The UK government is well-known for grotesque interpretation of those few ECJ rulings that seem to go its way — just think McCarthy 1, the perverse interpretation of which by our government went on to necessitate Lounes. But no case, as I am starting to realise, has been as abused by the UK government as Dias. Dias simply says that a residence card on its face does not, by itself, grant a right of residence. It is only evidence that conditions for that residence were met at the time the card was issued. Our government, across all its departments, now made Residence cards all but completely meaningless – something neither the court in Dias, nor the framers of the Free Movement Directive, clearly did not intend. Both non-EU family members with Retained Right of residence and Surinder Singh residence card holders are finding it out the hard way.
Dias is supposed to be a good thing, because it makes the reverse also true — e.g. absence of a residence card does not take the right to reside away. But what is also says, is that right of residence only continues to exist, nominal validity of any document notwithstanding, so long as underlying conditions for residence are met. This is something most — I repeat MOST – holders of those cards fail to understand even when you explain it to them, and numerous HO employees do not understand that either. having difficulty distinguishing between EU residence and leave to remain. But this is simple enough in a straightforward case — if you were issued with a residence card as a spouse of an EU national, for instance, you have the right to reside so long as you are still a spouse and your EU national sponsor is in the Uk and economically active.
Now, if your marriage has broken down, and you are applying for benefits or reentering the UK, you will be asked to prove that you meet conditions for retained right of residence — not a very easy feat, often, because it immediately requires a ton of paperwork a migrant might not have easily at hand. You need marriage certificate, divorce certificate, proof that both of you resided in the UK for at least a year, and crucially proof that your spouse was economically active or had permanent residence during divorce (what most ROR cases fail on). Last but not least, you yourself need proof that you are now an economically active person. Economic activity is somewhat easy to prove when payslips but increasingly hard in self-employment or other cases. Technically, a person with a retained Right of Residence would need to permanently maintain a briefcase of documents.
It is in order to reduce this administrative unworkability, Directive 2004/38 prescribed issue of Residence cards – and when you have retained a right of residence, you can again submit that briefcase to the Home office, get a new residence card, and then you won’t have to prove to anyone again, that you have retained right of residence, right? Logic suggests, that the point of retaining right of residence is subject to assessment of a single past point in time. After all, it is all down to an evaluation of how things stood at the time of your divorce, and further from that only to yourself being economically active. But surely you don’t have to prove to anyone again, that you have retained your right to residence at the time of divorce? Because this is by definition in the past and had already been evaluated, nothing new can happen with that and so no one is going to re-evaluate that, right? Wrong.
When you later apply for a permanent residence card, the government WILL require – beffudingly, some may argue – proof that you retained a right of residence, again. In fact it is not entirely clear, on the basis of what it would refuse your application if you fail to provide that and oNLY rely on post-ROR period (all of applications I have ever seen relied on combined period). But the Regulations and the Directive require only that application be accompanied by proof that you acquired permanent residence, and interpretation of that is seemingly open to both sides. I have seen a case (in which I did not act) that went like this:
Non-EU woman marries EU national, they all live here, and more than 3 years later they divorce. Working status of both at the time of the divorce is shaky – from him, there are only P60s for the year in question, for her, there is some more evidence, but she was also pregnant at the time of and immediately after divorce, then gave birth (to a child of another man, a BC who she later married). Bank statements and tax returns for her are somewhat scarce but they exist, although there is no other evidence of self-employment or what it consisted of.
Initially uninterested in pursuing EEA status further, after the divorce from EU national, she files in 2009 as a wife of her BC husband – she is refused for lack of requisite immigration status (EU route to immigration rules switch), which is understandable — what is not understandable, is why she is not offered a discretionary leave then, as she had an infant BC son. The clue seems to be in a refusal letter — a caseworker deciding her application under the immigration rules, brilliantly concluded that she “may have retained right of residence” upon her EEA divorce, and hence does not qualify for discretionary leave (here I fault Law Firm Ltd, who represented her then, for failing to challenge that).
Befuddled, she then researched her EEA rights and files for PR on the basis of retained right. The application is refused because there is no evidence of sponsor’s economic activity for the whole five years, but she and her dependent older son are issued new residence cards based on the determination that they retained right of residence following her divorce from the EEA. Presumably this means then that the Home Office evaluated and recognised the claim that she retained the right after divorce — her sponsor’s employment and her economic activity since, had been looked at and conclusion was made that yes, she qualifies.
Imagine her surprise when she applies for PR after five more years in 2015, and the Home Office, in essence, says that she had not retained right of residence in 2009 in the first place? It seems that it now does not recognise that her sponsor was working at the time of divorce. Indeed, standards and rules for evidence of economic activity have changed a lot since 2009 to 2015, now it is not enough to show a P60, one needs to prove that employment took place over a specific period of time, have references, bank statements, she did not have all that – and it having been almost 7 years, the sponsor was now long in the wind. So a set of facts surrounding her 2009 divorce, once evaluated and decided in her favour, is just thrown out. HO makes no explanation nor apology nor even acknowledgment of the fact that she was previously issued with the Residence card on the basis of the SAME FACTS THAT HAVE SINCE NOT CHANGED, because these are all 2009 facts – and it ought to mean something. It simply doesn’t.
She then files an appeal which is considered at Taylor house by none other than Mark Symes – who else! – who rules, even more bizarrely, that her ex-sponsor was indeed a worker, what the hell, but HER – she was not properly self-employed at the time of divorce or since, so cannot rely on that time. he invents some strange standard that does not exist in EU law to evaluate her earnings — long story short, he accepts the portion of her claim that HO hadn’t , but suddenly refuses to accept te portion that HO actually had no problem with. Now what? Since no one is in danger of procuring any more evidence from 2009, it by now being 2017, this could go on forever! Mr Symes makes only a passing mention of the fact that HO appears to have previously accepted her ROR and issued her a card based on it, but does not assign that fact any significance.
For those particularly interested, I must say in this case the woman did not have a good claim of her own post-ROR 5 years of work, due to mainly staying at home and relying on her BC husband – or so help me I’d have brought that claim now. But when she came to me, which was last Autumn, after Mr Symes’ determination, I told her to apply on Appendix FM 10-year route as a wife of her BC husband and forget all this circus. It was not because I think she was treated fairly, the merits of her claim to ROR in the first place notwithstanding – it is because I think she will NEVER be treated fairly. The system simply seems to provide no remedy for constant reevaluation of the same claim, which, in complex and aged claims, may really be a nightmare.
But that is nothing compared to an impasse at which Surinder Singh parents now find themselves. as you probably spotted, Surinder Singh claim is also the type of claim that principally is determined on the basis of evaluating facts that are, by definition, in the past – eg they will not change, and seemingly there would be no need to re-evaluate them. The family has once resided in another EU country, the sponsor had once exercised his or her Treaty Rights there, then they returned, and then, the decision to issue spouses/parent(s) with Residence Cards will have been made, since November 2016, by a special “Surinder Singh Taskforce” (department 190) at The Capital compound in Liverpool. That decision making, as everyone even tangentially involved knows, includes extensive questionnaires, interviews, and additional document requests, and takes months. One can only assume that once a decision that someone indeed qualifies under Surinder Singh is made under that process, by this specialized unit of the government, that decision then will be conclusive and bound on other government departments. Right?
Wrong, according to the Pension service. It has now taken to ignoring residence Cards issued to Surinder Singh parents and re-determining their status instead, issuing refusals that are so boilerplate that DWP people forget to change names of countries involved (my clients who lived in Poland received a refusal from DWP stating it was “Polandire”, with first few letters of Ireland presumably not erased. The rest of the letter just refers to Ireland, to which this case has o connection. I have even ,exceptionally, taken on representing thisformer Surinder Singh client in the dispute with the DWP and his appeal to the social security chamber. I have no intention of arguing merits of Surinder Singh claim with the Pension service – this would indeed me throwing pearls before swine. They did not conduct any review nearly as extensive as the Home Office, did not review most of the documents and it is very clear that they understand little to nothing about this. So why should de UKVI determination not be adhered to?! This is utter nonsense.
When you challenged them, they say: DIAS is why. But that makes no sense, and I found some Social Security chamber tribunal cases that agree with me. The Tribunal apparently rules already many times that Home Office EEA documents can only be ignored when there is good evidence that the right indeed does not exist, but that is to mean that facts have, for instance, changed, or all sides acknowledge that they never stood as required (for instance documents issued in gross error). Facts giving effect to right to reside are capable of changing — for instance, sponsor may no longer be economically active, or could leave the UK, marriage could end, etc etc. THAT is why we have Dias. But that does NOT give mandate to throwing out the once-made determinations on the facts that can no longer change, past facts — be it retention of rights at divorce or a Surinder Singh claim. In the case I have at hand, application for Pension Credit was made immediately after residence card was issued, and despite being apparently award of UKVI rigorous Surinder Singh process, DWP basically just say – well, as far as WE are concerned, you do not qualify under Surinder Singh. How come?!
It seems increasingly that people spend hundreds of pounds and months of time procuring Home Office issued EEA residence cards in complex cases, only to have HO later say that these cards are meaningless and will not be accepted EVEN BY ITSELF for face value. You MIGHT be able to impress a border guard, but that’s about it — and not to say that he also can’t ask you questions and develop his own opinions. In fact I even have a feeling over the last year, that the government had shifted its line of defense, if you will, from refusing to issue cards to simply treating those it did issue as meaningless and useless.
I am not the one suffering the most from this, of course, but that made me quite depressed lately, as a person who had, for a couple of years, made most of her business helping people get those — apparently useless – documents.