ECJ Case Law: Retained Rights of Residence for Non-EEA Nationals

Recently the case of Kuldip Singh Case C‑218/14  was heard by the Court of Justice of the European Union, this case highlighted the issues that separation can have for international couples. The separation of an international couple can be particularly problematic where one party seeks to rely on the other’s immigration status to remain in the UK. 

Divorce proceedings are never easy for any couple and can be extremely emotional as well as negative specially when brought in haste. This can be made even more difficult where one party of a divorcing couple is a non-EEA national. There are often a number of issues which need to be considered before divorce proceedings are initiated. The European Economic Area (EEA) enables EEA nationals and their non-EEA partners to enter the UK and any other EEA member state in which the EEA spouse is living and exercising treaty rights. The children of such EEA nationals will also have a right to education and consequently a right to reside in the UK.

The EEA legislation allows a non-EEA national to retain rights of residence in the UK even where an EEA partner may decide to move elsewhere. The EEA regulations and immigration policy governing this area are extremely complicated and can be confusing. Each particular case must be viewed on its’ own facts and certain exceptional circumstances may be considered in favour of migrants in immigration tribunals.

Facts of Case

The case of Kuldip Singh involved an EEA citizen who had departed from Ireland and later petitioned for divorce. The case highlighted the significance of timing, where an EEA national intends on departing from the UK and the couple intend on pursuing  divorce proceedings. The timing may then have a significant impact on a non-EEA national’s right to reside in a member state. In this particular case because the divorce proceedings had been initiated after the EEA spouse had departed from the UK, the non-EEA spouse could not be permitted to retain their right to remain in the UK under the EEA regulations.

ECJ Decision

Where non-EEA nationals rights to live in the UK are solely on the basis of their relationship with their EEA partner it will important for the non-EEA national to consider the impact of separation on their immigration status. There may be times where a non-EEA national will be unable to leave the UK following separation due to their commitments to children. The case of Kuldip Singh is particularly important in such cases as it clarifies the need for divorce proceedings to be initiated whilst the EEA national is still in the UK. The Court opted to follow a strict approach when it came to a reading of an EEA’s retained rights of residence, commenting:

Article 13(2) of Directive 2004/38 must be interpreted as meaning that a third-country national, divorced from a Union 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 a Union citizen.

Expert Legal Advice for Immigration Clients

Choosing the right law firm from the beginning can ensure the correct applications are made from the outset this will not only allow for an easy mind in preparing for an application, but will also mean that in the long run EEA nationals will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines.

Our team of experienced and professionally qualified immigration solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.

If you have instructed legal representatives and you are unhappy with their conduct you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02071830570 for a telephone assessment.

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