We have had a number of inquiries relating to securing a UK Visa after divorce from non-EEA nationals currently residing in the UK on the basis of their relationship to an EEA national, who were worried whether they would be allowed to continue to live in the UK if their relationship broke down.

There are now a number of situations in which a non EEA national previously dependent on an EEA family member can retain the right to reside in the UK if the EEA national leaves the UK, dies or the relationship breaks down.

Visa after divorce

If a non-EEA citizen has been married to an EEA citizen for at least 3 years and they resided in the UK for at least 12 months, and both of them were working or self-employed in the UK during the divorce proceedings, then a non-EEA citizen may have retained rights of residence and can apply for further leave to remain.

Normally, the non-EEA national will be granted a 5 year residence permit which will enable them to work in the UK. Once they have completed 5 years lawful residence in the UK, they will be entitled to apply for Indefinite Leave to Remain, also known as permanent residence. This will include any periods of continuous lawful residence prior to the grant of the residence permit.

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Custody of children

If the former spouse or civil partner of the EEA national has custody of a child of the EEA national, they will have retained rights of residence and can apply for a residence permit. After the qualifying period and ensuring all correct documentation is presented, they would then be able to apply for Indefinite Leave to Remain in the UK

If they have not been granted custody but have been granted rights of access to a child of the EEA national, and the family courts have ordered that such access take place in the UK, they can apply for a residence permit.

Death of the EEA National

If the EEA national has died, a non EEA family member would retain the right to live in the UK if they had been living in the UK for at least the year prior to the EEA national’s death. The non-EEA national must themselves be employed, self-employed or self-sufficient in order to meet the requirements of the regulations.

Procedure

In order to apply for a residence card on the basis of retained rights, you must complete application form EEA2 and pay a £55 application fee, submitting evidence that the EEA national was living in the UK and was wither working, self-employed or self-sufficient.

In the case of death of the EAA national, a certified copy of the death certificate will need to be submitted as well as any evidence of the relationship such as marriage certificate or evidence of co-habitation such as joint bank account statements or utility bills.

Where the couple have divorced, a copy of the decree absolute should be submitted as evidence that the marriage has ended.