Just when we thought we had seen the back of the 2006 EEA Regulations, it appears that the Court of Appeal is not quite yet done with their interpretation: the Court of Appeal is still having to grapple with arguments put forward that the UK Government did not correctly implement the parent Citizen’s Directive via the 2006 Regulations.
In Ahmed v The Secretary of State for the Home Department  EWCA Civ 99, the issue which arose was the correct interpretation of Regulation 10(5) and 10(6) of the 2006 EEA Regulations.
Mr Ahmed sought to establish an independent right to reside in the UK as the former spouse of an EU national. He applied for an EEA residence card in January 2014. He only received a certificate of application in September 2014. At the date of the divorce, which became absolute on 19 June 2014, Mr Ahmed’s wife had been working in the UK and the marriage lasted for at least three years.
The Secretary of State refused to issue him with an EEA residence card. Upon appeal, the Upper Tribunal found that Mr Ahmed only became a worker on 6 October 2014 and that he was not a worker at the date of his divorce. Thus, it held, he had failed to satisfy Regulation 10(6).
The appeal then came before the Court of Appeal.
It was argued on behalf of Mr Ahmed that Article 13(2) of Directive 2004/38 which Regulation 10 is designed to implement, does not require him to have been a worker on 19 June 2014 and so Regulation 10(6) cannot be read as having that effect. A purposive interpretation of the Directive was put forward, ie, that the requirements of Article 13 should be interpreted in line with Recital (15) of the Directive, which states that one of the objects of the Directive is to protect the derived rights of family members of EU nationals if, for example, there is a divorce. On that basis it was argued that the Regulations could not, compatibly with EU law, require Mr Ahmed to be a worker at the date of his decree absolute. It was contended that the second subparagraph of Article 13(2) was addressing the situation where a non-EU national is applying for permanent residence, not the present situation where he is applying simply for a retained right to reside following divorce.
Alternatively, it was contended that the Home Office prevented Mr Ahmed from being a worker at any earlier date than October 2014 by its delay in sending him a Certificate of Application, stating he had applied for an EEA residence card.
THE OLD AND THE NEW
Regulation 10 still remains the provision to have regard to when considering whether a family member has retained a right of residence. Apart from some tidying up in drafting, Regulation 10 has been replicated in the 2016 Regulations.
Regulation 10(5) and 10(6)- Previous Regulations:
“Family member who has retained the right of residence”
10.—(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
(5) A person satisfies the conditions in this paragraph if—
(a) he ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence on the termination of the marriage or civil partnership of that person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
6) The condition in this paragraph is that the person–
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a)”
Regulation 10(5) and 10(6)- Current Regulations :
“Family member who has retained the right of residence”This section has no associated Explanatory Memorandum
10. (1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraphs (8) and (9), a person who satisfies a condition in paragraph (2), (3), (4) or (5).
(5) The condition in this paragraph is that the person (“A”)—
(a)ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on the termination of the marriage or civil partnership of A;
(b)was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c)satisfies the condition in paragraph (6); and
(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(6)The condition in this paragraph is that the person—
(a)is not an EEA national but would, if the person were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b)is the family member of a person who falls within paragraph (a)”.
The Parent Directive 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:
(a) 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
(b) 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
(c) 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
(d) 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 subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4). Such family members shall retain their right of residence exclusively on personal basis”.
COURT OF APPEAL’S CONSIDERATIONS AND CONCLUSIONS
In relation to the “defective implementation issue”, where the argument on behalf of Mr Ahmed was that there was no Directive requirement to satisfy the Regulation 10(6) conditions at the date of the divorce, the Court of Appeal agreed with the arguments put forward on behalf of the Secretary of State.
The Court agreed that it was clear from the language, context and purpose of Article 13(2), and from CJEU authority, that, to retain a right to reside under that provision a non-EU national must satisfy one of the requirements in (a) to (d) of the first subparagraph and be a worker, self-employed person or self-sufficient person in accordance with the second paragraph.
The interpretation of Article 13(2) put forward on behalf of Mr Ahmed would place non-EU nationals in a more favourable position than EU nationals. It would mean that an EU national had to be a worker, self-employed person, self-sufficient person or student in order to enjoy a right to reside in another member state, while a non-EU national could retain a right to reside following divorce without satisfying any such requirement.
The purposive interpretation of Article 13(2) by reference to Recital (15) which explains that an object of the Directive is the promotion of family life and human dignity, cannot result in the grant of a retained right to reside where this is inconsistent with the terms of the operative provisions of the Directive.
It is not a tenable construction of Article 13 that the second subparagraph is dealing only with conditions for acquiring permanent residence. It would be absurd if a person has to satisfy the requirement to be a worker, self-employed, self-sufficient or a student only when he applies for that more privileged status.
The Court of Appeal concluded that Regulation 10(6) correctly implements the Directive and rejected the appeal on this issue.
The “Home Office delay issue”, was whether the Home Office’s failure to issue a certification of application prevented Mr Ahmed from working. It was submitted on his behalf that in the real world that was the position. No employer would have accepted him.
The Court of Appeal considered that the arguments on behalf of Mr Ahmed had exaggerated the effect of not having a certificate of application or EEA residence card. It was considered that it was always open to an employer to make an online application to the employer checking service for a verification notice. Further, there was no finding that in the period from June to September 2014, Mr Ahmed was even looking for a job. This was considered sufficient for the Court to reject Mr Ahmed’s appeal on this issue.
Mr Ahmed’s appeal was dismissed and the Court of Appeal declined to refer the question of the effect of the second subparagraph of Article 13(2) of the Directive to the CJEU, as it was not considered that there was sufficient lack of clarity as to its meaning to justify this course.
MR AHMED’S PROBLEM AND CERTIFICATES OF APPLICATION
Regulations 10(5) and 10(6) of the 2016 Regulations replicate Regulation 10 under the previous regulations. The Court of Appeal’s decision therefore has current impact upon applications from former spouses of EEA nationals seeking to place reliance on retention of rights provisions even under the 2016 regulations.
The problem faced by Mr Ahmed affects former spouses caught by delays on the part of the Home Office in issuing a Certificate of Application.
A family member might have held a 5year residence card which has since expired. Following finalisation of the divorce, armed only with a Decree Absolute and an expired residence card, and in the absence of a Certificate of Application, how is such a person to convince an employer to give him a job so that he may be considered to be exercising treaty rights at the date of the divorce?
What is a Certificate of Application?
A certificate of application (COA) is a document confirming the holder has submitted an application for one of the following documents under the regulations:
derivative residence card
The COA does not confirm that the holder has a right of residence in the UK:
a ‘short’ COA confirms receipt of the holder’s application – it does not confirm any right to work for the applicant.
a ‘long’ COA confirms receipt of the holder’s application and confirms the applicant’s ability to take employment in the UK whilst their application is outstanding.
In Mr Ahmed’s case, he would have been entitled to the long form of the COA provided he submitted the required documentation in support of the application. Following the coming into force of the 2016 Regulations, relevant guidance states that anyone who applies for a residence card because they retain a right of residence under regulation 10 must submit the following applicable evidence:
a valid passport
a valid national ID card or passport for the EEA national
evidence of termination of relationship (for example, decree absolute, final order of dissolution of a civil partnership, death certificate) and either:-evidence the EEA national exercised free movement rights in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student at the date of the termination -evidence the EEA national had permanent residence in the UK at the date of the termination
The facts themselves in Mr Ahmed’s case appear to suggest an attempt at a tactful move having regard to the point of at which the residence card was applied for so as to enable issue of a Certificate of Application prior to finalisation of divorce proceedings. Usually an application for a residence card as a former spouse is made after the Decree Absolute is finalised. In Mr Ahmed’s case, he applied for an EEA residence card in January 2014, prior to finalization of the divorce. The decree absolute became final on 19 June 2014. Mr Ahmed however only received a certificate of application in September 2014. The real problem in this case is that it took the Home Office nearly 6months to issue a Certificate of Application. The parent Directive has always provided as follows :
Issue of residence cards
The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately…..”
In line with regulation 18(3) of the 2016 regulations, on receipt of an application for a residence card and the documents that are required to accompany that application, a COA must be issued ‘immediately’.
The problem, with these new short-form judgments in the Court of Appeal is that they simply do not delve deep enough in output in relation to the fuller facts of the case. Short- form judgments may leave more questions than they answer. It is only right at the end of the Court of Appeal judgement that is possible to gather that AT Accessories Ltd applied in September 2014 to the employer checking service for a verification notice presumably for Mr Ahmed. Had the Certificate of Application been issued by April or May 2014 for example, it might be that Mr Ahmed might have sourced employment and been working by the time of finalisation of divorce proceedings and prior to a decision to refuse being made by the Home office. This may be speculative in regards to Mr Ahmed’s case, however it is undeniable that the practices of the home office as regards issue of a Certificate of Application inevitably affect whether and how soon an applicant is able to show that they are working at the time of the divorce.
In practice, it appears that the Home Office do not issue Certificates of Application,” immediately”. This is because in line with the Immigration (Provision of Physical Data) Regulations 2006 (as amended), from 6 April 2015 any non-EEA national applying for a residence card, derivative residence card or permanent residence card must give their biometric information to be issued a document confirming their right to reside in the UK under EU law. The application will only be considered valid at the point at which the applicant successfully enrols their biometric information. If a non-EEA national does not give their biometric information within the specified timescale, the home office will reject their application as invalid.
Applicants who fail to enrol their biometric information will not have made a valid application and will have no entitlement to be issued with a Certificate of Application.
Home Office police documentation, Processes and procedures for EEA documentation applications, Version 5.0, 1 February 2017 states:
“Applicants have 15 days to enrol their biometrics. This means that the earliest date in which the applicant will be issued a COA (providing they have enrolled their biometrics) will be at around day 17”.
The problem however is that the Home Office usually delay in sending out letters requiring enrolment of biometrics. It might therefore take a whole lot longer that 17days to have a Certificate of Application issued.
The Court of Appeal judgement contemplates a situation where, having sourced and been offered a job, it is always open to an employer to make an online application to the employer checking service for a verification notice. In practice however, where the check is made prior to sending out of a letter for biometrics enrolment and in the absence of biometrics being enrolled, the Home Office have been known on occasion to indicate to the employer that the individual is not permitted to work. The solution suggested by the Court of Appeal though seemingly appropriate, might not work in practice in some cases.