On 30 June 2016, the European Court (CJEU) handed down its decision in Secretary of State for the Home Department v NA
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.