Regulation Requirement For retention of residence Card

[austin100]

Hello Everyone,

I will like Us to Share our thought on the Requirement for retention of Residence Card where a marriage ended in Divorce , As UKBA is bridging the EU regulation 10 (5) 2006 & Chapter guide for Caseworker.

EU regulation 10 (5) 2006 States that:
“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 paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the conditions in this paragraph if—

(a)he was a family member of a qualified person when the qualified person died; .
(b)he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and .
(c)he satisfies the condition in paragraph (6). .
(3) A person satisfies the conditions in this paragraph if—

(a)he is the direct descendant of— .
(i)a qualified person who has died; .
(ii)a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or .
(iii)the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and .
(b)he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course. .
(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).

(5) A person satisfies the conditions in this paragraph if—

(a)he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified 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 .
(d)either— .
(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; .
(ii)the former spouse or civil partner of the qualified person has custody of a child of the qualified person; .
(iii)the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or .
(iv)the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting. .
(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). .(7) In this regulation, “educational course” means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers(1).

(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.

And Chapter 5 (5.4.2) guide for caseworker state that :

5.4.2 Retention of a right of residence following divorce or annulment of marriage / dissolution of civil partnership
Regulation 10 (5) of the 2006 Regulations makes provision for the following:
If the marriage or civil partnership has lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during the duration of the marriage or civil partnership, then the third country national retains a right of residence if:
(a) they are pursuing activity which would make them a worker or a self-employed person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the United Kingdom who is either a worker, self-employed, or is a self-sufficient person.
If the non-EEA national is a student then they will not qualify, unless they are a student with sufficient resources to be self-sufficient.

From View of the Regulation The case Worker are bridgingthe regulation by requesting for the EEA national Treaty Right as at the time of Divorce.

[ravii]

United kingdom is not a jungle but sorry to say that UKBA is a lion?so lion can do any thing in the jungle.This is really a bad practice to ask treaty rights at the time of divorce,who knows the feelings of non EEA national when he/she begging for these papers.....Lion don't carry,Lion just wants to hunt(refused).

[austin100]

That why this regulation should be brought to the attention of the case worker when applying.
And in such cases been reported to European Commission. They can take up such cases .

[Obie]

The Regulation itself is the problem. As i said before, the regulation require the non-EEA national to be residing in the UK in accordance with the regulation at the time of divorce. This is why they require family members to show their EEA nation ex was exercising treaty rights at time of divorce,in ordet for them to fulfill that criteria.

[austin100]

Well it requires the Non-EEA to be residing in the uk, which is form of Pursuing Employment, self-employed or Education .
But, but did not state the EEA treaty right . it is basically a bridge of the EU Regulation

[Obie]

I sort of agree that the regulation breaches EU law rights, but the meaning of the Regulations as interpreted by the UK higher courts, is exactly as i expressed above. If it had stated they should be living in the UK in accordance with the regulation after divorce, then your views would have been correct.

Furthermore, it will be odd if the regulation is repeating itself. What you suggested is a seperate provision, provided for in Regulation 10(6). It cannot be right regulation 10(5)(b) and 10(6) (a) are intended to have the same meaning.

It is envisaged that the question of Regulation 10(6)(a) only comes in, once the person has shown they qualify under Regulation 10(5)(b)

Therefore as stated, the non-EEA can only show qualification under the Regulation, if they can show that on the date the divorce was finalised, they were the family member of an EEA national, who is a qualified person. This view was expressed in Amos, which i cited in the other post we had this discussion.

Also, by virtue of Diatta, you cannot require the non- EEA national to be working to benefit from treaty rights, when their marriage has not been terminated by the authorities. Therefore the regulation could only mean that, they should be a family member of a qualified person, on the date of the divorce. This is the only way they can be living in the UK in accordance with the regulation at the time of divorce.

After the divorce, they do not need to be. Regulation 10(6)(A) or (b) takes effect.

I am not saying it is right, but that is the UK law and its interpretation. We can only hope that this issue will make its way to the European Courts of Justice one day.

[austin100]

Thanks Obie, Well the regulation 10 (5)(B) state that the parties should have

resided in Uk for at least for a period of one year, which could have been

cohabiting out of the three years , which is any period within the three years , then 10 (5) (C) refers you to 10 (6)

paragraph . What amuses me about it is that, it does not state that it

should be inform of EEA exercising Treaty right. Which means 10 (6) is

connected to 10 (5)

Obie, I think this regulation is straight forward . The Requirement are simple, UKBA are in bridge.

I shall check out the case of Amos & Diatta . Then I will give my opinion on it.

[Obie]

You seem to be quoting 10(5) (d) as opposed to (b).

Read 10(5)(b) properly, surely the EEA draftsman for the Regulations could not have meant 5b and c having the same meaning.

It will be odd if 10(5) (b) and (c) meant the same.

[austin100]

Dear Obie,

I have gone through the case of Amos which was in line of 5 years residence and exercising treaty , which i believe is regarding to PR.

The court then refered to Diata case which states that :

"The Court held that the appellants should not be required to show that their former partners were working for a continuous period of 5 years prior to their applications in order to establish a right of residence. It was held that the case of OA (Retained Rights of Residence) was incorrectly decided. The Court stated that ‘If, immediately before divorce, the requirements of Article 7.2 are satisfied, the non-national must then satisfy the requirements of Article 13.2’. Therefore, in order to qualify, the applicant must show that prior to the initiation of divorce (or annulment or termination of registered partnership), the marriage/registered partnership lasted for 3 years one of which was spent in the UK. This is subject to Article 13.2 which provides that the applicant can show that he or she is a worker, self-employed or that he or she has sufficient resources and that they will not become a burden on the host Member State."

That means the UKBA case Worker are in Bridge of the Interpretation of the EU Law.

[austin100]

Thanks Obie, The 10 5 (b) is talking about the Non-EEA.

[Obie]

Yes i agree it is referring to the non-EEA national.

That the non-EEA national should be residing in the UK in accordance with the EEA regulations, as a family member of a qualified EEA national, was not in dispute on the judgement in Amos.

This is what the court says about that in Paragraph 30, which is what i believe is relevant to this debate.

Whatever we think, we have to go by the higer courts interpretation, unless it is overturned by a higher court.

30. The Regulations are consistent with these propositions. Regulation 10(5) provides that a "family member who has retained the right of residence" must in a case such as the present appeals satisfy the following conditions:

(a) His or her divorce from the EEA national.

(b) He or she was residing in the UK in accordance with the Regulations at the date of the divorce. He or she will have been so residing if regulation 14 applied, i.e. if the EEA national spouse was a "qualified person", i.e., for present purposes, a worker or self-employed person (as to which see the definitions in regulations 2 and 6).

(c) He or she is a worker or self-employed person, and therefore satisfies paragraph (6).

(d) 3 years' marriage, including at least one year's residence in the UK.

That it what i was referring to.

I believe if you had used the directive, directly as an argument that the requirement is unlawful, it would have been a much stronger argument.

I believe this case may be of help.