For the purposes of this blog, we intend to address a recent development in the case law in relation to retained rights of residence for former spouses or civil partners of EEA nationals and the evidence that must be produced to show that a person has “retained a right of residence.”
Under regulation 10 of the Immigration (European Economic Area) Regulations 2016, a former spouse (or civil partner) or a direct descendant of an EEA national, in certain circumstances, can apply for a retained right of residence.
The Regulations - detailed above - state that a person can retain a right of residence as the former spouse or civil partner of an EEA national where the EEA national was "residing in the United Kingdom in accordance with these Regulations at the date of the termination of the marriage or civil partnership." The Home Office’s view was that to meet the requirements of the regulations the non-EEA national had to prove that the EEA national was a qualified person - that is, a worker, a jobseeker, a self-employed person, a self-sufficient person or a student - at the date of divorce.
The requirement to provide evidence of the EEA national's status as a qualified person at the date of divorce can lead to difficulties, particularly where the relationship between the EEA national and the non-EEA national is acrimonious.
The difficulty created by the Home Office’s interpretation of Regulation 10(5)(2) has been eased by the recent decision of the Court of Appeal in Baigazieva v Secretary of State for the Home Department  EWCA Civ 1088. The Court of Appeal held, that although the right of residence is retained at the date of divorce, the evidence that needs to be produced in order for that right to be retained is not that the EEA national was residing in the United Kingdom in accordance with the regulations at the date of divorce but that evidence is produced that prior to the initiation of divorce proceedings, the EEA national was residing in the UK in accordance with the Regulations. It is worthwhile noting, at this point, that an individual remains a family member until the point of divorce even where the couple are no longer cohabiting together. On this basis, there will remain circumstances where the applicant has established, prior to divorce, a Permanent Right of Residence and where regulation 10 will not require to be relied upon.
How will Baigazieva assist individuals applying for a retained right of residence?
Immigration lawyers and applicants alike should be welcoming this decision from the Court of Appeal. Prior to this decision, it was difficult for third country nationals to provide evidence that their former spouse was working at the date of divorce as there is often a period of time between the relationship breaking down and the date of divorce.
Until this decision, applicants were having to rely on the Immigration and Asylum Chamber making a direction that the Secretary of State must make enquiries with HMRC as to whether the EEA national was exercising treaty rights at the date of divorce. This is in line with the Secretary of State’s policy, which is detailed in ‘Free movement rights: retained rights of residence’. This policy states the following:
"Where a relationship has broken down due to domestic violence or other difficult circumstances it may not always be possible for the applicant to provide all of the necessary documents about the EEA national sponsor. In such circumstances, you can make further enquiries about the EEA national sponsor’s status but only where the applicant has shown they have made every effort to provide the necessary evidence."
This being said, the Tribunal have been, on occasion, reluctant to direct the Secretary of State to make enquiries with HMRC. Prior to Baigazieva, and without evidence that the EEA national was exercising treaty rights at the point of divorce, an application for a retained right of residence was bound to be refused.
As such, the findings of the Court of Appeal in Baigazieva are welcome because they ease the evidential burden on applicants by allowing them to prove that their EEA national spouse (or civil partner) was a qualified person at the initiation of divorce proceedings. The logic being that it is easier to obtain evidence of exercising treaty rights at the point the relationship breaks down as opposed to the point of divorce – given the timeframes involved. This decision lifts the requirement for former spouses (or civil partners) to provide evidence about their former partners’ activities during the divorce proceedings, which thereby reduces the vulnerability of non-EEA nationals who may be subject to vindictive behaviour by their EEA national former partner during the divorce proceedings.
While the findings of the Court of Appeal in this case are welcome, they are yet to be transposed into mainstream decision-making. These findings are yet to be included in the retained rights guidance and they do not appear in the draft immigration rules known as Appendix EU, which are contained in the EU Settlement Scheme that is due to become fully operational on 30 March 2019. In the Appendix EU, the concept of the termination of the marriage or civil partnership hinges on "the date on which the order finally terminating the marriage or civil partnership is made by a court."
There will, of course, remain instances where the relationship has broken down in advance of divorce proceedings and in these instances, a request should be made to the Secretary of State to follow her policy and make enquiries with HMRC. This request should be put in writing to the Secretary of State during consideration of the application. If the Secretary of State fails to comply with the request, and the application is refused, the request should be advanced to the Immigration and Asylum Chamber.
If you are looking to apply for a retained right of residence – or indeed permanent residence where there is separation but no divorce – or if you have any other immigration matter, please do not hesitate to contact any member of the Immigration Team at Drummond Miller - we are happy to help.