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Court of Appeal hands down judgment on EU family member rights

EU Law

The Court of Appeal has today handed down judgment in Balogun v Secretary of State for the Home Department [2023] EWCA Civ 414. The key issue was whether Mr Balogun enjoyed an EU right to reside after his divorce and release from prison. The appeal pre-dated the end of the transition period and EU law continued to be relevant.

Mr Balogun had been married to an EU citizen exercising Treaty rights, but was then imprisoned for an offence of dishonesty. Before he was imprisoned, divorce proceedings were begun. While Mr Balogun was in prison, his wife stopped exercising Treaty rights and left the UK, and their divorce was then finalised. On his release from prison, Mr Balogun relied on the right of residence in Article 13 of Directive 2004/38/EC (retention of right of residence in event of divorce, etc.), arguing that this right was triggered on initiation of divorce proceedings and that he should be treated as meeting the “work” condition in Article 13 while he was in prison (relying on Orfanopoulos v Land Baden Württemberg (C-482/01) [2005] CMLR 433).

The Court of Appeal rejected his arguments, accepting the Secretary of State’s case that Mr Balogun could only rely on Article 13 from finalisation of his divorce, not initiation, and that since imprisonment brought any lawful residence as a family member under EU law to an end, by the time of his divorce he did not enjoy any EU right to reside which could be preserved by Article 13. The Court rejected Mr Balogun’s reliance on Orfanopolous, accepting the Secretary of State’s submission that Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420 was authority that Mr Balogun did not meet the conditions in Article 7(2) of the Directive while he was in prison.

Julia Smyth represented the Secretary of State.

The judgment may be accessed here.

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