How to Apply for Retained Right of Residence

It is possible for a person who previously held the right to live in the UK as the family member of a person from the European Economic Area (EEA) to live here if they have ‘retained rights of residence’ in certain circumstances. In this retained right of residence guidance, we will explain what is meant by retained rights of residence, the requirements, how to prepare for your retained right of residence application, and how to gain ILR after retained rights of residence.

What is the retained right of residence?

Retained right of residence means that certain family members of EEA nationals can keep their right to live in the UK if the sponsoring EEA national dies, leaves the UK, or divorces or dissolves their relationship with their spouse. If you are eligible under this immigration route, you will be able for an EU Settlement Scheme (EUSS) family permit. EUSS family permits are given to family members of nationals of the EU, Switzerland, Norway, Iceland, or Liechtenstein. To make an application for retained right of residence, your EEA family member must have been living in the UK by 31st December 2020.

With your EUSS family permit, you will be able to come to the UK for up to 6 months. During this time you can work or study if you wish. If you wish to stay longer, you can apply to stay permanently through the EU Settlement Scheme (see below for more information on this).

You may have the retained right of residence if you are from outside the EEA (this includes EU, Switzerland, Norway, Iceland, and Liechtenstein) and if any of the following events have occurred:

• your eligible EEA family member has died
• you are the child of an eligible EEA family member, and they have died, or they have left the UK, and you remain in education here
• you have a child with an eligible EEA family member, and they have died, or they have left the UK, and your child remains in education here
• you and your eligible EEA family member have divorced
• your eligible EEA family member divorced a member of your family
• your relationship with your eligible EEA family member broke down permanently as a result of domestic violence or abuse

Retained right of residence requirements

The eligibility required for retained right of residence differ depending on your circumstances, as follows:

Retained right of residence following the death of the eligible EEA national

If you wish to apply for a EUSS family permit following the death of your eligible EEA national family member, you will need to show that you were living in the UK as their family member for at least one year immediately before their death. It is also possible to apply under this route if:

• you were living in the UK as their family member immediately prior to their death, and

• your eligible EEA family member resided in the UK as a worker or self-employed person at the time of their death, and
• your eligible EEA family member was living in the UK 2 or more years immediately prior to their death

The rules also state that if your family member died following an accident or disease at work, there is no requirement for them to have been living in the UK for 2 or more years.

Retained right of residence after divorce or dissolution

If you were married or in a civil partnership with a person from the EU, Switzerland, Norway, Iceland, or Liechtenstein, you may be eligible for EEA retained right of residence following divorce or dissolution. You will need to prove to the Home Office that you were living in the UK at the time of the divorce or dissolution, and that:

• your marriage or civil partnership lasted for a period of 3 years or more, and you were both living in the UK for at least one year during that period, or
• you have retained custody of your ex-partner’s child, or
• you were awarded the right of access in the UK to your ex-partner’s child, and the child is under 18, or
• you or another family member have experienced difficult circumstances (this may include as the victim of domestic violence or abuse during your relationship)

The rules also allow you to apply for EEA retained rights of residence following a divorce if you have a family member who had an eligible marriage or civil partnership. In this case, you must have lived in the UK when the relationship ended. To apply under this route, you will need to prove that you are their:

• child or grandchild under 21, or
• dependent child or grandchild over 21, or
• dependent parent or grandparent

Retained right of residence as a victim of domestic violence or abuse

You may be able to apply for retained right of residence if you were in a family relationship with a person from the EEA, but this permanently broke down as a direct result of domestic violence or abuse in the UK.

If you are considering applying for retained right of residence following domestic violence or abuse, you must have been the EEA national’s spouse, civil partner, unmarried partner, child or grandchild under 21, dependent child or grandchild over 21, dependent parent or grandparent.

The eligibility criteria can be quite complex, and hence if you are considering applying for a retained right of residence, it is important to understand the requirements for your specific situation.

How to apply for retained right of residence

To apply for an EUSS family permit on the basis of your retained right of residence, you will need to complete the online application form¹ (your application must be made outside the UK). There is no application fee payable.

With your application, you will be asked to provide a number of documents to support your case. You may be asked to provide the following documents/evidence:

• proof of your identity – e.g. your passport
• if your family member has died:
  • their death certificate
  • evidence of the cause of death in the event that they died as a result of an accident at work or from an occupational disease
  • evidence of your residence in the UK
  • evidence of your family member’s residence in the UK
  • evidence of your family member’s employment or self-employment if necessary
• if you or a child you have custody of is in education in the UK
  • evidence that your EEA national family member died
  • evidence that your EEA national family member has left the UK
  • evidence that you were in education in the UK when your family member died or left the UK, and you remain in education here
  • evidence you have custody of a child who was in education in the UK when their family member died or left the UK, and they remain in education in the UK
• if you (or a member of your family) were married or in a civil partnership to an eligible EEA national (i.e. EEA retained rights of residence following divorce)
  • evidence that the marriage or civil partnership legally ended
  • evidence the marriage or civil partnership lasted for at least 3 years
  • evidence you both lived together in the UK for at least a year during the marriage or civil partnership
  • evidence you retained custody of or the right of access to the child of your ex-partner
  • evidence of difficult circumstances, e.g. if applying for retained right of residence due to domestic violence or abuse in the marriage or civil partnership (e.g. police report or court order)

ILR after Retained right of residence

We are often asked if it is possible to gain permanent residence after retained right of residence. The good news is, yes. Once in the UK with your retained right of residence EU settlement scheme family permit, you can apply to the EU Settlement Scheme (which is free) for permission to stay.

If pre-settled status is granted and you have been living in the UK for 5 years or more, you will be able to apply for full settled status, which will allow you to remain permanently. This is the same as Indefinite Leave to Remain (ILR). One year after this, you can apply for British citizenship.

How can Reiss Edwards help?

We understand the importance of securing your retained right to residence. Reiss Edwards can assist with applications for an EUSS family permit based on retained right to residence for you and your family members.

Before proceeding with your retained right of residence application, we can advise on your eligibility and recommend how to overcome any potential problems. We will ensure that the correct documents and other forms of evidence are supplied to the Home Office prior to submission. Doing so will give your retained right of residence application the best possible chance of success in the shortest possible time.

References

¹ GOV.UK: Online Application Form