In Amos & Onr the Court of Appeal considered EU rules governing the right of family members of EEA nationals to claim retained rights of residence after the family relationship has broken down. Last year in OA  UKAIT 00003, the tribunal interpreted the same rules restrictively. It held the EEA family member must show that the EEA national resided in the UK for the 5 years preceding the permanent residency claim exercising treaty rights. In reliance on OA, the tribunal rejected Amos’s case because there was no evidence that his French wife had worked. Therefore, he was not entitled to the right of permanent residence. In the linked case of Theophilus, the tribunal held that she did not satisfy the requirements because she had not shown that her French husband was exercising treaty rights (i.e. working) at the date of her divorce. Theophilus was unable to prove that her former husband was, or had been working, because she did not know where he was, whereas the Government did know, and could have produced proof in terms of National Insurance or income tax records.
Counsel for the SSHD accepted that he and the Tribunal had wrongly interpreted and applied the Regulations. They had overlooked the prior question of whether the person claiming a right of residence had acquired that right. Only if that person has acquired a right of residence does the question of its retention arise. The matter was therefore to be remitted to the Tribunal for redetermination. The Court did hold the appellants were not required to show that their former spouses were working for a continuous period of 5 years prior to their applications for the right of permanent residence. Therefore, OA was incorrectly decided.
As to the Procedural issue, the Court rejected Theophilus’ contention that the SSHD was required to assist her to establish her case. The Court held first there is nothing in the Directive or the Regulations or in the decisions of the ECJ to detract from the general principle of Community Law that procedural matters are subject to the domestic law of the Member States. Second, that the Tribunal appeals procedure is essentially adversarial: the appellant seeks to show that the decision of the SSHD is unlawful or otherwise wrong. The SSHD must present the facts as known to her fairly, and seek a decision of the Tribunal that accords with the law, but to go beyond those requirements would be irrational: it would be to require the Secretary of State to take steps to prove that her own decision was wrong. Nevertheless, the Court did highlight some of the procedural mechanisms open to the parties:
“Ms Theophilus does not suggest that the procedural law of the Tribunal hindered her ability to prove her case. Rule 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 authorises the Tribunal to “allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal” … even if that evidence would be inadmissible in a court of law. Furthermore, as Mr Eicke pointed out, Ms Theophilus could have applied under regulation 50 for a witness summons requiring her ex-husband to attend and give evidence as to whether or not he was and had been working. She did not do so. Nor did she seek a direction under rule 45 requiring the Secretary of State to provide any information necessary for the determination of her appeal. Indeed, she made no relevant application to the Tribunal. As Maurice Kay LJ pointed out in the course of argument, in these circumstances it is impossible to identify any error of law on the part of the Tribunal in this respect.”
Discharge the burden unassisted
The Court explained that whilst, as a matter of law, the SSHD is not required to provide information or evidence to assist the appellant, the appellant is not necessarily required to discharge the burden unassisted. The Court was also content to accept the agreed proposition ‘… separation short of divorce does not affect the right of the non-national spouse under Article 16 of the Directive if both the EEA national and his or her non-national spouse continue to reside in the same Member State.’ Since the cases are to be returned to the Tribunal, the substantive and procedural legal issues in these cases may be looked at again, and with more scrutiny.