Understanding Retained Rights of Residence for EEA Nationals in the UK

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’.

What does a retained right of residence in the UK mean?

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 parent with custody of a child of the EEA national where that child retains the right of residence
• the former spouse or civil partner of an EEA national and has custody of a child of the EEA national
• the former spouse or civil partner of an EEA national and has the right of access to the child (under the age of 18) of the EEA national which must take place in the UK
• the family member of someone who has retained the right to reside in one of the ways specified in regulation 10

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.

Applying for a retained right of residence following the death of the EEA national sponsor

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:

• were the family member of an EEA national who was a qualified person (i.e. a worker, student, self-employed person, self-sufficient person or someone looking for work), or had a right of permanent residence when they died
• were living in the UK in accordance with the 2016 regulations for at least one year immediately before the EEA national’s death
• would be a worker, self-employed person, or self-sufficient person if you were an EEA national, or you are the family member of a person who meets this requirement.

Applying for a retained right of residence as a direct descendant

Regulation 10(3) of the 2016 regulations provides a retained right of residence for direct descendants (i.e. children, grandchildren, and great-grandchildren) of:

• an EEA national (or qualified person) with a permanent right of residence who has died
• a qualified person who ceased residing in the UK (and hence is no longer qualified)
• the spouse or civil partner of a qualified person, or an EEA national with a permanent right of residence who has died
• the spouse or civil partner of the person who ceased to be a qualified person when they stopped residing in the UK

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.

Applying for a retained right of residence if you are the parent of a child with a retained right of residence

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.

Applying for a retained right of residence in the event of divorce or dissolution

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).

What happens if you are unable to provide all of the necessary evidence to support your application to retain a right of residence in the UK?

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.

Final words

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.