EEA Law: Retaining your Rights of Residence

November 1, 2012

Some months ago we wrote a post concerning an EEA case which looked at retained rights of UK residence for a non-EEA national following divorce from their spouse of five years.  In that particular case, it was found that the individual in question would still qualify for Indefinite Leave to Remain (ILR), since his ex-wife had been exercising Treaty rights throughout their marriage and he had been a continuous resident in the UK for 5 years.

The post attracted a large number of comments, many of which raised the same issues, and it is clearly a topic which merits further discussion.

We welcome all comments and debate on these posts, however, it is important to bear in mind that while we are happy to provide suggestions and advice where possible, we cannot advise on whether an individual case will succeed or how it should be managed without taking proper instruction first.  Our enquiries team will get back to you if you leave your name in the comments section below, or you can email them directly at [email protected].

And now let’s get back to the subject in question…

What are retained rights of residence?

The rules of Free Movement entitle nationals of the European Economic Area and certain other countries such as Switzerland to travel freely to other Member States and take up employment there, subject to certain country specific restrictions.  As part of this right, EEA nationals are allowed to take family members with them when relocating to a different EU state, regardless of whether these dependants are themselves EEA nationals.

So what rights do the accompanying non-EEA national family members possess?  Well, they do not have a free-standing right to take up residence in a European country, rather, their right to live there is dependent on the EEA national.

This being the case, in situations where an EEA national brings his or her non-European spouse to live with them in the UK, but the marriage breaks down, does this mean that the accompanying spouse is left with no rights whatsoever?  No, it is clearly not the case that the non-EEA ex-spouse will be left with no rights at all.

The Immigration (European Economic Area) Regulations 2006, Regulation 10, provides for retained rights of residence in these situations, so that the non-EEA national can continue to live and work in the UK.  It would be unduly harsh to force an individual who has been residing and working in the UK for several years to uproot their life and leave following the breakdown of their marriage.  But of course, there have to be safeguards to ensure that these rights are not abused and there are certain criteria which must be met before one can successfully secure retained rights of residence.

How can you qualify?

EEA law is notoriously complex and navigating the rules regarding retained rights of residence can be especially fraught, particularly since issues of proof and evidence frequently arise when a couple has dissolved  their relationship and do not remain on amicable terms.

Whether or not a non-EEA national can retain his or her right of residence following divorce from their sponsoring spouse is dependent on their personal circumstances.  However, the Regulations state that if the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution and both parties to the marriage had resided in the UK for at least one year during the duration of the marriage or civil partnership, the non-EEA national may qualify for retained rights of residence.

In order to satisfy the requirements of the Regulations, the non-EEA national must be living in the UK at the date of the divorce or annulment and should be:

1. Pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national; or
2. A self-sufficient person; or
3. The family member of a person in the UK who is either a worker, self-employed, or is a self-sufficient person.

It is therefore possible for a non-EEA national to retain rights of residence should their marriage break down before their five year qualifying period for settlement, or permanent residency, has been completed.  In cases where a marriage or partnership has lasted for less than three years, it may still be possible to retain residency rights if compelling reasons and evidence can be presented to the UKBA, however, retaining the right in these circumstances will clearly be much more difficult to achieve.

Retained vs Continued Rights

There is an important distinction between a person who is separated from, but still legally married to, their EEA national spouse and a person who seeks to retain a right of residence following the termination of their marriage to an EEA national.

A person who is the spouse or civil partner of an EEA national, and who separates from that EEA national but remains married to, or in a civil partnership with them, cannot retain a right of residence under Regulation 10.  They will, however, have a continued right of residence provided the EEA national spouse or civil partner continues to be a qualified person (i.e., a person exercising Treaty rights) living in the UK.

Where such a person wishes to apply for permanent residence in the UK, they would need to provide evidence to demonstrate that they had resided in accordance with the Regulations for a continuous period of 5 years. This would include evidence to demonstrate that the EEA national spouse or civil partner had been a qualified person throughout the relevant 5 year period, including during the months or years of separation.

Of course, issues frequently arise in situations such as these because it may be impossible to persuade an estranged partner or spouse to cooperate and provide necessary evidence that they have been exercising Treaty rights through demonstrating, for example, that they have been in employment throughout the 5 year period.

There are however, provisions by which a non-EEA national who is applying for permanent residency can request the UKBA to perform checks with other government departments in order to establish that the EEA national is still a qualified person.  Although these checks only take place in exceptional circumstances, it is reassuring to know that should you be unable to provide any evidence that the EEA national is a qualified person, there are other means of recourse.

We hope that this summary of retained and continued rights of residence has proved useful and welcome any feedback and discussion of the issues.