Retaining residence rights – non-EEA citizens and divorce

If a non-EEA citizen has a right of residence in the UK through marriage to an EEA citizen, what happens to that right to reside if the couple divorces? Although there is provision for a non-EEA citizen to carry on living in the UK following divorce, there has been some confusion over when the criteria should be applied to establish a retained right of residence in the UK. This has now been cleared up by the Court of Appeal and should bring clarity for divorce and Immigration lawyers and those worried about staying in the UK after divorce.

The Citizens' Rights Directive 2004 includes the criteria that apply to a non-EEA citizen wishing to stay in the UK following divorce. If the right to reside in the UK derives from the marriage to an EEA citizen in the first place, divorce can obviously be problematic for residence. This was addressed in the Citizens' Rights Directive which provides that a non-EEA citizen does not lose the right to residence in the UK (or in another Member State) on divorce if:

- The marriage has lasted for at least 3 years, at least one of which spent in the host state; or

- The non-EEA citizen has custody of the children of the relationship; or

- The non-EEA citizen was a victim of domestic abuse; or

- The non-EEA citizen has access to a minor child, within the host Member State, and for as long as is required.

In addition to one of the above, the non-EEA citizen must show either that they are a worker or self-employed, or have resources to support themselves, including comprehensive sickness insurance cover. The right of residence that continues following divorce is retained only on a personal basis.

The question arose over the date when the criteria had to be applied. The retained right of residence derives from the marriage to a ‘qualified person’ - an EEA national in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student (Regulation 6 of the Immigration (European Economic Area) Regulations which implement the relevant directive). It had been thought that the EEA spouse or civil partner would have to have remained in the relevant Member State where the couple had lived - and where the non-EEA citizen wished to retain residence – until the date the divorce was finalised. This caused difficulties for many non-EEA citizens, and for even the best divorce lawyers, whose partners would behave in a way that would make it difficult to obtain the necessary evidence.

The question was referred to the Court of Justice of the European Union (CJEU) in the case of NA v Secretary of State for the Home Department. In that case, NA had been the victim of domestic abuse. Her husband was a German national and had left the UK before the divorce proceedings were issued by NA. The outcome of the reference to the CJEU was a determination that the spouse only had to be resident in the relevant EU country at the time divorce proceedings were issued. FOllowing the decision in NA, the Secretary of State for the Home Department had taken the position that this was confined to cases involving domestic violence.

The recent case of Baigazieva v Secretary of State for the Home Department did not involve domestic violence. She relied on the criterion that her marriage to an EEA national had lasted at least 3 years, and at least one of those years had been spent in the UK. She argued that the ruling in NA applied equally to her case, despite the fact that there was no domestic violence involved. The First Tier Tribunal had agreed with her, but the Upper Tribunal had overturned that decision and refused to uphold her retained right of residence.

The case – or rather the circumstances of the Court of Appeal’s judgment – are interesting, particularly for Immigration lawyers and divorce lawyers in London because the case itself was concluded by agreement through a consent order. However, because of the complexity of the law, the Secretary of State for the Home Department indicated that it would be in the public interest for the Court of Appeal to decide the substantive legal points in issue.

The Secretary of State’s submission to the Court of Appeal was that, having reviewed the law, there was no basis for confining NA to cases of domestic violence only. Although the right to reside is only retained by a non-EEA citizen when their divorce to the ‘qualifying’ EEA national becomes final (in the UK with the issue of the decree absolute), the criteria to be met are measured at the date that the divorce proceedings are commenced.

Although cases involving domestic violence are particularly difficult, evidential requirements can always be complex whatever the circumstances. As divorce law solicitors are only too aware, once divorce proceedings are underway, it can be difficult if not impossible to obtain evidence from the former partner.