A non-EEA national is generally able to remain in the UK legally if it can be demonstrated that the non-EEA national is the family member of an EEA national. One of the ways in which a non-EEA national can be classed as a family member of an EEA national is if he/she is married to an EEA national.
Consequently, non-EEA nationals will acquire the right to work and reside in the UK legally without any restrictions. However, this will only be applicable if their EEA national spouse exercises their treaty rights. It should be noted that a non-EEA national will lose their legal right to work and reside in the UK if their marriage to an EEA national comes to an end. This is because the rights acquired by a non-EEA national derives from their marriage to an EEA national. As such, if there is no longer a marriage in existence, the non-EEA national’s rights under the European regulations also ceases. This will therefore, leave non-EEA nationals in a difficult predicament as they will be at risk of breaching UK Immigration Rules.
As a result, the Immigration (European Economic Area) Regulations 2016 provides relevant provisions for non-EEA nationals to rely upon following the breakdown of their marriage to an EEA national. Regulation 10 of the Immigration (European Economic Area) Regulations 2016 allows non-EEA nationals to remain in the UK following the breakdown of their marriage by making a successful application for retained rights of residence. This application allows a non-EAA national to keep the rights he/she acquired through their marriage to an EEA national; a successful application for retained rights of residence permits the non-EEA national to continue legally residing and working in the UK.
What are the requirements for making an application for retained rights of residence?
The aforementioned regulation stipulates that a non-EEA national who ceases to be a family member of an EEA national due to divorce, annulment or a dissolution will initially be required to demonstrate that at the time of the termination of the marriage or civil partnership, the EEA national was a qualified person. An EEA national is considered to be a qualified person if he/she is a worker, self-employed, student or self-sufficient person; in other words, the EEA/Swiss nationals must be exercising Treaty rights.
The second requirement is that at the time of the termination of the marriage or civil partnership, the non-EEA national was residing in the UK in line with the relevant regulation and that he/she is a family member of a qualified person in the UK.
Further to the above, it must also be shown that the non-EEA national’s marriage to an EEA national lasted for a minimum of three years immediately before termination proceedings commenced. In addition, it must also be demonstrated that the non-EEA national and EEA national cohabited for at least one year during the course of their marriage. It is extremely important to note that applicants must evidence that the marriage/partnership has terminated and not that the marriage has merely broken down.
Under regulation 10(5) of the Immigration (European Economic Area) Regulations 2016, a marriage/civil partnership will be deemed to have been terminated on the date that either the:
- decree absolute was issued; or
- decree of nullity was issued; or
- certificate of dissolution was issued
If you are intending on commencing divorce or dissolution proceedings, it is imperative that competent and experienced family law solicitors are instructed. RVS Solicitors specialises in family and immigration matters and have acquired extensive expert knowledge due to having dealt with highly complex legal matters within both sectors for many years. Please contact us and a member of our specialist immigration and family team will fully assess your matter with you.
Additionally, for a non-EEA national to meet the requirements of retained rights of residence, it must be evidenced that he/she was exercising treaty rights at the time of applying for retained rights of residence. In circumstances where the non-EEA national is not exercising treaty rights as he/she is either a student or jobseeker, then it must be demonstrated that the applicant is self-sufficient. This means that the non-EEA national must have sufficient resources to maintain and accommodate themselves without assistance from the state.
Will I be required to submit supporting documents with my application?
A significant aspect of the application relies heavily upon submitting the correct and necessary supporting documents. The Home Office guidance policy expressly confirms the necessary supporting documents required to make a successful application for retained rights of residence. Consequently, where an applicant fails to provide the necessary documents, the application will be refused.
As a guideline, the applicant is required to provide evidence that he/she is a family member of an EEA national as well as evidence of their identity. Further to this, the applicant will be expected to provide substantial evidence demonstrating his/her relationship with the EEA national by either submitting the decree absolute, decree of annulment or certificate of dissolution and the original marriage certificate. There is an array of other documents that must be provided depending on the circumstances of each case. Contact us today for a brief discussion on your matter and we can guide you through the entire application process in detail.
As briefly mentioned, it is extremely important that during the marriage, the EEA national spouse was exercising treaty rights and it is equally as important that the non-EEA national exercises their treaty rights at the time of submitting an application. Thus, the relevant financial documents must be provided in order to demonstrate that both requirements are met.
It is clear that an application for retained rights of residence requires expert advice from an immigration and family law perspective. We can provide professional and accurate advice on immigration matters and family matters to help clients achieve the desired outcome in a competent and timely manner. Instructing experienced solicitors whom are able to provide legal assistance on both matters will award you with a peace of mind and confidence that your matter is dealt with appropriately and professionally without delay. Please contact us today if you require specialist family and immigration law solicitors to assist you in resolving your legal matter.