EEA client impact   if any   of   matrimonial court ruling

client   has advised that court rukling was that she should continue to   live   in uk following divorce ( she   has custody) any thoughts   on ways   in which this could   be   used to her advantage re Right to Reside)

Thanjks   in advance

What are the nationalities of the ex-husband and the child? How old is the child? What was dad’s RTR before the divorce? Did they acquire permanent RTR before divorce? How long were they married and how much of tha was in the UK?

The Regulations don’t mirror the Directive properly. Basically, under the Directive, assuming the ex had a right to reside, then the right to reside of the family member is not affected. However, if she does not already have a perm RTR, she will need to start complying with article 7 of the Directive in her own right to get it.

She may also have a derivative RTR.

The child   is 5, mother, has Polish nationality   has   lived and   worked   in GB ffrom 2007 -2012,

I’m unsure   of the   nationality   of the father the child has British nationality

Thanks for your reply

Sorry to hijack the thread.  Matthew, is there a definitive answer to the issue you mention about transposition of Articles 12 and 13 of the Directive?  Has a court or UT in any jurisdiction pronounced on this to your knowledge?  I have always wondered about this.

The Directive says:

[divorce, death departure] ... 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).

The immigration (EEA) Regs are silent about this.  That is presumably because the UK position is that the proper way to interpret Articles 12 and 13 is that EEA nationals must have their own regular Article 7 R2R until such time as they acquire a permanent R2R.  The alternative view is that Articles 12 and 13 mean the person retains the R2R they had immediately before death/divorce/departure but remains forever in limbo and will only have the peace of mind associated with a permanent R2R if they bring themselves within Article 7(1) for the required period.

It is a strange one because I cannot really see what value either interpretation adds to the person’s existing rights:

- on the one hand, if your continuing R2R requires that you must be covered by Article 7(1), what does Article 12.1 or 13.1 achieve in practice?  Couldn’t you just do an Article 7 thing off your own bat anyway?
- on the other hand, if you have an indefinite limbo R2R following death/divorce/departure, in what tangible way does a permanent R2R improve your situation since it seems you already have an R2R that you can never lose?

Mods, if this belongs in a new thread please feel free to detach it from this one.  I would realy like to know if the courts have nailed this.

PS: OP it seems your client may have a permanent R2R, did she have A8 certificate for pre-2009 work (as marriage to a Brit curiously did not confer automatic exemption)?

HB Anorak - 19 March 2015 07:02 PM

Sorry to hijack the thread.  Matthew, is there a definitive answer to the issue you mention about transposition of Articles 12 and 13 of the Directive?  Has a court or UT in any jurisdiction pronounced on this to your knowledge?  I have always wondered about this.

Sorry, I didn’t make that point clearly enough. As far as I know, there is no judicial authority on this point.

I always understood articles 12 and 13 to say that the family member, so long as they are themselves Union citizens and that the deceased / ex-partner had a right to reside, retains a right to reside without needing to satisfy any other criteria. This right to reside would not count towards the five years. (Other such rights exist, e.g., the derivative right to reside n article 10 of regulation 492/2011.) The reason this retained family member status does not count towards five years even though it is residence in accordance with the Directive is because of the express derogation in the articles.

This interpretation is supported by the fact that additional conditions are imposed on family members who are not Union citizens, especially in article 13. It’s very strange that the UK regulations recognise the rights of third country national ex-spouses, but do not for Union citizen ex-spouses. That can’t be the correct interpretation.

I suppose you could easily lose the right to reside by leaving the UK for any period of time (as opposed to two years for losing the permanent right to reside).

TJL: and if the child is at primary school, mum will have the derivative RTR under Teixeira.

I’m reviving this thread because there is now UT authority on the interpretation of Article 13(1) (and by extension the identically worded Article 12(1)): treatment of “stranded” family members who are themselves EEA nationals.

UT Judge Markus has opted for the stricter interpretation: in order to retain their right of residence, they must satisfy Article 7 in their own right as a condition of their continuing R2R immediately and not merely as a condition of the right to acquire a perment R2R.

A bit tough on a pre-school child it seems to me, but there it is.

HB Anorak - 04 June 2018 11:05 AM

I’m reviving this thread because there is now UT authority on the interpretation of Article 13(1) (and by extension the identically worded Article 12(1)): treatment of “stranded” family members who are themselves EEA nationals.

UT Judge Markus has opted for the stricter interpretation: in order to retain their right of residence, they must satisfy Article 7 in their own right as a condition of their continuing R2R immediately and not merely as a condition of the right to acquire a perment R2R.

A bit tough on a pre-school child it seems to me, but there it is.

but surely that can be distinguished.  in that case the residence in Italy was BEFORE the UK joined the EU, the couple had come back to the UK before the UK joined the EU.  and the husband in question had left the UK and then come back ..... the wife wasn’t exercising any treat rights when we joined the EU and hadn’t done so at any time during the marriage, as i read it…. i don’t think this would have been the decision had the facts been more analogous to OP’s…

and in OP’s case there are other grounds (being the parent of a british citizen child, and so forth).

Decision is in two parts.  First it distinguishes the appeal from the Surinder Singh line of cases because the UK citizens residence in the EU was pre-UK accession.  But the key extract is from para 27 onwards, where she says that even if she is wrong about the Surinder Singh issue, Article 13.1 would not assist the appellant.  She then spends until paragraph 43 developing the point.

I suppose you could say it’s obiter because the appeal fails at the first hurdle on the Surinder Singh point, but it is very thorough and extensive obiter.

P.S. These are coming thick and fast - the new decision that Stuart has linked to in this thread considers the same issue at paras 13 to 21, where it seems all parties agreed that the stricter interpretation of Articles 12.1 and 13.1 is the correct one.  The case also name-checks the one by Judge Markus and notes that it reaches the same conclusion.