Applying for Retained Right of Residence

If you previously had the right to reside in the UK as the family member of a national of the European Economic Area (EEA) or Switzerland but, for example, you are recently bereaved, divorced or your EEA national sponsor has left the UK, you will need to ascertain if you have a retained right of residence.

With retained right of residence, you can apply to remain in the UK under the EU settlement scheme,

As such, you will need to apply under the EU Settlement Scheme to continue living in the UK after 30 June 2021, although it is free of charge to apply. The scheme is already open, with an application deadline date of 30 June 2021. If the UK leaves the EU without a deal, you will need to apply by 31 December 2020.

What is retained right of residence?

Under the Immigration (European Economic Area) Regulations 2016, certain family members of EEA or Swiss nationals who are exercising their rights to free movement in the UK may be permitted to join or accompany that person to Britain.

The 2016 regulations go on to provide that certain family members who are already living in the UK can retain their right of residence in certain circumstances. This includes, but is not limited to, where the EEA or Swiss national sponsor dies or leaves the UK, or where the parties get divorced.

Swiss nationals are included in the definition of EEA nationals under the regulations, whereby their family members are considered as if they were family members of EEA nationals.

What does a retained right of residence allow?

The retained right of residence means that qualifying family members are able to continue living in the UK on a lawful basis without their EEA national ‘sponsor’. However, an individual who qualifies for this right does so exclusively on a personal basis, and so cannot be the sponsor for another family member.

By way of example, if you are a non-EEA divorcee living in the UK under a retained right of residence and go on to marry another non-EEA national, your new spouse will not have any right to reside in the UK under the regulations. In these circumstances, they would only be able to enter or remain in the UK where they are eligible to do so under the UK Immigration Rules.

Who qualifies for a retained right of residence?

Regulation 10 of the 2016 regulations provides that certain family members of EEA nationals who are already living in the UK can retain their right of residence in the following circumstances:

• When the EEA national dies
• When the EEA national leaves the UK
• When the EEA national divorces their spouse or dissolves their civil partnership, or the marriage or civil partnership is annulled
• Where the family member in question is the parent of a child who retains the right of residence

However, even where you satisfy one of the statutory conditions set out above, you may have already acquired a right of permanent residence under regulation 15 of the 2016 regulations.

In particular, regulation 15 provides that you will have a right of permanent residence if you are either an EEA national, or a non-EEA family member of an EEA national, and you have lived in the UK for a continuous period of five years and in accordance with the regulations.

What are the requirements for a retained right of residence?

For each of the four eligible scenarios, the following statutory requirements must be met:

Your EEA national sponsor is deceased
You may qualify for a retained right of residence following the death of your EEA national sponsor under both regulations 10(2) or 10(3) of the 2016 regulations.

To qualify under regulation 10(2) you must be able to satisfy all of the following conditions:

• You were the family member of an EEA national who was a qualified person or had a right of permanent residence when they died, and
• You were living in the UK in accordance with the regulations for at least one year immediately prior to your EEA national sponsor’s death, and
• You would be a worker, self-employed person or self-sufficient person under the regulations if you were an EEA national, or you are the family member of a person who meets this requirement.

The last condition requires you to be undertaking activities similar to those of a qualified person. Although the regulations define a “qualified person” as a worker, self-employed person, self-sufficient person, job seeker or student in the UK, you will not satisfy the statutory condition as either a jobseeker or student unless you have enough resources to be self-sufficient.

You must also remain a worker, self-employed person or self-sufficient person to continue to retain your rights and in order to acquire settled status.

Under the regulations a “family member” is defined as either a spouse or civil partner of the relevant EEA national, or a child or grandchild of that person, either under the age of 21 or dependent, or a child of their spouse or civil partner. It also includes a dependent parent or grandparent of the EEA national, or of their spouse or civil partner.

In contrast, to qualify for a retained right of residence following the death of your EEA national sponsor under regulation 10(3), you must be able to show that either you are:

• A direct descendant, namely a child, grandchild or great grandchild, of a qualified person or an EEA national with a right of permanent residence who has died, or
• A direct descendant of the spouse or civil partner of a qualified person or an EEA national with a right of permanent residence immediately preceding that person’s death.

In either case, you will also need to show that you were attending an educational course in the UK immediately before the relevant EEA national died, and you continue to attend this course.

However, as a direct descendant, any retained right of residence will end as soon as you finish your education or you gain the right of permanent residence.

Your EEA national sponsor leaves the UK
You may also be eligible for a retained right of residence under regulation 10(3) of the 2016 regulations if your EEA national sponsor leaves the UK. To qualify here, you must be able to show that either you are:

• A direct descendant of a person who ceased to be a qualified person on ceasing to reside in the UK, or
• A direct descendant of the spouse or civil partner of the person who ceased to be a qualified person on ceasing to reside in the UK.

Again, in either case, you will need to show that you were studying as part of an educational course in Britain immediately before the qualified person ceased to be qualified. You must also continue to attend this course.

Equally, any retained right of residence will end as soon as you finish your education or you gain the right of permanent residence.

You are the parent of a child with a retained right of residence
As the parent of a child of an EEA national, you can also retain a right of residence in certain circumstances under regulation 10(4). To qualify here, you must be able to satisfy the following conditions:

• You are the parent, and have actual custody, of a child who has a retained right of residence under regulation 10(3), namely, because they are in education in the UK, and
• Your child is under the age of 21, save except where they need you to stay in the UK in order to allow them to complete their education.

Your relationship with your EEA national sponsor ends
In circumstances where your relationship with your EEA national sponsor officially comes to an end, namely, by way of divorce, annulment or dissolution of your civil partnership, you may retain a right of residence under regulation 10(5) of the 2016 regulations.

To qualify under regulation 10(5) you must be able to satisfy the following:

• You cease to be a family member of a qualified person or EEA national with a right of permanent residence on the termination of your marriage or civil partnership, and
• You were living in the UK in accordance with the regulations at the date of the divorce, annulment or dissolution of the civil partnership, and
• You would be a worker, self-employed person, or self-sufficient person under the regulations if you were an EEA national, or you are the family member of a person who meets this requirement.

You will also need to show either that:

• Prior to the initiation of the proceedings for divorce, annulment or dissolution of the civil partnership, the marriage or civil partnership had lasted for at least three years, and you and your spouse or civil partner had lived in the UK for at least one year during this time, or
• You have custody of a child of a qualified person or EEA national with a right of permanent residence, or
• You have the right of access to a child of a qualified person or EEA national with a right of permanent residence, where the child is under the age of 18 and where a court has ordered that such access must take place in the UK, or
• Your continued right of residence in the UK is warranted by particularly difficult circumstances, such as where you or another family member has been a victim of domestic violence whilst the marriage or civil partnership was subsisting.

There may also be other difficult circumstances that justify the retained right of residence, although this will be dealt with on a case-by-case basis.

Your marriage or civil partnership will be regarded as having been officially terminated on the date that either the decree absolute, decree of nullity or certificate of dissolution is issued.

In circumstances where you separate from your spouse or civil partner, you will remain a family member with the right to live in the UK for as long as you are married to, or in a civil partnership with, an EEA national sponsor. That said, to retain your right to reside in the UK, your spouse or civil partner must continue to exercise free movement rights or have a right of permanent residence.

Applying for retained right of residence

To apply for a retained right of residence you should submit an application by post using Form EEA(FM). You will need to provide two passport size colour photographs, a fee of £65, together with your supporting documents. As a non-EEA applicant, you may also need to enrol your biometric information at an additional cost of £19.20.

The nature of the documentation to be submitted in support of your application will depend on the basis upon which you are applying. By way of example, where you are applying under regulation 10(2), in circumstances where your EEA national sponsor has died, you will need to provide originals of the following:

• A valid EEA national ID card or passport issued by an EEA state of the deceased EEA national sponsor
• A valid national identity card or passport for yourself
• The EEA national’s death certificate
• Evidence of your relationship to the EEA national, such as a marriage certificate
• Evidence the EEA national was exercising free movement rights at the time of their death, or had permanent residence
• Proof of residence in the UK as the family member of the EEA national for at least one year immediately before their death
• Proof that you are a worker, self-employed person or self-sufficient person, or the family member of such a person.

Upon receipt of your application and supporting documentation, a decision can take up to six months to process.

Need assistance?

Retained right of residence 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. One 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.

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.

DavidsonMorris are UK immigration specialists. If you have a question about your eligibility for retained right of residence, or would like advice on alternative UK immigration or settlement options, contact us.