Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 (12 May 2011):EEA caselaw

News on June 5th, 2011 Comments Off on Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 (12 May 2011):EEA caselaw

The Court held that divorced spouses must establish that they have retained their rights of residence. Reference was made to Article 16.2 which applied to family members of EEA nationals who must have resided with the EEA national in the host Member State legally for a continuous period of five years. The word ‘legally’ meant in accordance with Community Law which essentially depends on the exercise of treaty rights.

Reference was made to the case of Diatta v Land Berlin ECR 567 in which the Court determined that family members of a migrant worker’s family are not necessarily required to permanently live with him in order to qualify for a right of residence under article 10. The Court stated that, following on from that case, ‘separation short of divorce does not affect that right of the non-national spouse under Article 16 of the Directive if both the EEA national and his or her non-national spouse continue to reside in the same Member State’.

The Court held that the appellants should not be required to show that their former partners were working for a continuous period of 5 years prior to their applications in order to establish a right of residence. It was held that the case of OA (Retained Rights of Residence) was incorrectly decided. The Court stated that ‘If, immediately before divorce, the requirements of Article 7.2 are satisfied, the non-national must then satisfy the requirements of Article 13.2’. Therefore, in order to qualify, the applicant must show that prior to the initiation of divorce (or annulment or termination of registered partnership), the marriage/registered partnership lasted for 3 years one of which was spent in the UK. This is subject to Article 13.2 which provides that the applicant can show that he or she is a worker, self-employed or that he or she has sufficient resources and that they will not become a burden on the host Member State.

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