LS Legal News Bulletin
Retained Right of Residence Significant Law Change
Friday 15th June 2018
The Court of Appeal has recently delivered a judgment in the case of Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 setting out a new precedent that may require appropriate amendments to the EEA Regulations 2016.
The EEA Regulations lays down a set of criteria on how the non-EEA citizen can retain their right to reside in the UK despite divorcing the person from whom they derived that right in the first place. The Court of Appeal has ruled that some of the relevant criteria must be met at the commencement of divorce proceedings, rather than when the divorce is finalised.
As a brief background, the Appellant, Ms Baigazieva, applied to confirm her Retained Right of Residence having divorced her spouse, an EEA national exercising his treaty rights at the point of divorce. The Home Office refused the application on the grounds that she did not provide sufficient evidence of retaining her right of residence. She further lost her appeal in the Upper Tribunal because she could not prove her partner was exercising treaty rights up until the finalisation of their divorce.
In an unusual move, the Secretary of State re-considered his position prior to the appeal being heard and asked the Court of Appeal to rule in favour of Ms Baigazieva. Specifically, the Home Secretary argued that the Upper Tribunal had misunderstood the Court of Justice of the European Union judgment in another similar case, holding that exercising Treaty Rights by an EEA national is important at the point of commencement of divorce proceedings, rather than at the point of divorce itself. Lord Justice Singh agreed with the Home Secretary and accordingly allowed Ms Baigazieva's appeal.
The decision is a welcome news because it recognises that, whilst as a matter of law the non-EEA partner retains a right of residence during the divorce, in practice it will be difficult for the non-EEA partner to obtain evidence from their soon to be ex-partner while a divorce is being negotiated. The former spouse will no longer have to provide evidence about what their partner is doing during the divorce proceedings. The previous requirement for such evidence seems to have left non-EEA citizens vulnerable to vindictive behaviour by their partner whilst the divorce was being arranged.
LS Legal Solicitors have established an outstanding reputation in assisting EU nationals and their family members with their immigration matters. Should you wish to secure your status, please contact our firm on 020 81 44 55 88, via email on info@LSLegaLUK.com or use the contact box to discuss your matter or make an appointment.
