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Right to reside - non-EU national spouse - EU National receiving Carers Allowance

Rod
forum member

Welfare Benefits, Paddington Law Centre

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Total Posts: 5

Joined: 10 November 2011

Hi,

I would be grateful for your thoughts as to whether the non-EU national retains a right to reside on the following.
My client is a non-EU national who was married to an EU national until their divorce was finalised in Mar 2021. My client claimed UC and was refused on the basis that he did not have a right to reside.
My client entered the UK with his wife and children in either Oct 2016 or early 2017. He was issued with a residence card in August 2017 which was valid until August 2022. He found work, and was employed. He left that work and found another within a month of leaving his previous employment.
Divorce proceedings was initiated possibly in 2017 and my client lived separately from his wife and children.
As a result of the pandemic, my client was made redundant in May 2021 and he then claimed the UC. He had pre-settled status at that time.
My client’s wife, prior to the divorce, worked until the end of July 2020 and then became a carer for her daughter.

I understand, from the DWP, that reg. 10(5) of the Immigration (European Economic Area) Regulations 2016, was amended on 15/08/2019 so that initiation of proceedings for the termination of the marriage is thereafter the date from which retention of the right to reside ends.

I would be grateful for some guidance on this matter.

Elliot Kent
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Shelter

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Total Posts: 3117

Joined: 14 July 2014

Insofar as your client remained married to his ex-wife and she remained a qualified person, he continued to have a right to reside as her family member notwithstanding the divorce proceedings.

The effect of the provisions for retention of status mean that your client was potentially able to continue to have a right to reside beyond the actual termination of the marriage. In order to benefit from these provisions, your client must satisfy one of the requirements from reg 10(5)(d), must meet reg 10(6) and must per reg 10(5)(a), have “ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on [the initiation of proceedings for the termination] of the marriage or civil partnership of A”.

The amendments relied on by the DWP are a result of the Court of Appeal’s decision in Baigazieva v SSHD [2018] EWCA Civ 1088. Unfortunately, the DWP in your case appear to have inverted the effect of that decision. A person does not lose their ability to rely on a right to reside as a spouse until the actual point of termination of the marriage. The point of Baigazieva is that the question from reg 10(5)(a) of whether the person was residing in the UK as a spouse of a qualified person is to be judged by reference to the point of initiation of divorce proceedings rather than their termination. The case was dealing with the problem which arose where the applicant’s spouse would have disappeared by the time the divorce was finalised and it was therefore impossible to establish whether or not they were a qualified person at that point in time.

See further the explanatory notes to SI 2019/1155 “Regulation 2(7) amends regulation 10 of the 2016 Regulations to give effect to the judgment in Baigazieva v SSHD [2018] EWCA Civ 1088 by making it clear that, in the case of family members who have retained the right of residence, a family member who was previously married to, or the civil partner of, an EEA national need only demonstrate that that EEA national was a qualified person until the time immediately prior to the initiation of proceedings for the termination of the marriage or the civil partnership.”

Your client probably satisfies reg 10(6) work history. The unanswered question from your post is whether he satisfies one of the criteria under reg 10(5)(d). It is not obvious that any of 10(5)(d)(ii)-(iv) would apply. Did the marriage last at least 3 years and at least 1 year in the UK before the start of divorce proceedings as under 10(5)(d)(i)?