European Union (EU) law can be potent stuff; its spectacularly emollient effects are totally life-changing for beneficiaries. Conversely, the abrasive national rules are fraught with treachery and only the fit survive. Impossible things are possible for illegal entrants under the regulations but under the rebarbative rules impossibility will often confront, and usually crush, the applicant: outside the rules non-standard features are required to justify granting leave. Another thing to know about the Darwinian rules, which are true only by the accident of history, is that when they do come into play to aid an applicant, there is scant acknowledgement that they even exist. From this perspective, the rules are a myth; by skewing them regularly, the Home Office shortchanges applicants even when coverage under article 8 of the European Convention on Human Rights (ECHR) exists. Involving a myriad of intriguing issues, the EU law tale of a Pakistani lady called Nazia Ahmed (NA) has been reported as  UKUT 89 (IAC),  EWCA Civ 995 and  EWCA Civ 140. These days her case is simply known as Pending Case NA (C-115/15) and may hold the key to unlocking numerous doors in EU law (see EU:C:2016:259, EU:C:2016:487 and post).
The Court of Appeal’s latest judgment,  EWCA Civ 140, reveals that three further questions have been referred for a preliminary ruling. Therefore, combined with the single question formulated in  EWCA Civ 995, a total of four questions are awaiting answers from Luxembourg’s Elysian Fields. The application initiating proceedings was lodged in the Court of Justice of the European Union (CJEU) on 6 March 2015 and the reference in the Official Journal was published as Application: OJ C 171 from 26 May 2015, p. 20. NA’s case is unique because, unlike past cases, her EU national children’s proposed removal within the EU (from the UK to Germany, the state of their nationality and the only state within the EU in which they are entitled to live) was, at  UKUT 89 (IAC), held to violate their human rights. Equally, in relation to the derivative right of residence, her case turns on the discrepancy between regulation 15A(3)(c) of the Immigration (European Economic Area) Regulations 2006 – mandating an inexorable “temporal overlap” (see below) – and the more generously framed article 12 of Regulation 1612/68 (now article 10 of Regulation 492/2011/EU).
The “temporal overlap” arguably concerns the Home Office unilaterally shortchanging beneficiaries of the regulations by adding conditions. Of course, NA’s case also turns on issues relating to the retained right of residence under article 13(2) of the Citizens’ Directive (Directive 2004/38/EC); albeit this question seems to have already been decided against her by the CJEU in C-218/14 Singh and Others EU:C:2015:476. So this case may well be a second bite at the cherry in that regard. Because NA has been causing quite a few “problems” for the Home Office, her case probably provides yet more ammunition to the argument that it is best to pull out of this absurd system of EU law. But this Pakistani lady’s predicament is such that naughtiness is the only way forward to address the nasties lurking beneath the surface of her knotty problems. (I have mentioned illegal entrants above but she is not one of them.)
NA is an abused woman who had been mistreated by her husband. She married Khurshid Ahmed (KA) in Karachi in September 2003 and in March 2004 they moved to the UK. But their marriage was scarred by domestic violence. KA, who has German nationality, left the matrimonial home in October 2006 after assaulting NA and in December 2006 he left the UK altogether. During his time in the UK, KA was either a worker or self-employed. 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; the decree absolute was issued in August 2009 and she was granted custody of the two children who are both German nationals.
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 2006 Regulations – made by NA 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 ex-husband was exercising treaty rights in the UK at the time of the divorce.
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 Directive 2004/38/EC 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 Upper Tribunal  UKUT 89 (IAC)
The tribunal thought 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 it had not been bound by Amos. For the tribunal, the second subparagraph of article 13(2) and the decision in Case 6-267/83 Diatta  2 CMLR 164 supported the view mandating that the ex-spouse must be exercising treaty rights in the UK at the date of the divorce. NA failed to show this irrespective of 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.
Therefore, Lang J and Judge Storey found that NA did not have a retained right of residence under article 13(2). However, they nonetheless decided that she did have a right of residence under both article 20 of the Treaty applying Case C-34/09 Zambrano  QB 265 principles (para 68) and article 12 of Regulation 1612/68 (para 78). The tribunal also allowed her appeal on article 8 of the ECHR (para 79).
The Court of Appeal  EWCA Civ 995
In this first round judgment, NA appealed the finding that she did not have a retained right of residence under article 13(2). The Home Office was respondent and, as in the tribunal proceedings, the AIRE Centre had intervened. The Home Office’s appeal against the tribunal’s decision that NA had a right of residence on article 20 and article 12 grounds was adjourned (see more on  EWCA Civ 140 below), but they did not appeal against the tribunal’s decision to allow NA’s appeal on article 8.
Lord Dyson MR, Sullivan and 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 an EU 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?
The parties agreed that NA’s 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 EU 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 EU 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 Directive 2004/38/EC 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 argued 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 Directive 2004/38/EC, 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 EU citizen spouse would be able to deprive the third country national spouse of the right of residence by leaving the host state prior to the decree absolute.
This teleological or purposive approach was confirmed by recital 15 to Directive 2004/38/EC 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  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 Case C-40/11 Iida  WLR(D) 315, and would lead to legal uncertainty and be unworkable in practice (it would make it difficult to decide whether a marriage had lasted for three years if there was no legal certainty as to when it had ended). 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
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 an EU 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 Directive 2004/38/EC, 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 EU 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 EU 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 an EU citizen.
In this judgment, the Court of Appeal referred the following question to the CJEU:
Must a third country national ex-spouse of an EU citizen be able to show that their former spouse was exercising treaty rights in the host member state at the time of their divorce in order to retain a right of residence under article 13(2) of Directive 2004/38/EC?
Following the recent (16 July 2015) judgment in the case of C-218/14 Singh and Others EU:C:2015:476 (see here) referred by the High Court of Ireland, the first question posed by the Court of Appeal has probably become redundant because in that case the Grand Chamber held that:
Article 13(2) of Directive 2004/38/EC must be interpreted as meaning that a third country national, divorced from a EU citizen, whose marriage lasted for at least three years before the commencement of divorce proceedings, including at least one year in the host member state, cannot retain a right of residence in that member state on the basis of that provision where the commencement of the divorce proceedings is preceded by the departure from that member state of the spouse who is an EU citizen.
The Court of Appeal  EWCA Civ 140
In this second round judgment, the Home Office was the appellant but for convenience Lord Dyson MR, Sullivan and Sharp LJJ continued to call them the respondent. As noted above, in the  EWCA Civ 995 proceedings, the Home Office’s appeal had been adjourned. The parties agreed that the tribunal had been wrong to conclude that NA had a Zambrano right to remain in the UK because she could not rely on any EU right of residence in Germany because as German nationals her daughters MA and IA could live in Germany and if they did, applying Zambrano, she would enjoy a derived right of residence there. Lang J and Judge Storey had misdirected themselves by thinking that NA (i) did not have any immigration status in Germany, and (ii) nor could she rely in Germany on any EU right of residence. They were utterly mistaken in their view that she would only be entitled to reside in Germany as a matter of EU law if and only if she demonstrated (which they calculated that she clearly could not) self-sufficiency as a parent within the meaning of the decision in Case C-200/02 Chen  ECR 1-9925.
The New Issue: TFEU and Zambrano
The Home Office argued that the presenting officer’s concession in the tribunal that it would be unrealistic to expect NA to live in Germany was true only to the extent of article 8 and needed to be distinguished from the point as regards denying NA a right of residence in the UK and thereby compelling her in practice to leave the territory of the EU together with her daughters. On the other hand, it was not in dispute that denying NA a right of residence in the UK would trigger her exit from this country.
Reliance was placed in Lang J and Judge Storey’s analysis, at paras 83 et seq, that NA’s removal was disproportionate for many reasons: the length of her lawful residence (eight years prior to NA’s application for permanent residence) and self-employment for four years, her suffering domestic abuse, her school going children’s EU citizen status and her derivative right of residence pursuant to article 12 of Regulation 1612/68 all pointed in her favour. Save that her application for permanent residence was refused in March 2010 – which was prior to transition to HC 194 on 9 July 2012 – she would clearly succeed even if her case were considered under the Darwinian terms laid down in the rules. Her daughters’ dual citizenship of Pakistan and family ties and cultural affinities did not bite against these weighty points.
NA also argued that her daughters’ rights under articles 20 and 21 of the TFEU were engaged by their constructive removal; NA and their presence in the UK stemmed from exercising free movement rights by the family under the Treaty, the Directive and Regulation 1612/68. Resort to curtailing their residence rights under articles 20 and 21 needed to comply with general EU law principles, and especially show compliance with EU fundamental rights. Breaches of article 8 of the ECHR and article 7 of the Charter of Fundamental Rights of the European Union (CFR) would occur if MA and IA were constructively removed by denying NA a right of residence in the UK irrespective of whether they ended up in Germany (where the distanced EU national father lives) or Pakistan.
The Home Office accepted that the children’s rights under articles 20 and 21 were engaged but that under Case C-86/12 Alokpa and Moudoulou EU:C:2013:645 they would only be infringed if they “find themselves obliged in practice to leave the territory of the European Union altogether” (which they would not if they resided in Germany). Moreover, constructive removal in breach of CFR and ECHR rights is not the same as exiting the EU. Under Case C-256/11 Dereci and Ors  1 CMLR 45 the test for the latter was more stringent and at para 66 et seq the CJEU was at pains to stress the specificity of the test. The unity of the family, as regards third country national family members, of an EU citizen was not justifiable for economic reasons alone. In other words, as the CJEU held:
68. … the mere fact that it might appear desirable … is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.
Addressing Dereci in Harrison (Jamaica)  EWCA Civ 1736, the Court of Appeal (Ward, Elias and Pitchford LJJ) found it necessary at para 67 to concentrate on the nature of the right at stake and to decide what constitutes an impediment. In Harrison it was accepted that EU citizens would not be forced to exit EU territory but the point was nevertheless argued that Zambrano applied because article 8 rights would suffer interference upon exit from the UK. Elias LJ’s decision accepted that EU law forbids conduct materially impeding a right because this is the same as the depravation of that right. But he held that it was necessary to concentrate on the nature of the right and what constitutes an impediment. He did not think that the right to reside in EU territory was an entitlement to “any particular quality or life or to any particular standard of living” and where the right remained intact in “substance” there was no impediment to exercising the right “albeit that the quality of life is diminished”: para 67.
For him, if serious enough, the degree of impairment to the quality of life will mean that the right to reside is infringed because the EU citizen will be compelled to leave with the third country national. But the ouster of this situation under Zambrano demonstrated the existing focus on protecting the substance of the right because the approach “already provides protection from certain interferences with the enjoyment of the right.” It is worth recalling that along with the “truly groundbreaking” cases of Rottmann  ECR I-1449 and McCarthy  All ER (EC) 729, Zambrano heralded “a tectonic shift” in the sovereignty of the member states and “the creation of a real European citizenship”.
However, Elias LJ read Dereci to narrow the gap opened by the Zambrano principle. To him, it meant that the adverse impact to family life or the economic desirability of the third country national alone were incapable of triggering the Zambrano doctrine. Elias LJ remained circumspect about the factors which engage the “wider principle”, he reasoned that if the foregoing factors – which clearly rendered the right of residence less beneficial or enjoyable – “do not engage this wider principle it seems … extremely difficult to identify precisely what will”: para 68. He questioned the degree of interference which may fall short of de facto compulsion but nevertheless constituted a type of interference that exceeded the adverse impact to family life or the economic desirability points. Eager to keep his own house in order, Elias LJ thus found “the scope for the right to bite would be extremely narrow” because of the “very real uncertainty as to the nature and scope of the doctrine.” In light of this uncertainty, which was itself at variance with EU law, he roundly rejected the possibility that the CJEU’s language deliberately sought “to leave open this grey area where Zambrano may bite.”
But NA cleverly submitted that, unlike her case, the line of authoritative CJEU cases analysed by Elias LJ did not involve a clear finding by a competent tribunal that the EU citizen’s removal from the host member state (UK) to the EU citizen’s state of nationality (Germany, the state of MA and IA’s nationality and only state within the EU in which they are entitled to live) would entail a breach of that EU citizen’s rights under article 8 of the ECHR and article 7 of the CFR. Thus the framework in her case was unique in that sense. In Harrison, neither Damion Harrison nor his co-appellant’s – i.e. AB (Morocco) – article 8 rights were held to have been breached by deportation. Rather than debating issues of legal entitlement, the CJEU had concentrated on the practical state of the EU citizen. In the instant case, the tribunal had essentially found enough of a violation of article 8 to render removal disproportionate. It was therefore ultimately immaterial whether the Home Office conceded (only) that it was unrealistic to expect NA and her children to live in Germany in the context of article 8 because the concession was equally applicable to her article 20, Zambrano claim. The point was a practical one because the acknowledgement that it was unrealistic to expect NA and her children to live in Germany, MA and IA would in practice be compelled to leave EU territory if NA was removed from the UK.
Reason for Reference
The novel point in the appeal had not been addressed by the CJEU: in circumstances where a competent tribunal has held that an EU citizen’s removal from the host member state to his state of nationality would breach article 7 and 8 rights and such a citizen’s removal from the host member state has been proposed and the only state in which that citizen entitled to live is his state of nationality (Germany), is the host state (UK) entitled to remove the remove him to his state of nationality? The issue presented was not acte clair – the fact that the competent authority conceded that removal to the home state was unfeasible made the reference all the more necessary.
Regulation 1612/68: Teixeira and the Temporal Overlap
The tribunal found that, by exacting a temporal overlap between the child being in education and the EU/EEA national parent being in the UK, regulation 15A(3)(c) of the 2006 Regulations was less generous than article 12 of Regulation 1612/68. The tribunal concluded that the new regulation afforded less protection than article 12 and diluted its effects.
The CJEU unambiguously said in Teixeira EU:C:2010:83 that the child does not necessarily need to be in education in the UK at a time when the EU parent is continuing to meet the condition that he is exercising treaty rights in the host member state. The CJEU was of the view that article 12 covered the primary carer of the child of a former migrant worker as much as it covered the child of a current migrant worker, i.e. the residence right in the host state of a primary carer of a migrant worker’s child, being educated in the host state, does not depend on either of the child’s parents having worked as a migrant worker in the host state on the date the child began education.
Reading Advocate General Juliane Kokott’s Opinion in Teixeira  2 CMLR 50, the CJEU’s judgment in Czop  PTSR 334 and the Court of Appeal’s views in MDB  EWCA Civ 1015, the tribunal was satisfied that NA has a derived right of residence on the basis of article 12 of Regulation 1612/68.
Before Lord Dyson MR, Sullivan and Sharp LJJ, the Home Office submitted that whilst article 12 does not expressly mention a temporal overlap, a condition of this nature is necessarily inferable from its underlying purpose – the fifth recital to Regulation 1612/68 explained this point. The temporal overlap in regulation 15A(3)(c) was lawful. On the facts, no obstacle to freedom of movement had been evinced in the instant case. Where the EU national worker parent had left the host state to which he had moved as a worker before his child had entered school in the host state, there was no obstacle to the mobility of that parent’s freedom of movement as a worker if his child was not able to commence her schooling in the host state in question. Thus, on the facts, the German father, KA, had permanently exited the UK in late 2006 prior to MA and IA commencing school and the mere fact that they were not entitled to begin school in the UK could not possibly affect his freedom of movement as a worker.
From NA’s perspective, Teixeira and related cases did not suggest the article 12 rights, of a child of a EU national parent who had exercised free movement rights for work/self employment, depended on the parent’s continued residence in the host state when the child’s education began. Moreover, the authorities held that article 12 needed to be interpreted generously. In fact, MA and IA met the only four applicable conditions: (1) they were children of an EU national worker, (2) their EU national father KA had historically exercised his right of free movement to come to reside with his family in the host state, (3) they had either moved to the host state or been born in it as a result of the EU citizen parent’s exercise of free movement rights, and (4) they had entered the education system of the host state.
In addition to the above cases, numerous authorities, ranging from the late 1980s to more contemporary times, were citied to the Court of Appeal. These included Cases 389/87 and 390/87 Echternach and Moritz  2 CMLR 305, Case 197/86 Brown  3 CMLR 403, Case C-413/99 Baumbast  3 CMLR 23, Case 480/08, Case C-310/08 Ibrahim  2 CMLR 51 and Case C-45/12 OFNATS v Hadj Ahmed EU:C:2013:390.
The court did not embark on a full appraisal of these authorities because the Home Office accepted that the cases did not support its position about the temporal overlap, demanding the EU parent’s presence in the host state at the time of the child’s induction into education, laid down in regulation 15A(3)(c). But the Home Office did quarrel that although the authorities contained the four conditions identified by NA, these were not the only conditions: a generous interpretation of article 12 was only consistent with furthering its underlying purpose. Although NA did not argue that the case law clearly eschewed the existence of an additional temporal overlap condition, she submitted that none of the cases suggested imposing such a condition. To be sure, the CJEU had never found it necessary to factually probe whether or not an additional temporal overlap mandating the continuing residence of the EU citizen parent in the host state at the time his child entered education. In sum, if the temporal overlap were to be implied as claimed by the Home Office, then such factual scrutiny would have been conducted but was not.
The parties, hence, anaylsed the Teixeira line of authorities to mean that they neither expressly precluded nor supported the existence of an additional temporal overlap condition further to the four conditions.
Reason for Reference
Lord Dyson MR, Sullivan and Sharp LJJ concluded that the answer to the temporal overlap condition was not acte clair. They held that as a matter of principle the question, whether article 12 of Regulation 1612/68 is subject to an implied condition that the EU national parent must be in the host member state when the child enters education in that state, needed to be answered. Regulation 1612/68 and the authorities dually left the question open. (The court thought the answer to this question should be the same in whichever host member state the EU citizen’s child is educated.)
In light of the above issues, Lord Dyson MR, Sullivan and Sharp LJJ referred these three further questions to the CJEU:
(1) Does an EU citizen have a right to reside in a host member state under articles 20 and 21 of the TFEU in circumstances where the only state within the EU in which the citizen is entitled to reside is his state of nationality, but there is a finding of fact by a competent tribunal that the removal of the citizen from the host member state to his state of nationality would breach his rights under article 8 of the ECHR or article 7 of the CFR?
(2) If the EU citizen in (1) (above) is a child, does the parent having sole care of that child have a derived right of residence in the host member state if the child would have to accompany the parent on removal of the parent from the host member state?
(3) Does a child have a right to reside in the host member state pursuant to article 12 of Regulation 1612/68 EEC (now article 10 of Regulation 492/2011/EU) if the child’s EU citizen parent, who has been employed in the host member state, has ceased to reside in the host member state before the child enters education in that state?