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Retained right of residence and permanent residence for non-EEA nationals

We have had a number of enquiries from non-EEA nationals wishing to remain in the UK permanently on completion of their 5 year EEA family permit, following the termination of their marriage to an EEA national. These applications are not straight forward and the Immigration (European Economic Area) Regulations 2006 have often created much confusion due to the way that the Regulations have been drafted.

Applicants need to demonstrate that their marriage has terminated; the parties must be divorced and it is not enough to show that the relationship has broken down under European law. It must be proven that the couple had been married for at least three years prior to the initiation of divorce proceedings and they had lived together in the UK for at least one year during the duration of the marriage or civil partnership.

Non-EEA nationals are also required to show that at the date of application, they are ‘exercising treaty rights in the UK’ either as a worker, self employed or self sufficient person. The difficult aspect if this application is proving that your EEA ex-spouse had been exercising treaty rights for the 5 years in question. Some marriages end acrimoniously and being able to retain documents to prove the EEA ex-spouse had been exercising treaty rights in the UK may not always be possible. However, the case of OA (EEA – retained right of residence) Nigeria [2010] UKAIT 00003, held that applicants must be able to demonstrate that his/her EEA ex-spouse had been exercising treaty rights for the 5 year period in order to qualify for permanent residence.

It is important to think about your options at this stage if your marriage has broken down and you are residing in the UK under an EEA family permit. If you are an unmarried partner and your relationship has broken down, you will not be offered the same protection as if you had been married and again, you will need to explore alternative options if you wish to remain in the UK.

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7 Responses to Retained right of residence and permanent residence for non-EEA nationals

  1. javed says:

    I am a unmarried non eea family member I have a resident card from 2010 to 2015 we lived together from 2006 could you please let me know about when I will be eligible for Permanent resident. if during this period break up with my relationship so I will can apply for Permanent resident or not.

    Please tell me with reference.

    best regards,
    Javed Nasir

    • davidsonmorris says:

      Hi Javed

      Thank you for your query.

      Unfortunately, unmarried partners of EEA nationals do not benefit from the rules relating to permanent residence based on retained right of residence in the UK. You would need to be able to show that you were married for at least 3 years to qualify for retained right of residence, as well as satisfying all other requirements under the EEA 2006 Regulations.

      Please feel free to contact us on 0845 413 7000 to discuss your options.

      Kind regards

      Rekha
      DavidsonMorris

  2. vijay says:

    I’m non-EEA family member, and married with a European girl (EEA national). We are married for last three years and living in UK for last 2 years, and now going to do divorce soon. I just need to ask, that if my wife claimed some social benefits during these three years of our marriage (not me), then does it affect (in negative way) to my application for retained the right of residence? Do I qualify to for the visa under “retained right of residence”?

    • davidsonmorris says:

      Hi Vijay

      Thank you for your query.

      In order for you to benefit under the provisions for retained right of residence, your European EEA spouse would have to demonstrate that she was exercising Treaty Rights in the UK, i.e. as a worker, student, or self sufficient person.

      In order to advise you as to your eligibility to apply under the retained right of residence provisions, please contact us on 0845 413 7000 or at info@davidsonmorris.com.

      Kind Regards

      Rekha
      DavidsonMorris

  3. vijay says:

    i’m talking about Jobseeker’s Allowance benefit.

    looking forward for reply

  4. CFS says:

    Hello,

    What is the cost to retain the right of residence? And what supporting evidence/documents are required when applying? How does one go about applying?

    Thanks

  5. Ajay says:

    Hi,
    I am an non-EU national (Indian) on tier-1 and my wife is on tier-1 dependant visa. We both are working. We were married in India and now our marriage is not working. I am due to get PR in few months and my wife is desperate to get PR. she is not interested in making family with me, just bothered about earning money and there have been heated arguments almost everyday. Please can you advise if its possible to get her dependant visa culled through legal procedure and get separated in UK itself. She has threatend me for DV law and etc. I fear from her and wants to get separate from her..

    Regards
    Ajay