Baigazieva v Secretary of State for the Home Department  EWCA Civ 1088 (20 April 2018): In this case the Home Office extraordinarily conceded that for a third country national to retain residence rights in the UK under article 13(2)(a) of the Citizens' Directive (2004/38/EC) as a former spouse of an EEA national, the EEA spouse must have resided in the UK until the date of commencement of divorce proceedings. However, it is not necessary for the EEA spouse to have resided in the UK until the divorce is granted. Since the concession is significant, it is in the public interest for it to be recorded in a judgment of the Court of Appeal so as to promote uniformity in retained rights cases. Baigazieva was from Kyrgyzstan. She appealed UTJ Bruce's decision of September 2017 where it was determined that she had not retained a right to reside in the UK as the former spouse of an EEA citizen. Singh LJ explained that the appeal concerned the correct interpretation of regulation 10(5) of the Immigration (European Economic Area) Regulations 2006. The earlier regulations were replaced by the Immigration (European Economic Area) Regulations 2016 but that transition did not impact upon the outcome of the present appeal. Baigazieva's case was based on article 13(2)(a) of the Directive because prior to the commencement of divorce proceedings her marriage had lasted at least three years including one year in the host member state.
The Home Office took the position that UTJ Bruce erred in thinking that to retain a right of residence it must be demonstrated that the former EEA spouse exercised treaty rights as a qualified person until the divorce itself because it sufficed to show that the former EEA spouse exercised treaty rights until divorce proceedings were initiated. The framework for the retention of residence rights has been addressed in numerous judgments. The Court of Appeal's reference in NA (Pakistan)  EWCA Civ 995 resulted in the ruling in NA (Pakistan) (C-115/15, ECLI:EU:C:2016:487, see here) where the CJEU took the view that the qualified person EU spouse must reside in the host member state "until the date of the commencement of divorce proceedings" for the non-EU spouse to be in a position to claim retention of residence rights under article 13(2)(c) which concerns victims of abuse. It was not held that it is necessary for the EU spouse to reside in the host member state until the divorce is itself granted (a decree absolute in the present jurisdiction). Despite the official concession, the change has not yet been incorporated into the retained rights guidance (version 3.0) which still insists on a decree absolute as an "end of relationship" document.
Lord Justice Singh
The Court of Appeal agreed with the written submissions made by the Home Office and found no reason to make any further reference to the CJEU for a preliminary ruling. The government conceded that no principled basis exists for concluding that the CJEU's reasoning in NA regarding article 13(2)(c) should not also apply to persons relying on article 13(2)(a) of the Directive. Some tension emerges in different parts of the NA judgment but overall the CJEU distinguished between the point at which the right to reside was retained pursuant to article 13(2), namely the event of divorce, and the criteria that had to be met for the retention of the right, i.e. the criteria set out in article 13(2)(a) to (d). To identify the commencement of divorce proceedings as the point at which to demonstrate qualified person status is consistent with article 13(2)(a), which makes reference to the marriage lasting for at least three years "prior to initiation of the divorce". The distinction between the time when the right is retained and the criteria to be satisfied for retention provided a complete answer to the decision of the UT in Baigazieva's case.
Baigazieva stressed that it was sufficient to provide evidence of her spouse's status as a qualified person when divorce proceedings were commenced. Therefore, it was not necessary to provide further evidence confirming such status until the date of the decree absolute.
UTJ Bruce's findings rested on a three-pronged analysis whereby she (i) relied on the reference in regulation 10(5)(a) to the status of a family member of a qualified person ceasing "on the termination of the marriage", (ii) cited Diatta v Land Berlin (C-267/83, ECLI:EU:C:1985:67) to recall "there must logically come a point when rights of residence that were once derived become retained", and (iii) considered that the initiation of divorce proceedings does not provide "a sufficiently clear basis upon which to confer a permanent right of residence".
On the second point the UT found it difficult to understand why Baigazieva would need the protection of article 13(2)(a) if she continued to enjoy the benefits of article 7(1) as a family member. On the third point UTJ Bruce fell into the trap of gravitating towards the hypothetical case of a couple who separate but reconcile later. The Home Office submitted, in line with its complete answer approach, that the reference in regulation 10(5)(a) to family member status ceasing "on the termination of the marriage" and the ratio in Diatta are consistent with the CJEU's judgment in NA. Singh LJ put the point in the following way:
14. … On this analysis, it is not a question of the third country national "needing" to rely on article 13(2) while she can still rely on article 7(1). On this analysis, it is accepted that article 13(2) does not take effect until the point of divorce. However, this does not mean that the third country national has to show that the qualified person status of her former spouse continued up until that point.
Therefore, UTJ Bruce had been wrong to think that the initiation of divorce proceedings was an insufficiently clear juncture at which to allow the retention of residence right to occur. She had incorrectly conflated the right of residence with the criteria for retention. Similarly, there was no great evidential difficulty in determining whether divorce proceedings had been initiated because this is a simple question of fact to be determined on the evidence of an individual case. It was therefore abundantly clear on any view that regulation 10(5) not only faithfully transposed article 13(2)(a), but that it also captured more clearly the distinction to be drawn within the meaning of the ruling in NA.
These conclusions were also harmonious with the result in the Irish case of Singh (C-218/14, ECLI:EU:C:2015:476) on which Baigazieva relied and also the treatment of that authority by the Court of Appeal in Ahmed  EWCA Civ 99. The analysis was also consistent with the decision of the Irish High Court in Khalid Lahyani v Minister of Justice and Equality  IEHC 176.
Retained rights of residence reflect an intriguing aspect of EU free movement law and people will no doubt suffer even more in the future because of the uncertainties posed by Brexit. Baigazieva did not claim a history of domestic violence. The outcome in this case may be a sizeable concession by the government but there is a lot more to things than meets the eye because the requirement to commence divorce proceedings at all is rather onerous and inevitably impacts harshly on female victims of domestic violence who may be pregnant at the material time and may have other children to care for in any event. The unavailability of legal aid is another inhibiting feature in such cases.
Overall, it is heartening to learn that the Home Office is being sensible and helpful by softening its stance on retained rights of residence. On the other hand, there are strong indications that the law of free movement took a wrong turning in NA when the CJEU ruled that a pregnant Pakistani victim of domestic violence with two young children must commence divorce proceedings in order to be able to have retained a right of residence. Leading experts condemned the errors made by the CJEU in NA and the court's excessively literal analysis of the aims attributed to EU legislation was dubbed nothing short of "absurd" and "shameful" because it created the colossal anomaly of facilitating the expulsion of victims of domestic violence who, unlike NA, do not have children.
Finally, even in the draft immigration rules known as Appendix EU contained in the EU Settlement Scheme which will become fully operational on 30 March 2019, the concept of the termination of the marriage or civil partnership hinges on "the date on which the order finally terminating the marriage or civil partnership is made by a court". Therefore, in addition to the omission in the retained rights guidance, it seems that the emollient effects of this useful judgment have not found their way into mainstream decision-making just as yet.