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. It may be possible to apply for retained rights of residence if the applicant previously had a right to the residence 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 where there was domestic violence or with 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;
- the applicant has a 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 (see below).