Posts Tagged service
In  EWHC 2776 (Fam) Ali v Rodrigues, claimant appreciated that the date of petition to divorce and date of and English respectively Scottish decrees are highly important to the husband’s immigration status. One way in which a former EEA family member can retain right of residence is if the marriage exceeded 3 years.
The husband was in Pakistan from 10th January 2016 to 18th February 2016. A certificate of entitlement to a divorce was issued on 21st March 2016 and decrees nisi and absolute were pronounced in the Romford (England) Family Court on, respectively, 12th April and 27th May 2016. That was the English decree. On 14th December 2016, the Home Office notified the husband that it was revoking his residence card on the basis that he was no longer a family member of an EEA national. The wife remarried in 2016, following the English decree and has sponsored her second husband’s application for leave to remain. The husband petitioned for divorce in Scotland on 27th September 2016, three years and five months after the date of the marriage and at least two years and three months from the date of the separation. On 6th November 2017, the Edinburgh Sherriff Court and Justice of the Peace Court pronounced the decree absolute, which is the Scottish decree.
If the English decree stands, the marriage will have lasted less than 3 years. If the Scottish decree stands, 3 years will have been exceeded. The husband essentially argues that the English decree is tainted by irregularity of service upon him. Lieven J held that the English decree should stand, on the basis that when it comes to failures related to service, it is appropriate to look at the nature of what went wrong and where the prejudice, if any, lies (at 36 ff). The wife took reasonable steps; and there are indications that the husband was trying to avoid service.
Given irregularities in service the English decree is voidable, but not void in the discretionary opinion of the court: the consequences of setting aside the English decree would more severe than that of the Scottish decree’s invalidity. If the English decree does not stand, the wife’s second marriage would have been made at a time when the first marriage persisted. That would be a very serious impact on her, her second husband and the child.
Update 28 December 2018 the Court of Appeal in  EWCA Civ 2748 has confirmed. Rome I issues no longer featured in the analysis.
Update 10 November 2017:  UKEAT 0056_17_1011: The Appeals Tribunal has confirmed.
Thank you Steve Peers for alerting me to the relevance of the conflict of laws and the Rome I Regulation in particular in the recent Aslam et al v Uber Employment Tribunal decision. The case essentially revolves around whether claimants are employees – it is a pivotal case determining the immediate regulatory context for this part of the ‘sharing economy’. Para 87 is a particularly delightful expression of scepticism towards the sharing economy’s claims (further highlights are here).
Conflict of laws is addressed at para 103 onwards, a completion of the analysis in case of rejection of the tribunal’s view that the UK company in the Uber group employs claimants, and instead one would have to regard Uber BV (of The Netherlands) as employer. I do not think the tribunal expresses itself entirely clearly on Rome I.
If Uber BV is the employer, reclassification of the contract as one of employment (as opposed to one for the provision of services), makes the choice of law for Dutch law partially inoperable (not, as the tribunal notes at para 105 in fine, replaced with the laws on England and Wales). Next the tribunal (paras 106-109) continues to speak of ’employer’ but reviews application of Article 3 (including the application of Article 3(3)’s ‘purely domestic contracts’. If there is a contract of employment, in my view only Article 3(1) and (2) can have any impact on the analysis: the remainder of Article 3 concerns provisions for which Article 8 itself provides exhaustive rules.
From para 110 onwards, the tribunal does more tidily address Article 8 Rome I and holds, after reference to counsel view, that if indeed the Dutch BV is the employer (for it does not suggest that the contract would have to be qualified as one of services), Dutch law would largely apply, except for a limited number of provisions of English law by way of mandatory rules. (Reference to Article 21’s ordre public is justifiably rejected).
I am assuming Uber are appealing. Expect the conflicts analysis to return.
(Handbook of) European private international law, Chapter 3, Heading 3.2.5.