In the recent decision of Amos, we find the Court of Appeal commenting on the approach to the European Union law of right found in the Citizens Directive and transposed into the domestic EEA Regulations by Regulation 10(5) and 15(1)(f).
The Court summarised the requirements for permanent residence for a person relying on the retained right of residence following marital breakdown as follows: 1) At all times while residing in this country until their divorce, the spouse of the applicant family member must have been a worker or self-employed or have sufficient resources including comprehensive sickness insurance to avoid unduly burdening the social assistance system; (2) Their marriages had to have lasted at least three years, including one year in this country; (3) The family member must be able to show that they are workers or self-employed persons or have sufficient resources including comprehensive sickness insurance to avoid unduly burdening the social assistance system. The Court reiterated that that separation short of divorce does not affect the right of the non-national spouse under Article 16 of the Directive if both the EEA national and his or her non-national spouse continue to reside in the same Member State.
The submission was made that, where the family member had difficulty in establishing the ongoing exercise of Treaty rights of their estranged partner, the case should not fail without the Secretary of State using her own power to seek evidence as to their activities using information held by other government departments (such as National Insurance contributions). The Court found that the Home Secretary is not bound to make enquiries of other government departments for evidence they may or may not have concerning issues before the Tribunal. However some interesting points were made as to how the appeal might have proceeded by reference to the First-tier Tribunal Procedure Rules if the point had been pursued in the Tribunal below: the Tribunal could "allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal" … even if that evidence would be inadmissible in a court of law; an Applicant could apply under rule 50 for a witness summons requiring her ex-spouse to attend and give evidence as to whether or not he was and had been working, or seek a direction under rule 45 requiring the Secretary of State to provide any information necessary for the determination of her appeal (implying that had the Secretary of State been asked to disclose such records during the appeal process, an appropriate direction might have been made.
You can find out more about this and many other EU law developments at the HJT courses given by Mark Symes in London and Birmingham on 24th May and 24th June.