NA v Secretary of State for the Home Department
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LADY JUSTICE SHARP
Areas of Law
- Immigration Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case dealt with whether a third country national ex-spouse of a Union citizen must demonstrate that their former spouse was exercising Treaty rights at the time of their divorce to retain the right of residence in the UK. The Tribunal held that this requirement was necessary under Article 13(2) of Directive 2004/38/EC. The case also explored related issues of self-sufficiency and domestic violence.
Judgment
Introduction
The issue in this appeal from the determination promulgated on 22 nd February 2013 of the Upper Tribunal (Immigration and Asylum Chamber) [2013] UKUT 89 (IAC) is whether a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC (“the Directive”).
Article 13
Article 13 provides:
“Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership
Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:
prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or
this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain s