In a ground-breaking decision, the First-tier Tribunal (Immigration and Asylum Chamber) has found that the unmarried partner of a European Economic Area (‘EEA’) national can retain her residence rights in the UK if her relationship breaks down due to domestic violence. To hold otherwise, the Tribunal stated, would be ‘plainly arbitrary and unnecessary’ in violation of EU law.
The case was brought by the Greater Manchester Immigration Aid Unit on behalf of a non-EEA national who suffered serious physical abuse at the hands of her partner, an EEA national. The AIRE Centre provided a written expert opinion in the case. Following a hearing conducted by two judges, the Tribunal’s unreported determination was issued on 5 November 2012.
The appellant arrived in the UK as a visitor in 2005 and subsequently made an unsuccessful claim for asylum, exhausting her appeal rights in 2006. In 2008, after separating from her husband, she began her relationship with the EEA national, who was working in the UK. In 2011, the appellant obtained a residence card from the Home Office as the durable partner of an EEA national who was exercising his EU Treaty rights here. Witnesses testified before the Tribunal that the appellant’s partner had been working in the UK continuously since 2004.
After the appellant’s divorce from her husband was finalised, she and her partner began to plan their wedding, purchasing wedding rings and asking friends to serve as matron of honour and best man. Unfortunately, the appellant’s partner engaged in what the Tribunal described as ‘jealous’ behaviours and eventually became verbally and physically abusive, assaulting and injuring the appellant on several occasions. The appellant left their shared home with the help of the police in December 2011 and entered a women’s refuge. Her partner was ultimately convicted of a domestic violence offence, and the appellant sought an injunction to prevent him from contacting her.
After separating from her partner, the appellant applied to the Home Office for a new residence card, claiming that she had retained her residence rights under Regulation 10 of the Immigration (European Economic Area) Regulations 2006. Regulation 10, which implements provisions of EU Directive 2004/38, provides that the spouse of an EEA national can retain his or her right to reside in the UK following a divorce if domestic violence occurred during the marriage. In the alternative, the Appellant applied for leave to remain in the UK under Article 8 of the European Convention on Human Rights (‘ECHR’), which protects the right to respect for private and family life.
The Secretary of State refused the appellant’s application for a new residence card in August 2012 and curtailed her existing residence card, stating that Regulation 10 only applies where a couple has been married and has divorced. The Secretary of State further stated that she would not consider the appellant’s Article 8 rights unless the appellant made a ‘charged application’. The Secretary of State did not indicate which form the appellant should submit in order for her Article 8 rights to be considered.
Before addressing the applicable law, the Tribunal made two factual findings: that the appellant suffered ‘egregious’ domestic violence at the hands of her partner before the relationship broke down, and that her partner had acquired a right of permanent residence in the UK under EU law by the time the couple separated.
Equal treatment and non-discrimination
Turning to the law, the Tribunal noted that the Home Office uses similar criteria when determining whether an individual qualifies for residence rights as an ‘unmarried partner’ under the Immigration Rules or a ‘durable partner’ under the Immigration (European Economic Area) Regulations 2006. It observed, however, that paragraph 289A of the Immigration Rules permits the unmarried partners of British Citizens and settled persons to retain their residence rights when domestic violence results in a breakdown of the relationship, while the Regulations do not make any similar provision for the durable partners of EEA nationals. The Tribunal concluded that the durable partners of EEA nationals are thus treated less favourably than the unmarried partners of British Citizens under UK law.
The Tribunal described the finding of the European Court of Justice (now the Court of Justice of the European Union) in Netherlands v Reed  EUECJ R-59/85 (17 April 1986). In that case, the Court established that under the EU principle of equal treatment, a Member State that provides residence rights to the unmarried partners of its own nationals must also provide such residence rights to the unmarried partners of EU-national workers in its territory. ‘Following that logic’, the Tribunal stated, ‘as the unmarried partners of British nationals retain the right of residence in the event of domestic violence, then the durable partners of EEA workers should also retain the right of residence in a similar situation – to do otherwise is to deprive them of the “social advantage” granted to … them following the decision in Netherlands v Reed, and thus to place obstacles to the free movement of workers.’ The Tribunal clarified that these obstacles would arise because ‘durable partners may not wish to accompany their EEA partners for fear of lack of legal protection in the host member state’. It concluded that the Secretary of State’s unfavourable treatment of the durable partners of EEA nationals compared with the unmarried partners of British Citizens is ‘contrary to the EU principles of equal treatment and non-discrimination on the basis of nationality’.
In reaching this finding, the Tribunal distinguished the European Court of Justice’s decision in Kaba (Free movement of persons)  EUECJ C-356/98 (11 April 2000). In Kaba, the Court found that the UK did not violate the principle of equal treatment when it required the spouses of EEA nationals exercising Treaty rights in the UK to complete four years of lawful residence before being entitled to apply for indefinite leave to remain (‘ILR’), whilst requiring the spouses of British Citizens and settled persons to complete only 12 months of lawful residence prior to applying for ILR. The Tribunal noted that the conditions upon which the Court relied in reaching its holding in Kaba did not apply in the appellant’s case; in particular, while EEA nationals could (at the time Kaba was decided) become settled persons and take advantage of the 12-month rule, the appellant would never be in a position to qualify for leave to remain under paragraph 289A of the Immigration Rules.
The Tribunal began its discussion of proportionality by observing that this principle is one of the foundational principles of the EU legal order and is articulated in Article 52(1) of the Charter of Fundamental Rights of the European Union. Article 52(1) provides that limitations on EU free movement rights ‘may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. The Tribunal observed that the principle of proportionality applies even when the UK is exercising some degree of discretion provided under EU law, citing Zalewska v Department for Social Development  UKHL 67 as an example. ‘Consequently’, the Tribunal wrote, ‘the United Kingdom cannot apply either [Directive 2004/38] or the Regulations to the appellant in a manner that is disproportionate to a legitimate objective of the European Union.’
The Tribunal went on to observe that ‘UK decision makers have a duty to read the provisions of the EEA Regulations harmoniously with European Union law and its general principles, in accordance with the European Communities Act 1972 and the principle of indirect effect as established in Von Colson & Anor v Land Nordrhein-Westfalen [ EUECJ R-14/83 (10 April 1984)]’.
The Tribunal stated: ‘In our view it is plainly arbitrary and unnecessary for the Directive and the Regulations to fail to provide retained residence rights of [sic] domestic violence victims who are in recognised durable partnerships with EEA nationals, whilst providing such rights of [sic] victims who happen to have been married or in civil partnerships. The arbitrariness of the omission is particularly apparent in this appellant’s case, where documentary evidence indicates that her marriage was imminent and would have taken place but for the occurrence of the domestic violence.’
‘In effect’, the Tribunal continued, ‘the appellant has been forced to choose between maintaining her relationship with her abuser or losing her residence rights. Her choice necessarily engaged fundamental rights under the Charter i.e. respect for physical and mental integrity, freedom from torture and inhuman or degrading treatment, and the right to respect for private life.’
The Tribunal concluded: ‘In our view the omission of retained residence rights for durable partners who suffer domestic violence is incompatible with the Charter and cannot be regarded as genuinely meeting objectives of general interest recognised by the Union or the need to protect the rights and freedom of others.’
Failure to exercise discretion under Directive 2004/38
Even if the Tribunal’s findings concerning equal treatment, non-discrimination and proportionality cannot stand, the judge found that it was still ‘arguable’ that the Secretary of State erred in failing to examine the appellant’s personal circumstances and justify the denial of her residence rights, as required by Directive 2004/38. The Tribunal cited Moneke and others (EEA - OFMs) Nigeria  UKUT 341 (IAC) (22 August 2011) as confirming the Secretary of State has the power to exercise her discretion in respect of durable partners. While the Tribunal did not expressly conclude that the Secretary of State should have exercised her discretion to grant the appellant residence rights, it suggested that the Secretary of State should at minimum have undertaken an appropriate discretionary examination of the appellant’s circumstances.
Article 8 of the ECHR
Regarding Article 8, the Tribunal recalled that the Secretary of State, in her refusal of the appellant’s application, had stated that she would not consider the appellant’s Article 8 rights until the appellant submitted a ‘charged application’. The Tribunal noted that the most relevant form, Form FLR(O), entails a fee of £561 and that there is no indication that a waiver of this fee is available.
The Tribunal observed that in GR v the Netherlands, 22251/07  ECHR 24 (10 January 2012), the European Court of Human Rights held that under Article 13, individuals in Council of Europe Member States such as the UK who wish to apply for a recognition of their residence rights under Article 8 must be able to do so through an ‘accessible procedure’ whose fees, if any, are proportionate to the applicant’s ‘actual income’. In that case, the Court found a violation of Article 13, taken together with Article 8, because of a refusal to waive a fee for an application.
The Tribunal went on to note that following the curtailment of her residence card, the appellant lacked a clear right to work and had limited resources as a result. It further observed that since paragraph 289A of the Immigration Rules does not apply to the appellant, any charged application she submitted on that basis would be futile.
While it did not find that the Secretary of State was required to grant the appellant leave to remain under Article 8, the Tribunal concluded that the Respondent was ‘seeking to compel the appellant to pay £561 simply to assess her Article 8 rights’. The Tribunal stated that the Respondent had ‘erred’ by ‘failing to give proper consideration to the appellant’s rights under Article 8 of the ECHR’, suggesting that the Tribunal believed that the Respondent was required to consider the appellant’s request for leave to remain under Article 8 notwithstanding the fact that she had not made a ‘charged application’.
The Tribunal allowed the appeal to the extent of remitting the case to the Secretary of State for reconsideration in light of the findings described above.