In this case, the Court of Appeal (Lord Dyson MR, Sullivan & Sharp LJJ) referred to the CJEU the question whether, in order to retain a right of residence under article 13(2) of Directive 2004/38/EC, a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member State at the time of their divorce? An application for permanent residence – on the basis that upon divorce the applicant had retained a right of residence under regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 – made by Nazia Ahmed (NA, the appellant) in September 2009 was refused in March 2010. This was because although NA demonstrated that she had worked as a self-employed carer between 2007 and June 2011, she had failed to show that her former husband was exercising Treaty rights in the UK at the time of the divorce.
The Upper Tribunal ( UKUT 89 (IAC), Lang J & Judge Storey) found that NA did not have a retained right of residence under article 13(2) but that she did have a right of residence under both article 20 of the Treaty applying Case C-34/09 Zambrano  QB 265 principles and article 12 of Regulation 1612/68. The tribunal also allowed her appeal on article 8 ECHR. The Home Secretary’s appeal against the tribunal’s decision that NA had a right of residence on article 20 and article 12 grounds has been adjourned but she has not appealed against the tribunal’s decision to allow NA’s appeal on article 8 ECHR.
NA, who appeals the finding that she did not have a retained right of residence under article 13(2), is a citizen of Pakistan. She married a German national, Khurshid Ahmed (KA), in September 2003 and in March 2004 they moved to the UK. But their marriage was unstable and NA suffered numerous incidents of domestic violence. KA left the matrimonial home in October 2006 after assaulting NA and in December 2006 he left the UK. KA was either a worker or self-employed during his time in the UK. The couple’s daughters, MA and IA, were both born in the UK in November 2005 and February 2007, respectively. KA purported to divorce NA by a talaq issued in Karachi in March 2007. In September 2008, NA instituted divorce proceedings in the UK, and the decree absolute was issued in August 2009 and she was granted custody of the two children who are both German nationals.
To qualify as a family member who had retained the right of residence in the UK under national law, i.e. regulation 10 transposing article 13 of the Directive into domestic law, NA had to show that on her divorce she had:
ceased to be a family member of an EEA national who was in the UK as a jobseeker, worker, self employed or self sufficient person or student.
The tribunal decided that it was bound by Amos  EWCA Civ 552. Accordingly, to retain a right of residence under article 13(2) the third country national’s ex-spouse needed to be in the UK exercising treaty rights at the time of the divorce. The tribunal said that it would have arrived at the same conclusion even if Amos was not binding. For the tribunal, the second subparagraph of article 13(2) and the decision in Case 6-267/83 Diatta v Land Berlin  2 CMLR 164 supported the view that it is required that the ex-spouse must be exercising treaty rights in the UK at the date of the divorce. NA failed to show this whether her divorce occurred in March 2007 (the talaq) or August 2009 (the decree absolute) because either date was after KA’s departure from the UK in December 2006.
The Court of Appeal
In the Court of Appeal, the parties agreed that NA’s divorce decree absolute was issued in August 2009 and that she met the requirements set out in paragraphs (a), (b) and (c) of article 13(2) because her marriage had lasted over three years including more than one year in the UK before she initiated divorce proceedings; she had custody of MA and IA by court order, both of whom are Union citizens; and she had been the victim of domestic violence while her marriage to KA was subsisting. It was also agreed that at the time of the divorce in August 2009, NA’s German husband KA had ceased to be a “qualified person” for the purposes of the 2006 Regulations because he was no longer in the UK.
NA argued that article 13(2) did not lay down an express condition requiring the divorced Union citizen to have been working in the host Member State at the date of divorce. She complained that by imposing such a requirement the Regulations transposed the Directive incorrectly. She submitted that it was sufficient that she met any one of the requirements or “gateways” in the first subparagraph of article 13(2) and that she had been divorced from KA. Relying on the gateway construction, she said that before acquiring the right of permanent residence she would also have to meet the requirements of the second subparagraph of article 13(2) to be self-supporting: because she demonstrated this, pursuant to article 18 of the Directive, she acquired the right of permanent residence in the UK after five years’ lawful residence.
From that perspective, NA therefore said that a condition that the former spouse should be working in the host Member State at the date of divorce served no useful purpose. To the contrary, it operated to defeat the underlying purpose of the provision because the Union citizen spouse would be able to deprive the third country national spouse of the right of residence by leaving the host Member State prior to the decree absolute. This teleological or purposive approach was confirmed by Recital 15 to the Directive which called for due regard for family life and human dignity, and in certain conditions to guard against abuse. Equally, the Commission’s Proposal for what subsequently became the Directive (2001/0111(COD)) also clarified that article 13(2)’s purpose is:
To provide certain legal safeguards to people whose right of residence is dependent on a family relationship by marriage and who could therefore be open to blackmail with threats of divorce.
In addition to the “gateway” construction, NA advanced an alternative argument – or the “separation” construction – and placed reliance in Lahyani v The Minister of Justice & Ors  IEHC 176. She asserted that article 13(2) should be interpreted expansively so that, following the breakdown of her relationship with KA and their separation, she would retain a right of residence for a reasonable time to enable her to bring divorce proceedings, and to find work or means of support as required by the second subparagraph of article 13(2).
The Home Office argued that the “separation” construction of article 13(2) was contrary to the autonomous EU meaning of the end of a marital relationship established in Diatta, endorsed by the CJEU in C-40/11 Iida v Stadt Ulm  WLR(D) 315 and would lead to legal uncertainty and be unworkable in practice. Moreover, the “expansive” interpretation of article 13(2) adopted by Clark J in Lahyani in the High Court of Ireland was incorrect and could be distinguished because of Ireland’s particularly restrictive divorce laws and because the issue of permanent residence did not arise in that case. In any event, the “expansive” interpretation did not help NA because she had not begun divorce proceedings within a reasonable time and period of 18 months before initiating divorce proceedings was held not to be a reasonable time in Lahyani itself.
Reasons for Reference and Question
The Court of Appeal gave the following reasons for requesting a preliminary ruling from the CJEU on the proper interpretation of article 13(2):
(1) There is no express requirement in article 13(2) that in order to retain a right of residence a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce.
(2) National law does impose such a requirement under the Regulations.
(3) Amos is not binding authority for the proposition that the Regulations have correctly transposed the Directive, and that there is such a requirement under the latter. The issue raised in these proceedings was dealt with by way of concession in Amos.
(4) Their Lordships were not persuaded that the “separation construction” of article 13(2) adopted in Lahyani should be followed. Diatta makes it clear that there is a need for legal certainty as to when a marriage ends.
(5) However, the decision in Lahyani identifies the practical problem posed by this need for legal certainty. It has the inevitable consequence that there will be a delay, of varying length depending upon the national law of the host Member state, between the initiation of divorce proceedings and the date when the decree absolute is issued.
(6) While there is some force in the Home Office’s textual analysis of the title of article 13 – in ordinary language a right is not ‘retained’ on divorce if it does not subsist on that date – there is no less force in NA’s submission that the “gateway” construction accords with the need to interpret article 13(2) in a purposive manner, so as to avoid potential abuse by Union citizens who are, for example, contesting custody or rights of access to their children in divorce proceedings, or who have inflicted domestic violence upon their third country national spouse.
(7) The case for adopting the “gateway” construction is fortified once it is appreciated that the second subparagraph of article 13(2) (like its counterpart in article 12(2)) imposes a requirement of self sufficiency upon the third country national ex-spouse who is seeking to acquire the right of permanent residence after the divorce from (or death of) of their Union spouse.
(8) Neither party submitted that the answer to the issue raised in this appeal was acte clair. The answer should be the same in whichever host Member state a third country national is divorced from a Union citizen.
The Court of Appeal therefore referred this important question to the CJEU: