Under some circumstances, a non-EEA family member of an EEA national may retain their immigration rights if, for example, the EEA national dies or the marriage/civil partnership is terminated. In such a case the non-EEA family member may be entitled to remain in the UK. This is called “retained rights of residence” under European law, the rules about it are quite complex.
EEA Retained Rights of Residence – General Overview
It may be possible to apply for retained rights of residence if the applicant previously had a right to the residence (i.e. EEA Residence Card) as a family member of an EEA national exercising treaty rights in the UK or with Permanent Residence and:
- relevant EEA national has died (Regulation 10(2), or
- EEA national left the UK (Regulation 10(3), or
- the relationship ended with a divorce or once a civil partnership is dissolved, subject to additional requirements below, or
- in cases which involve parents who have custody of a child who retained his right of residence and in some other limited circumstances.
In cases where the application for retained rights of residence is submitted after the divorce or once the civil partnership has been dissolved, if one of the followings applies:
- the marriage or civil partnership lasted for at least 3 years prior to commencing the proceedings and a couple resided in the UK for at least 1 year before divorce or dissolution was finalised;
- in domestic violence cases;
- the applicant has custody of a child of the relevant EEA national;
- the applicant has access rights to the child of the relevant EEA national, provided the child is under 18 years of age and the access must take place in the UK;
A person who holds retained a right of residence may eventually qualify for permanent residence under European law.
Retained Rights of Residence After Divorce
It is possible to apply for retained rights of residence following the breakdown of a relationship with an EU national partner. This may be following a divorce, dissolution of civil partnership or in domestic violence cases.
It is possible to submit the application only once the relationship has been officially terminated. The non-EEA spouse/civil partner will need to meet the requirements in Regulation 10(5) of EEA Regulations 2016. The relationship is considered to be terminated when one of the following documents is issued:
- a decree absolute for marriages;
- a decree of nullity, which is issued for marriages or civil partnerships;
- a certificate of dissolution for civil partners.
Requirements for Retained Rights of Residence
There are a number of requirements that must be satisfied in order to retain rights of residence following the breakdown of a relationship.
At the date of termination of a marriage or civil partnership, the EEA national sponsor must have been a “qualified person” or had a right of permanent residence in the UK. This requirement, quite often, is one of the most challenging to prove with documentary evidence. Following the breakdown of the relationship, the ex-partner may be unwilling to provide evidence to show his/her employment. In those situations, it is advisable that expert legal advice is though at the earliest opportunity.
Following termination of a marriage or civil partnership, the applicant must be residing in the UK as a “qualified person” themselves, i.e. employed, self-employed or self-sufficient, or must be a family member of such person.
Finally, one of the requirements of Regulation 10(5) below must be met.
- the marriage or civil partnership lasted for at least 3 years prior to proceedings for divorce or dissolution starting, and you must have lived in the UK with your partner for at least one year during that period, or
- you have a custody of the child from your ex-partner, or
- you have access rights to the child, while that child is under 18 years of age.
- your circumstances are particularly difficult, i.e. you were a victim of domestic violence
Permanent Residence based on Retained Rights
It is possible to apply for a permanent residence based on retained rights. You will need to have resided in the UK for a combined period of 5 years, first as a family member of EEA national ex-partner and later as a person with retained rights of residence.
It may be possible to apply directly for permanent residence after 5 years, without first applying for retained rights of residence. Speak to one of our immigration lawyers in order to find out whether you will be eligible.
The fees for retained rights of residence application are £65 per applicant. It may be possible to apply for settled/pre-settled status, there is currently no application fees for that application.
Current processing times for a residence card based on retained rights of residence is up to 6 months. Most application are however decided in 3-4 months, depending on any complexities.
Rights of Appeal for Retained Rights Applications
In the event that your application is refused, you will normally get a full right of appeal. In order to appeal the refusal of your visa based on retained rights, you will need to lodge an appeal with the First-Tier Tribunal. Speak to one of our London immigration lawyers for assistance with preparing and lodging your appeal.
Applying for a Residence Card based on Retained Rights
You will need to apply using the form EEA (FM). In support of the application, you will need to provide supporting evidence to meet the requirements under the category you are applying under.
Our team of Immigration lawyers in London has extensive experience dealing with EEA application of any complexity. We can assist with preparing the initial application, applying for Permanent Residence and appeal work. Contact us today to speak regarding your residence card application based on retained rights.
For more information on EEA applications, visit our EU immigration page.
You can retain your rights of residence following the breakdown of a relationship, i.e. divorce, or on some other basis stated above. This will allow you to reside in the UK in your own right and later apply for permanent residence.
What application form do I use?
Applications for a Residence Card based on retained rights of residence must be submitted using the form EEA (FM). Applications for Permanent Residence based on retained rights must be submitted using the form EEA (PR).
How long will my visa be valid for?
The Residence Card on the basis of retained rights is usually issued for a period of 5 years. It is possible to apply for settlement once you qualify for it.
Can I work in the UK?
Once you retain your rights of residence, you will be able to continue working in the UK or be self-sufficient until you obtain permanent residence.
Can I bring my new partner to the UK?
If you subsequently remarry while on retained rights, you will not be able to bring your spouse or partner to the UK as your dependant. They will need to qualify under immigration rules, for example for a UK spouse visa once you obtain permanent residence.
Our Retained Rights of Residence Services Review
Contact our London based Immigration Lawyers if you need any help with your Retained Rights application. Call us on 020 7439 3000 or use our contact form to get in touch with us regarding your application.
You can start by booking a consultation with one of our EEA immigration experts so that we can assess your case and help you make a valid Residence Card application based on retained rights of residence.