Definition :- A brief or prolonged period of time over which the Upper Tribunal or Secretary of State get the law, particularly EEA law, horribly wrong.
The Secretary of State’s overdue concession:
It took the Secretary of State a very long time to accept the very obvious: “….. that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.” This is what the Court of Appeal’s recently published judgment of last week in Baigazieva v Secretary of State for the Home Department  EWCA Civ 1088 (20 April 2018) reflects.
Setting aside issues of whether Regulation 10( 5) faithfully transposes the 2004 parent Directive, surely pure common sense dictates that not all divorces end with the parties still on friendly or even speaking terms. Obtaining documents such as payslips and bank statement from an ex-spouse in such circumstances is very difficult. How then did the drafters of Regulation 10(5) risk losing touch with reality and manage to slip in onerous requirements, seemingly so without any inkling as to how difficult or near impossible they made it for some divorced non EEA family members to show that a former EEA national spouse was working, self-employed or was sufficient in the UK at the date of divorce? Not only that, but the relevant offending provisions of Regulation 10(5) appear to have remained in their original format for well over a decade from when the 2006 regulations came into force: they even survived the hasty abandonment of the 2006 regulations, ushering in the litigation-provoking 2016 EEA Regulations on 1 February 2017.
The previous problem:
The problems faced by non- EEA family members who have divorced their EEA spouse are set out in a recent blog post, Non EEA family members and retained rights of residence : Pitfalls faced by divorced applicants and how to overcome them, which opens as follows:
“What usually proves problematic for non EEA family members seeking to assert their rights following divorce and upon application, is that having regard to the EEA Regulations and current accompanying Home Office Guidance, in addition to other evidence, they will be required to provide documentation relating to the EEA National Sponsors’ identity and nationality as well as evidence that the EEA national was exercising free movement rights at the time that the parties divorced. An affected applicant’s inability to provide the EEA national’s valid passport or nationality identity card or evidence of the EEA national’s employment at the relevant date of divorce might result in a refusal of that application……………
Documents required for retained rights of residence applications:
Relevant Home Office Guidance Free movement rights: retained rights of residence provides that the documents/evidence that must be provided by family members of European Economic Area (EEA) nationals who are applying for a document for a retained right of residence as per Regulation 10(5) is as follows:
of their identity and nationality through a:- valid EEA national ID card or passport issued by an EEA state if they are an EEA national; -valid passport if they are a non-EEA national
of the identity and nationality of the EEA national sponsor, which must be a valid EEA national identity card or passport issued by an EEA state
the EEA national was exercising free movement rights at the time the relationship was terminated or had permanent residence”
The Court of Appeal’s decision addresses the above problems, so far as they relate to provision of evidence of exercise of treaty rights by the ex EEA national spouse.
Couldn’t the Secretary of State have resolved issues much sooner?
The Court of Appeal in Baigazieva observed that whether having regard to the revoked 2006 EEA Regulations or the current 2016 Regs, their judgement on the interpretation of Regulation 10(5) is to the same effect .
The Upper Tribunal decision in Sala occasioned a judicial moment when the Upper Tribunal tragically went off course: In Sala (EFMs: Right of Appeal)  UKUT 411 ,the Upper Tribunal reached a conclusion that there was no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. This was by reference to the 2006 EEA Regulations. The affected individual could challenge the decision of the Secretary of State by way of Judicial Review. About a year later, the Court of Appeal stepped in so as to bring infuse some sense, at least where the 2006 Regulations were concerned. The Court of Appeal in Khan v Secretary of State for the Home Department & Anor  EWCA Civ 1755 (09 November 2017), overturned Sala concluding that, the Secretary of State’s decision to refuse Mr Khan a residence card, was an EEA decision and could therefore be appealed in the ordinary way to the First Tier Tribunal. The Court of Appeal judgment in Khan however does not deal with the 2016 Regulations. The new 2016 Regulations make it clear that an EEA decision does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member).
The Upper Tribunal decision in Sala was short-lived, however the Secretary of State has time and time again published Policy Guidance seeking to uphold the burdensome evidential requirements of Regulation 10(5) requiring that an applicant show the EEA national was exercising free movement rights at the time the relationship was terminated, ie when the decree absolute was granted. In turn, Tribunal Judges have over the years labored, it appears now wrongly, to interpret the Regulation as drafted, however with negative results for Appellants unable to provide the specified documentation required to establish a right of residence following divorce.
In Baigazieva, the Secretary of State acknowledged that the issue regarding the correct interpretation of Regulation 10(5) had arisen in several proceedings in recent years without being definitively resolved. Surely, however the Secretary of State had it in her power to properly reflect and amend her Policy Guidance prior to this case reaching the Court of Appeal? Just how many application or appeals have failed over the years simply on the basis of the provisions of Regulation 10(5) as currently drafted along with its accompanying policy guidance?
As noted by the Court of Appeal in Baigazieva, the parties had agreed a consent order. The Secretary of State had already indicated in a letter dated 26 February 2018 that he did not wish to contest the appeal. The Court of Appeal in turn invited the Secretary of State to file a brief position statement explaining why he was willing to concede the appeal. Ultimately, the Secretary of State appears to have had any “ easy -ride”: all he did was provide long-winded submissions seeking to deftly manoeuvre his way into eventually justifying the previously made concession. Whatever was put forward in submissions on behalf of the Secretary of State, having regard however to the 2004 Parent Directive, it is arguable that Regulation10(5) does not faithfully transpose Article 13(2) of the Directive.
A relevant question however is this: would the Secretary of State have made clear and public his position on Regulation 10(5), ie via his policy guidance, had it not been for the Court of Appeal’s express invitation and the resultant decision to publish its judgement?
Since both the Secretary of State and Court of Appeal agreed that it is not necessary for the court to make a further reference to the CJEU for a preliminary ruling, it should have been obvious, much earlier, at some point that relevant Home Office policy Guidance needed to be amended to remove the requirement that evidence of exercise of treaty rights by the ex EEA spouse be shown until the divorce i.e when the decree absolute was issued.
What the Secretary of State should do next:
Following the Court of Appeal’s judgment, the Secretary of State is expected to undertake the following action:
Amend her Policy Guidance : Free movement rights: retained rights of residence
Amend her Policy Guidance : Processes and procedures for EEA documentation applications ;