On 20th April 2018, the Court of Appeal and the Secretary of State in the case of Baigazieva v Secretary of State for the Home Department  EWCA Civ 1088, clarified the law in relation to Retained Right of Residence. Prior to this case, it was interpreted that non-EEA national must prove that that their EEA national spouse was a qualified person at the time of the divorce decree. However, it is now established that the non-EEA national must only show that their EEA national spouse was a qualified person at the initiation of their divorce proceedings.
The Court of Appeal and the Secretary of State identified that the period between the commencement of divorce proceedings and the grant of divorce decree is quite critical. It was understood that once the termination of marriage is initiated, it will be unreasonable and highly-unlikely for the non-EEA national to obtain evidence of the EEA-national spouse’s employment status as the relationship ties are broken and dissolved. Due to this, the Court of Appeal clarified the interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2016 and Article 13(2) of the Directive 2004/38/EC.
The position of the law in relation to retained right of residence is now clear. A non-EEA national will only be able to obtain retained right of residence once the divorce is granted legally, however the conditions for retaining right of residence will only be based until the commencement of divorce proceedings.