In a recent judgment, Baigazieva v Secretary of State for the Home Department  EWCA Civ 1088 , the Court of Appeal has confirmed that an Applicant making a retained rights application does not need to provide evidence that their partner was undertaking a qualified activity at the date their divorce comes through. Instead, the Home Office should accept evidence of the EEA national’s activity at the point when divorce proceedings were started has been provided.
The Baigazieva case involved a national of Kyrgyzstan who was appealing the Upper Tribunal finding that she had not retained a right of residence as the former spouse of an EEA national under regulation 10(5) of the Immigration (European Economic Area) Regulations 2006. The Regulations have been updated since then, but remain substantively the same. Regulation 10(5) allows a family member of an EEA national to retain a right of residence following the termination of their relationship where certain criteria are met, provided that evidence of the EEA national’s qualifying activity – work, self-employment, study etc – at that time can be provided. Regulation 10 also covers a person’s ability to retain their rights following the death of their family member.
The Upper Tribunal concluded that the Appellant had to establish that her former spouse was a qualified person up until the divorce was finalised. As sufficient evidence to show this had not been provided, the refusal of her application was considered to be correct. The Appellant’s representatives appealed this finding, relying on a previous judgment of the Court of Justice of the European Union which had considered this requirement in relation to cases which also involved domestic violence. In relation to these types of cases, it was found that there is an important difference between the point that a right of residence is retained and the criteria that should need to be met for that to happen. It was argued that this distinction should apply in this case also.
Perhaps surprisingly, the Home Office didn’t choose to oppose the appeal, but instead agreed with the Appellant’s representatives and invited the Court of Appeal to review the case and make comments on the correct interpretation of the Regulation. These comments have now been released and confirm that, although a family member will not actually acquire a retained right of residence until their relationship is terminated (divorce proceedings finalised), the evidential burden on that family member should only be to demonstrate their former partner’s qualifying activity at the date that their relationship began to break down (divorce proceedings initiated).
This decision is surely welcomed by many Applicants who face the obvious difficulties of trying to obtain evidence from their former partner once their relationship has irretrievably broken down.
If you believe that this decision may affect you and would like to discuss it further then please contact one of our team on 0161 234 6800 (Manchester) or 0151 305 9600 (Liverpool).