Evidential Burden Reduced In Retained Rights Cases

04 Jul 2018, 46 mins ago

In accordance with Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006, a non-EU national can apply for a UK Residence Card based on retained rights of residence in the UK if their marriage with an EEA national breaks down.

Until recently, applicants faced difficulties in trying to demonstrate that their former spouse was exercising Treaty Rights at the date of divorce. Dozens of cases have been refused on this ground, with a number of them being taken to Court in an attempt to clarify the applicants’ fragile legal status in the UK.

In the case of Baigazieva vs Secretary of State for the Home Department, in an unusual move, the Secretary of State re-considered his position on this issue prior to the appeal being heard and asked the Court of Appeal to rule in favour of Ms Baigazieva. The Court of Appeal agreed with the Home Secretary and ruled that whilst the appellant’s retained right of residence does not take effect until the point of divorce, there was no support for the proposition that the appellant had to prove that their former spouse remained a qualified person up until that point.

Therefore, the third country national will only be required to show that their former spouse was a qualified person at the point divorce proceedings were initiated, rather than the point of formal divorce itself. This decision appears to take account of the common situation where the date of the decree absolute (formally dissolving the marriage) usually comes much later than the date when the relationship broke down.

Another case reducing the evidential burden under the Immigration (European Economic Area) Regulations 2006 is PM vs The Secretary of State for the Home Department from 16 March 2010. The case revolved around a non-EU national who had sought to obtain Permanent Residence in a situation where their relationship with an EEA national had broken down. The facts were that the couple had lived together in a subsisting marriage for over 3 years and had a child, but later decided to stop living in a common household and remained married to each other only in a social contact.

The initial application for Permanent Residence was refused on the basis that there was insufficient evidence that the non-EEA national had resided in the UK for five years with the EEA national, in accordance with the Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006.

The Court ruled that the non-EEA national should be granted Permanent Residence in the UK because the couple had cohabited as a genuinely married couple for some time, a child was born to the couple and because they maintained social relations in the context of the contact with the child. Although the EEA Regulations (Regulation 2(1)) exclude those who are a party to a marriage of convenience from being recognised as a spouse, and therefore a family member, a marriage of convenience could not arise solely because a married couple did not live together in the same household.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2018