On 5 November, the First-tier Tribunal (Immigration and Asylum Chamber) issued their unreported determination on the residence rights, under EU law, of unmarried partners of EEA nationals where the relationship has broken down as a result of domestic violence.
The Tribunal, in a ground-breaking decision, found that unmarried domestic violence survivors have rights of residence under EU law and to hold otherwise would be arbitrary and unnecessary.
The appellant was a non EEA national who suffered domestic violence at the hands of her EEA national partner. In 2011, she obtained a residence card from the Home Office as the durable partner of an EEA national who was exercising his EU free movement rights. Her partner was verbally and physically abusive and the relationship dissolved in December 2011 as a result.
Under EU law, Directive 2004/38/EC, the spouse of an EEA national can retain his/her rights to reside in the host member state following a divorce if domestic violence occurred during the marriage. This provision was transposed into UK law though Regulation 10 of the Immigration (European Economic Area) Regulations 2006.
The appellant applied to the Home Secretary for a new residence card under Regulation 10 of the 2006 regulations but was refused on grounds that Regulation 10 only applied where the couple had been married and divorced. She appealed the decision before the Tribunal.
The Tribunal considered the UK Immigration Rules against the Immigration (European Economic Area) Regulations 2006 and noted that the Home Office uses similar criteria in determining whether a person was an “unmarried partner” (under the Immigration rules) and a “durable partner” (under the regulations).
The Immigration Rules permit the unmarried partners of British citizens/settled persons to retain their residence rights where domestic violence results in a breakdown of the relationship. No similar provision exists for durable partners of EEA nationals under the Regulations. The Tribunal therefore concluded that the durable partners of EEA nationals are treated less favourably than the unmarried partners of British Citizens under domestic law.
The Tribunal looked at the principle of equal treatment and discrimination under EU law and cited the CJEU case of Netherlands v Reed where the Court held that under the principle of equal treatment, a Member State that provides residence rights to unmarried partners of its own nationals must also provide such residence rights to the unmarried partners of EEA nationals exercising their free movement rights in its territory.
The Tribunal stated that since “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 allowed the appeal for the purpose of remitting the case back to the Secretary of State for reconsideration in light of its findings.