A recent appeal concerning third country national’s right to continue residing in the UK after divorce from an EU national and release from prison was dismissed by the Court of Appeal. The case is Balogun v Secretary of State for the Home Department [2023] EWCA Civ 414. The appeal pre-dated the end of the transition period and so EU law remained relevant.

Background

Mr Balogun was a Nigerian national. In 2009 he married a French citizen who shortly thereafter began working in the UK. Mr Balogun was issued an EEA residence card, valid until June 2016 so that he could join his wife in the UK.

In 2014 divorce proceedings were initiated and 14 months later the marriage ended.

Mr Balogun had convictions in 2009 and 2011 for offences of dishonestly and a month after the divorce proceedings began, he was convicted of conspiracy to defraud and sentenced to 27 months’ imprisonment. Whilst in prison, his wife left the UK and stopped exercising her treaty rights to reside. The divorce was also finalised.

Upon his release from prison, Mr Balogun relied on the right to reside in Article 13 of Directive 2004/38/EC (the retained right of residence in the event of divorce and the like), arguing that the right was triggered on initiation of the divorce proceedings. He argued that he should be treated as meeting the “work” condition in Article 13 while in prison.

The decision

In the First-tier Tribunal, the Secretary of State explained that Mr Balogun’s residency card was revoked for two reasons. He had not provided evidence that, at the date of the divorce (when he was in prison) he was a worker, self-employed person or self-sufficient. He had also abused his rights and his residency was cancelled on public policy grounds, on account of his convictions.

Mr Balogun argued that he was a worker until he went to prison, but also that he had ‘worker status’ throughout his time in prison. He continued to be a worker when he was on conditional immigration bail, either because the ‘reasonable time’ requirement to find another job cannot expire until he is permitted to lawfully work again. He retained his worker status and therefore his right to reside in the UK.

Mr Balogun relied on the case of Organopoulos v Land Baden Württemberg (C-482/01) [2005] CMLR 433 to make his argument. A migrant worker who is a citizen of a member state and in prison, if he was working immediately before his imprisonment, and provided he finds another job within a reasonable time of leaving prison, generally continues to be “duly registered as belonging to the labour force of the host Member State”, even if he is not available for employment while in prison. Periods of imprisonment do not count towards the acquisition of a right of permanent residence but they also do not break the continuity of a period of time as a worker. Retaining a status and the acquisition of rights are different.

However, Onuekwere v Secretary of State for the Home Department (C-372/12) [2014] 1 WLR 2420 shows that time spent in prison is not ‘legal residence’ for the purpose of acquiring a right of permanent residence. If that is right, it cannot count for the purpose of article 13 either. The Secretary of State also pointed out that Mr Balogun did not challenge his bail conditions on the basis that they were a breach of his EU rights after his release. So even if the retained right could continue he simply did not meet the conditions in article 13 for such a right.

The Secretary of State argued that since imprisonment brought any lawful residence as a family member under EU law to an end, by the time of his divorce he did not enjoy any EU right to reside which could be preserved by article 13. The Court of Appeal accepted this argument. Any right to reside that Mr Balogun had before he was imprisoned could not be revived upon release.

The Upper Tribunal said that Mr Balogun was “not a worker under [the 2006 Regulations] because only an EEA national can have that status”. He only needed to show that before he was imprisoned he was the equivalent of a worker in the same way a EEA national would be. But the Court of Appeal found that the Tribunal erred in law in the way they considered the 2006 Regulations and in holding Mr Balogun was a worker when he was imprisoned. Whilst the classification of Mr Balogun as a worker was incorrect, the ultimate determination of the tribunal was correct. The Court of Appeal also concluded that the safeguard provided by article 13 is only required once the divorce is made final as, up until then, the third country national is protected as a family member by article 7.2. The appeal was therefore dismissed.

As we move further from the date of our withdrawal from the EU, this case will become less relevant; for now, it provides a useful and detailed analysis of case law, and of the way the right to reside was conferred before 31 December 2020.