By Victor Falcon Mmegwa
Can family members of EU citizens acquire independent rights of admission or residence in the UK where they have lost their family connection to the EU citizen they are related to?
Qualifying family members can continue living in the UK lawfully without their EU citizen sponsor. But a person who qualifies for this right does so exclusively on a personal basis, and so cannot be the sponsor for another family member. This is called retained right of residence.
Article 13 of Directive 2004/38/EC states
1.Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
2.Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 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:
(a)prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
(b)by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or
(c)this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
(d)by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.
Before acquiring the right of permanent residence, 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. ‘Sufficient resources’ shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis.
This case will look into how qualifying family members are able to continue living in the UK without their EU citizen sponsor.
Balogun v Secretary of State for the Home Department  EWCA Civ 414
On 19 April 2023, The Court of Appeal made a judgment in Balogun v Secretary of State for the Home Department  EWCA Civ 414. The key issue of the case was whether Mr Balogun enjoyed an EU right to reside after his divorce and release from prison. The appeal pre-dated the end of the transition period and EU law continued to be relevant.
Mr Balogun is a national of Nigeria who had been married to a national of France exercising her Treaty rights in the UK, but who was then imprisoned for 27 months for an offence of dishonesty. Before he was imprisoned, divorce proceedings were begun. While Mr Balogun was in prison, his wife stopped exercising Treaty rights and left the UK. Their divorce was then finalised.
On his release from prison, Mr Balogun relied on the right of residence in Article 13 of Directive 2004/38/EC, arguing that this right was triggered on initiation of divorce proceedings and that he should be treated as meeting the “work” condition in Article 13 while he was in prison relying on the case of Orfanopoulos v Land Baden Württemberg (C-482/01)  CMLR 433).
The Court of Appeal rejected Mr Balogun’s arguments, accepting the Secretary of State’s case that Mr Balogun could only rely on Article 13 from finalisation of his divorce, not initiation, and 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 rejected Mr Balogun’s reliance on Orfanopolous, accepting the Secretary of State’s submission that Onuekwere v Secretary of State for the Home Department (Case C-378/12)  1 WLR 2420 was authority that Mr Balogun did not meet the conditions in Article 7(2) of the Directive while he was in prison.
From the above judgement, we can see imprisonment can bring an end to any lawful residence as a family member of an EU citizen. This is as a family member of an EU citizen who is unable to be employed, self-employed or self-sufficient where in prison. Should you require any assistance, then do not hesitate to contact us.
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