Under the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations), if you are from outside of the European Economic Area (EEA), but you are a family member of an EEA or Swiss national, you may be eligible for an EEA family permit, allowing you to reside in the UK with that person. In some circumstances, you may be eligible for ‘retained rights of residence’.
Regulation 10 of the 2016 regulations allow certain family members of EEA nationals to keep their right of residence in the UK if the sponsoring EEA national dies, leaves the UK, or divorces or dissolves their relationship with their spouse.
Family members are defined as:
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.
Regulation 10(2) of the 2016 regulations deals with retained rights of residence following the death of the sponsoring EEA national. If you wish to apply under these circumstances, you will need to show you:
Regulation 10(3) of the 2016 regulations provides a retained right of residence for direct descendants (i.e. children, grandchildren, and great-grandchildren) of:
The direct descendant applicant must have been attending an educational course in the UK immediately before the EEA national (or qualified person) died or ceased to be qualified, and they intend to continue with the course.
Regulation 10(4) states that if you are the parent of a child (and you have custody of that child) who has a retained right of residence under regulation 10(3) because they are studying in the UK, you may also be able to apply for a retained right of residence.
According to section 10(5) of the 2016 regulations, a non-EEA national spouse or civil partner of an EEA national may be entitled to a retained right of residence if their relationship ends. In addition, the family members of the former spouse or civil partner may also retain a right of residence.
As a non-EEA national, if you separate from your sponsoring EEA national spouse or civil partner, but formally remain married, or in a civil partnership, you will still be classed as a family member with the right to live in the UK. If at any time, the EEA national ceases to be a qualified person or they are no longer a permanent resident, that right of residence will be lost.
In order to retain your right of residence, you will need to show you have started formal divorce or dissolution proceedings (i.e. a request has been made by either party to the court to terminate the marriage or civil partnership).
In some situations, including cases of domestic violence, it may not be possible to provide the required evidence of the EEA sponsor. The application requirements ordinarily require a number of documents to be submitted relating to the EEA sponsor’s identity and nationality, qualified status, and permanent residence. The Home Office case officer will, in this context, use their discretion based on the facts of your case. They may request evidence in the form of details of the difficult circumstances which occurred during the relationship, in addition to court documents and police records relating to incidents of domestic violence. They will not require evidence that the marriage or civil partnership lasted for at least three years. If a court hearing relating to domestic violence is ongoing while you are applying for a retained right of residence, your immigration decision may be delayed until the court matter is concluded.
Applying for a retained right of residence can be a complex matter. If you are unsure if you are eligible, seek the guidance of immigration Solicitors who will be able to advise you and can manage the process on your behalf.
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