Hi Obie/ Wise and anyone with knowledge on this issue.
Below is the reply from europe advice regarding friends situation, i have advised her that retention is not possible however reply from European help states otherwise can you please read and comment if thats correct.
Dear Madam:
Thank you for getting in touch with Your Europe Advice.
Your question relates to the retention of the right of residence under EU law (under Directive 2004/38), in circumstances where you are a third country citizen and where your ex-spouse is an EU citizen. You married in 2010, and divorced in the summer of 2015.
You further indicate that you have had a child from this marriage, and that your child is a UK citizen owing to the fact that your ex-husband had permanent residence in the UK at the time that your child was born in the UK.
Accordingly, it appears that the divorce was pronounced at a time when your spouse was a permanent resident in the UK. The divorce has produced an agreement with your ex-spouse according to which you have custody of your child.
You wonder whether you may qualify for the retention of your right of residence in the UK, under Article 13 Directive 2004/38?
The short answer to your query is that you appear to have retained the right of residence in the UK by virtue of Directive 2004/38.
However, you have also been advised that you may not qualify for the retention of your right of residence, given that you were not physically present in the UK at the time of the divorce.
Before answering your query, let us examine what the relevant provision lays down (article 13 Directive 2004/38):
Article 13 provides that you retain the right of residence, where the marriage is dissolved where you can establish the following conditions:
i) "By agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children"
It appears that you are able to satisfy the above cited condition, given that you have custody of your child by express agreement with your ex-spouse.
ii) There is another condition however.
The UK has consistently insisted that in order for you to retain your right of residence in the UK, you must also prove that at the time of the divorce decree absolute, both you and your ex-husband must prove that you were exercising your rights of residence in the UK. In support of this, the UK points to the last paragraph of Article 13 paragraph 2 read in conjunction with Article 14 paragraph 2 Directive 2004/38.
Again, in your case, it appears that both you and your ex-husband are able to prove this condition.
You are a worker in the UK. You indicate that you were on maternity leave at the time that your divorce was pronounced. As far as your spouse is concerned, you mentioned that he is a permanent resident in the UK. This is proven by the fact for example, that your child was issued with a UK passport. You also mention that your ex-husband is a worker and that he was working at the time your divorce was pronounced.
Accordingly, we reiterate that it looks like you are able to prove that both you and your ex-spouse were exercising your respective rights of residence in the UK at the time of the divorce decree absolute being handed down.
Thus, it appears that you are able to prove that you have retained your right of residence, following your divorce from your ex-spouse.
iii) The question that you ask in your post has actually been asked by the Court of Appeal to the Court of Justice NA (PAKISTAN) - and - The Secretary of State for the Home Department - and - The Aire Centre, namely whether it is a requirement under Article 13 that the EU citizen must be physically present in the UK at the precise time when the divorce decree is pronounced.
The referral will take time to be heard, with potentially another 12 months before we get a final Judgment from the Court of Justice.
Having said that, we must also disagree with the strand of opinion which interprets Article 13 to prescribe that the EU citizen or the family member must be physically present in the UK at the precise time when the divorce decree is pronounced:
The simple reason for this is that nothing in the wording of the provision can allow such an interpretation. There is nothing under Article 13 which states that the EU citizen must be physically present in the host member state at the time of the divorce decree.
We must also point to the recent case Kuldip Singh,Denzel Njume, Khaled Aly v Minister for Justice and Equality, case C 218/14;
In the above case, the Court of Justice held:
Provided the divorce decree is brought whilst the EU citizen is resident in the Host Member State, the right of residence is retained subject to meeting the conditions under the 2nd paragraph of Article 13.
Nowhere did the Court of Justice prescribe that the EU citizen must be physically present in the host member state.
Accordingly, the retention of the right of residence requires the applicant to prove the exercise of rights of residence by the EU Sponsor in the Host Member State.
However, the key moment to assess whether the conditions under the second paragraph of Article 13 are met is when the divorce process is initiated, NOT when the marriage is dissolved.
Article 13 paragraph 2 (a) in turn is transposed under UK law in the form of Regulation 10 (5) of the EEA Regulations 2006;(
http://www.legislation.gov.uk/uksi/2006 ... on/10/made).
