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
lawyers and those worried about staying in the UK after divorce
The criteria for staying in the UK
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
- 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 confusion over retained rights for non-EEA citizens
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 position in cases involving domestic violence
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.
Extending NA v SSHD to all cases of retained rights of residence
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.
Easing the evidential burden
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.
If you are worried about the affect your divorce will have on your Immigration status, you need to access not only to the best divorce solicitor you can afford, but also to an experienced Immigration solicitor. OTS Solicitors are recommended in the Legal 500 for Immigration and Human Rights and our experienced team can advise you on both your divorce and your Immigration status. Call 0203 959 9123 to book your appointment today.