One of the trickier aspects of EU free movement law is “retained” rights of residence for family members if the relationship with their EEA citizen sponsor ends. A common scenario is where an EEA national marries a non-EEA national who then travels to the UK as their spouse. After a few years, the non-EEA national’s parents — the in-laws — come to the UK and are granted a residence card as Regulation 7 family members. What then happens if the marriage between sponsor and spouse fails prior to the in-laws securing permanent residence (i.e. five years)?

EU law rights of residence come to end in less than a month. But this issue is likely to arise in the immigration tribunals for a while yet, depending on when the in-laws in question were first issued with their residence cards or family permits.

Retention of residence rights after sponsor leaves the picture

Retained rights of residence are governed by Regulation 10(5) of the EEA Regulations 2016 as amended (and as continued in part by the myriad of saving provisions):

(5) The condition in this paragraph is that the person (“A”)—

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(a) ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on the termination of the marriage or civil partnership of A;

The wording above would suggest that only the person married to the EEA national can retain the right to reside after divorce. The issue is, what do the non-EEA national’s parents do?

Article 13(2) of the Citizenship Directive (2004/38) states that:

Without prejudice to the second subparagraph [which I’ll mention later], divorce, annulment of marriage or termination of the registered partnership… shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where [certain conditions are met].

It appears therefore that Article 13 is more widely drafted than Regulation 10(5): it covers family members, not just a single family member (i.e. the spouse or partner).

Support for this line of reasoning can also be found in the relevant Home Office guidance:

End of relationship with EEA national sponsor: regulation 10(5)…

The non-EEA national spouse or civil partner of an EEA national can, in certain circumstances, retain a right of residence when their relationship ends. The family members of the former spouse or civil partner may also retain a right of residence. This is in line with regulations 10(5) of the 2016 regulations.

Whilst guidance is in no way actual law, the guidance accords with the Directive itself. I am also aware of other cases on this issue being conceded at court by the Home Office. Yet Regulation 10 has never been amended to reflect this stance or to properly reflect the Directive.

Invoking retained rights post-Brexit

It remains to be seen how these cases can be resolved without having to resort to litigation. With the wording not having been amended prior to the end of the Brexit implementation period, the Home Office may well continue to apply the more limited definition in Regulation 10(5). Such a refusal should however be challengeable under EU law: see Part 4 of the Withdrawal Agreement, and Paragraphs 5 and 6 of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020.

Article 10(1)(f) of the Withdrawal Agreement should also assist. This covers family members residing in the UK in accordance with Article 13 of Directive 2004/38/EC before the end of the transition period and continuing to reside here thereafter.

We have yet to see any reported decisions from the Tribunal concerning the application of preserved EU law but the decision of Munday (EEA decision: grounds of appeal) [2019] UKUT 91 (IAC) may be worth bearing in mind. In that case, the Upper Tribunal held that “the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties; it is such a breach that we would be attempting to show in these kinds of cases.

Potential pitfalls

There appears to be some potential good news for Grandma (or Grandpa, as it might be). Now some notes of caution.

First, given the way Regulation 10(5) is drafted, the argument I have outlined may well not be accepted by the Home Office at first instance.

Second, with the passage of time, the non-EEA spouse (i.e. the son or daughter of the likely appellant(s) in the scenario above) may be a British citizen by now. Whilst this is not necessarily an issue, it is a further complication (but see Case C-165/16 Lounes v Secretary of State for the Home Department for a possible answer). 

Finally, there is the issue of how Regulation 10(6) and the second subparagraph of Article 13(2), below, will be viewed in this type of case:

… the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements…

If this argument is being run before the tribunal, whilst this would not be an Article 8 appeal, it would still be prudent to provide evidence that the non-EEA spouse can provide support, which cannot be provided back “home”, and that Grandma is not a burden on the state.