Can I Appeal for Refused Retained Rights of Residence?

In recent years, many migrants from outside the European Economic Area (EEA) have had their application for Retained Rights of Residence in the UK refused by the Home Office on a number of common grounds. Some of those individuals have, however, successfully gone on to bring an appeal and be granted residence. In this article, we will explain whether non-EEA migrants can appeal a refusal of an application for Retained Rights of Residence, and, on what basis.

What are Retained Rights of Residence?

Retained rights of residence allow a person from outside of the EEA to apply for an EEA residence card if they previously had a right to reside in the UK as a family member of an EEA national who either had a permanent right of residence in the UK, or was a ‘qualified person’ (a worker, student, self-employed person, self-sufficient person or someone looking for work) in the UK.

The Home Office guidance states that you may have retained rights of residence if:

• your, or another member of your family’s, marriage or civil partnership to that person has ended (with a divorce, annulment or dissolution)
• that person has died and you had lived in the UK for at least one year before they died
• you’re the child of an EEA national who has died or left the UK, or the child of their spouse or civil partner, or former spouse or civil partner, you were in education when that person died or left the UK, and you continue to be in education
• you’re the parent and have custody of a child who has a retained right of residence because they’re in education in the UK

Most commonly, applications for retained rights of residence are made by non-EEA citizens who have been living in the UK and were married or in a civil partnership to an EEA citizen, and that relationship has now ended.

Retained rights of residence are provided in law by the Immigration (European Economic Area) Regulations 2016; section 18 states, “The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of (a)a valid passport; and(b)proof that the applicant is a family member who has retained the right of residence”.

Why are Applications for Retained Rights of Residence Refused?

It is all too common to see applications for retained rights of residence refused on the basis of not providing sufficient evidence of the identity and nationality of the EEA national, or that they were ‘exercising free movement’ when the marriage or civil partnership came to an end. Home Office case officers will refuse an application for retained rights if the applicant:

• has not provided any valid proof of their own or the EEA national sponsor’s identity
• provides evidence of their own or the EEA national sponsor’s identity that is either forged or counterfeit
• has not provided any proof that they are related to the EEA national sponsor
• ceased to be the family member of an EEA national who was exercising free movement rights in the UK
• does not provide enough evidence to show that they meet the conditions of regulation 10

Can I Bring an Appeal if my Retained Right of Residence Application is Refused?

In some cases, it may be possible to appeal a refusal of a retained right of residence decision by the Home Office. Regulation 36(4) of the Immigration (European Economic Area) Regulations 2016 provides the right to appeal, but only if certain documents are provided.

Regulation 34(4) states:

“If a person to whom paragraph (2) does not apply claims to be the family member of an EEA national under regulation 7, the relative of an EEA national who is an extended family member under regulation 8, or a family member who has retained the right of residence under regulation 10, that person may not appeal under these Regulations without producing—

• A valid passport; and

either—

(i) An EEA family permit

(ii) A qualifying EEA State residence card;

(iii) In the case of a person claiming to be the family member of an EEA national, proof that the criteria in regulation 7 are met; or

(iv) In the case of a person claiming to be a family member who has retained the right of residence, proof that the criteria in regulation 10 are met.

In other words, as long as a valid passport and one of the additional forms of proof listed above are provided, the refused application will have a right of appeal. Regulation 10 is contained within the Immigration (European Economic Area) Regulations 2016 and outlines how a family member can have retained rights of residence. Hence if you do wish to bring an appeal, you will need to ensure that you provide proof that you do have retained right of residence, but this is not always possible.

What if I do not Have the Documentation Needed to Bring an Appeal?

Unfortunately, in some cases, the refused person may not have the documents they need to bring an appeal. This may occur, for example, if the applicant’s marriage to an EEA national broke down due to domestic violence or other difficult circumstances. In such cases, the Home Office guidance used by case officers states, “It is often difficult for victims of domestic violence to produce the documentary evidence of violence and there is often an unwillingness or insufficient evidence to take the matter to court. Although you must still try to obtain police or court evidence as confirmation of domestic violence from the applicant, where this is not possible, alternative evidence may be accepted from other sources. Where a relationship has broken down, it may not always be possible for the applicant to provide all of the documents relating to their EEA national sponsor”. In such situations, case officers are told to “consider each case on its merits and if you are satisfied the applicant cannot get the evidence themselves, make inquiries on their behalf where possible, getting agreement from your senior caseworker before doing so”.

Final Words

Immigration Solicitors are well versed in finding alternative forms of evidence in such cases. If your application for an EEA family card based on retained rights of residence has been refused, before considering an appeal, it is advisable to speak to an immigration lawyer. They will be able to assess if you do qualify under this immigration route and the best method of responding to the refusal.

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Can I Remain In The UK After Divorce?