Court of Appeal rejects challenge to the UK’s rules on free movement

02 Mar 2017

The Court of Appeal this week rejected a challenge to the UK’s rules on the rights of non-EU nationals who are, or have been, family members of EU nationals residing in the UK: Shakeel Ahmed v Secretary of State for the Home Department [2017] EWCA Civ 99.

The Appellant, a national of Pakistan, was the ex-husband of a Polish national who had been working in the UK at the time of their marriage.  UK legislation implementing the EU Citizenship Directive (Directive 2004/38/EC) provided that, in order to retain a right of residence in the UK following divorce from an EU national, a person in the Appellant’s position had to be working or self-sufficient at the time of the divorce.  Since, in this case, there had been a four month gap between the divorce and the date on which the Appellant commenced employment, the Home Secretary decided that the Appellant had not retained a right of residence in the UK.

Whilst there was no dispute that the Home Secretary had correctly applied the domestic legislation, the Appellant argued that the Directive imposed no such requirement and that the UK legislation was therefore incompatible with EU law.  In a judgment handed down on 28 February, the Court of Appeal rejected this argument.  Giving judgment for the Court, Lady Justice Arden held that, under article 13(2) of the Directive, a non-EU national was required to be working or self-sufficient at the time of the divorce in order to retain a right of residence thereafter.  As such, the UK legislation correctly implemented EU law and the appeal was dismissed.

With this week’s defeat in the House of Lords, the post-Brexit rights of EU nationals living in the UK is one of the most significant issues facing the Government at present.  Whilst the position of non-EU nationals has received less media attention thus far, the Court of Appeal’s judgment is a timely reminder that any steps taken to protect the position of EU nationals in the UK following Brexit will have to deal with the position of any non-EU family members, including what happens to them in the event of a marriage breakdown.

Ben Lask represented the Home Secretary.

Please click here to read the judgment.