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Family Law

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18 JUL 2016

The CJEU rules on rights of residence of non-EU nationals on divorce

The CJEU rules on rights of residence of non-EU nationals on divorce
On 30 June 2016, the European Court (CJEU) handed down its decision in Secretary of State for the Home Department v NA (Case C-115/15).1 Although it concerns the immigration status of a non-EU citizen, it has (for the time being at least) significant ramifications on the rights of residence of non-EU citizens going through divorce proceedings in the UK. It also serves as a reminder of the need to take specialist immigration law advice at or before the commencement of divorce proceedings.

The summary facts are as follows. A Pakistani wife (W) married a German husband (H) in 2003. They moved to the UK in 2004 but W found herself the victim of domestic violence. H worked throughout his time in the UK. The parties had two children who were both born in the UK. In 2006, H left the marital home and returned to Germany. Two years later in 2008, W issued divorce proceedings in England and decree absolute was pronounced the following year. The CJEU was asked to rule upon whether W retained a right of residence in the UK.

There are three relevant provisions within EU law.

The first is Art 7 of Directive 2004/38, which provides for how rights of residence are acquired. It provides that all EU citizens shall have a right of residence in another Member State if:

(a) they work or are self-employed in the host Member State;
(b) they have sufficient resources to maintain themselves and their family members and have comprehensive medical insurance in the host Member State;
(c) they are enrolled in education and have sufficient resources to maintain themselves and their family members and have comprehensive medical insurance in the host Member State; or
(d) they are a family member of an EU citizen (regardless of whether the family member is an EU citizen or a non-EU citizen) who satisfied one of the above-mentioned conditions.

The second key provision is Art 13(2) of the same Directive. This governs the retention of rights of residency by family members in the event of divorce. It provides that divorce shall not mean the loss of a right of residency of an EU's citizen's family members who are not nationals of a Member State where:

(a) prior to the initiation of the divorce proceedings, the marriage has lasted at least 3 years including 1 year in the host Member State;
(b) by agreement between the spouses or by court order, the spouse who is not a national of a Member State has custody of the EU citizen's children;
(c) residence is warranted by particularly difficult circumstances such as domestic violence; or
(d) by agreement between the spouses or by court order, the spouse who is not a national of a Member State has the right of access to a minor child, provided the court has ruled that such access must be in the host Member State.

1 http://curia.europa.eu/juris/document/document.jsf?text=&docid=181105&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=157994.

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The third key provision is Art 12 of Regulation No 1612/68, which governs the right to education of children of an EU citizen. It provides that children of a national of a Member State who is or has been employed in another Member State shall be admitted to that Member State's education system under the same conditions as nationals of that state if the children reside in that Member State.

One week after the UK voted to leave the EU, the CJEU handed down its judgment. The CJEU cited its own decision in the 2015 case of Singh and Ors (Case C-218/14)2 in which it held that, where an EU citizen leaves the host Member State before the commencement of divorce proceedings, the non-EU national's derived right of residence comes to an end with the departure of the EU citizen spouse and therefore cannot be retained on the basis of Art 13(2)(a). Therefore, W was not entitled to a right of residency on the basis that the marriage had lasted 3 years including 1 year in the UK because H had left the UK before divorce proceedings were commenced.

The CJEU also held that Art 13(2)(c) must be interpreted as meaning that a non-EU national who is divorced from an EU citizen at whose hands they have been the victim of domestic violence cannot rely on the retention of their right of residence in the host Member State, on the basis of Art 13(2)(c) where the commencement of the divorce proceedings post-dates the departure of the EU citizen from the host Member State.

However, as the parties' children had been in the UK since their birth and their father, an EU citizen, had been exercising his treaty right to work in the UK, the children had a right to continue their education in the UK. Moreover, their mother, even though a non-EU citizen, was also entitled to a right of residency pursuant to Art 12 as she had sole custody and, otherwise, the children would not be able to exercise their right to continue their education in the UK. This right of residence was unaffected by the fact that H left the UK before (i) the children commenced education or (ii) the divorce proceedings were commenced. So W and the children could remain here. The decision applies across all of the EU.

This case serves as a vital reminder of the importance of considering immigration issues at the outset, including before the commencement of divorce proceedings. Family lawyers are used to identifying family law issues which may affect international families such as divorce jurisdiction races, but it is also essential to be aware that a step taken in family law proceedings (including the timing of any proceedings) can have a significant effect on a person's immigration status. In some cases there may be a direct conflict between family law (eg wanting to issue divorce proceedings urgently to secure jurisdiction) and immigration law (eg ensuring that a person's immigration status is secured before divorce proceedings are commenced). Therefore, there will often need to be early discussions between experienced and specialist international family and immigration lawyers alert to family law issues.

The author is grateful to Shanaz Haque , Senior Immigration Advisor at Fragomen LLP , for her assistance with this article.

You can follow Michael on Twitter: @michael_allum

2 http://curia.europa.eu/juris/document/document.jsf?text=&docid=165901&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=283028.
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