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 or not they would be allowed to continue living 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, provided specific criteria is met.

Visa after divorce

If a non-EEA citizen has been married to, or has been in a civil partnership with an EEA citizen for at least 3 years before the divorce or dissolution proceedings were initiated and they cohabited with the EEA partner in the UK for at least 12 months during their relationship, provided the EEA national was exercising treaty rights in the UK during the 3 year period, the non-EEA Family Member may be eligible to apply for a Retained Right of Residence.

A non-EEA national may be granted a 5 year residence permit which would enable them to work in the UK. Once they have completed a total of 5 years lawful residence in the UK under EEA Regulations, they would be eligible to apply for Permanent Residence. This may include any periods of continuous lawful residence acquired under the EEA Regulations prior to the grant of the residence permit, based on a Retained Right of Residence.

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Custody of children

If the former non-EEA national spouse or civil partner of an EEA national has custody or a right of access to a child they have had with the EEA national, they may be eligible to apply for a Retained Rights of Residence on this basis.

After the non-EEA national has resided in the UK for a total of 5 years under the EEA regulations, they may be eligible to apply for Permanent Residence.

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 EEA (FM) – new forms were introduced in January 2015. You must pay a £55 application fee (for a single applicant) and submit the mandatory evidence (to demonstrate your relationship with the the EEA national and break down of the same, evidence of the EEA national exercising treaty rights in the UK and that you were cohabiting for the 12 months within the 3 years you were in a relationship for) and the specified evidence for the application, for example if the EEA national has died, a certified copy of the death certificate should be included.

If the relationship has broken down acrimoniously, the biggest hurdle many of our clients have is securing the cooperation of their EEA national family member, to provide the original evidence to support their Retained Right of Residence Application. The Home Office don’t exercise much sympathy with applicant’s who claim to meet the requirements of their application, but are not been able to provide evidence to support their claim because of the nature of the breakdown of their relationship and subsequent refusal of the EEA national to provide any of the original mandatory evidence, such as their wage slips or bank statements if they were employed.

Whenever there is a change of circumstances, we always take client’s through the different options available. It might be that an application based on their employment or a new relationship may carry more weight than a Retained Right of Residence.