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Gafri Qudari Balogun v Secretary of State for the Home Department

[2023] EWCA Civ 414
A Nigerian man married a French woman who lived and worked in the UK. He got in trouble with the law and went to jail, then they divorced. Because he was in jail, he wasn't working, and the law says he needed to be working to keep his right to stay in the UK after the divorce. So the court said he had to leave.

Key Facts

  • The appellant (A), a Nigerian citizen, married a French citizen (Y) in 2009.
  • Y began working in the UK in 2010-2011, and A was issued an EEA residence card.
  • Divorce proceedings began in January 2014, finalized in March 2015.
  • A was imprisoned from April 2014 to June 2015 on fraud convictions.
  • Y left the UK sometime between August 2014 and March 2015.
  • A's residence card was revoked in April 2016.
  • A appealed the revocation, arguing that his rights under Directive 2004/38/EC were not affected by the divorce or imprisonment.

Legal Principles

Directive 2004/38/EC governs the right of residence for family members of EU nationals.

Directive 2004/38/EC

A third-country national's right of residence derived from their spouse's EU nationality.

Directive 2004/38/EC, Articles 7.2, 13.2; Singh v Minister for Justice and Equality (C-218/14)

Imprisonment of a third-country national may terminate their right of residence under Article 7.2 if they cease to meet the conditions.

Onuekwere v Secretary of State for the Home Department (C-378/12)

Article 13.2 protects the right of residence for family members after divorce, but only if conditions are met at the time of the final divorce decree, not initiation of proceedings.

NA v Secretary of State for the Home Department (C-115/15); Singh v Minister for Justice and Equality (C-218/14)

Orfanopoulos v Land Baden-Württemberg (C-482/01) concerning pre-Directive worker status is not directly applicable to the interpretation of Directive 2004/38/EC regarding third-country national family members' rights.

Orfanopoulos v Land Baden Württemberg (C-482/01)

Outcomes

The appeal was dismissed.

The appellant did not meet the conditions of Article 7.2 of Directive 2004/38/EC at the time the divorce was finalized because his imprisonment had ended his worker status. Therefore, he had no right protected under Article 13.2 at the time of the divorce decree.

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