrano were similar, although the children were German nationals. They had no meaningful links with Germany and did not speak German. Therefore, the Respondent’s decision denied them the effective enjoyment of the rights of citizens of the Union as they would effectively have no choice but to relocate to Pakistan with their mother if their residence rights in the UK were not recognised.
The determination was that whilst acknowledging that the Appellant and the Aire Centre had made arguments with respect to Article 13(2), the Upper Tribunal adhered to the decision in the Court of Appeal decision in Amos case and found that the Appellant had not retained her residence rights following her divorce as her husband had not been exercising treaty rights in the UK on the date of the divorce.
With respect to Zambrano, the Upper Tribunal found that the Appellant was able to derive residence rights in the UK from Article 20 of the Treaty, notwithstanding the fact that her children were German nationals rather than British citizens.
The Tribunal went on to find that primary carers can have derived residence rights under Article 12 of the Regulations 1612/68 even if the EA national worker’s presence in the UK has not overlapped with the child’s time in compulsory education here, regardless of the contrary requirement found in Regulation 15A of the 2006 Regulation. Finally the Tribunal also allowed the appeal on Article 8 Grounds.