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 of 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  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.