Will I be able to remain in the UK after separating from my EEA national spouse?

By Dr Lusine Navasardyan

Dr Lusine Navasardyan is Director and Head of Corporate and Business Immigration at RVS Solicitors. Dr Lusine studied at Yerevan State University and the Bucharest University of Economic Studies. She is also a published author and a member of the Bucharest Bar. As a Director of RVS Solicitors, she is instrumental to the operation of the law firm, and as Head of Corporate and Business Immigration, she helps our clients to forge new futures in the UK.

In this article we will cover the options available to those who are in the UK as a spouse of an EEA national and are undergoing divorce proceedings or have already concluded it.

We routinely work with our colleagues from Family law department to design the best solutions for our clients who found themselves in a situation where their family life has irrevocably broken down and they are facing added uncertainty of whether they will be able to continue living in the UK following the dissolution of their marriage.

RVS is ideally positioned to tackle such issues as we are able to offer a holistic approach to the problem. We have highly specialised departments for both – Immigration and Family proceedings. This allows us to assess and address all the issues in a timely manner and advise the clients accordingly. Unlike the firms that either specialise in one area or another, or offer services in many disciplines without specialising in any, we are able to offer specialist services in both disciplines, while working in tandem with our colleagues from the other department to address the complex multidisciplinary issues faced by those who find themselves in need to come out of a relationship that has been the reason for them to immigrate to the UK.

This article will deal only with those who are in the UK as a family member of an EEA nationals. We have addressed the options available to those in the UK on a spouse visa in a separate post here.

CONTACT US if you need help with securing your stay after a divorce or you are contemplating a divorce or separation while in the UK on the basis of your relationship to your EEA national spouse or partner. 

Word of caution

There are two significant aspects that need to be taken into account before any discussion about the rights of remaining in the UK of EEA national family members after the relationship has broken down.

First to qualify for any protection under EEA Regulations there must have been a marriage or civil partnership. A simple partnership does not qualify the person as a family member of an EEA national and does not offer them the same protection. Partners of EEA nationals are considered to be extended family members and not family members and only family members are entitled to protection after the breakdown of the relationship.

The second significant aspect is the status of an EEA national in the UK. Holding an EEA nationality is not sufficient to confer any rights on the family member after a divorce. The EEA national should be a qualified person, this means exercising treaty rights either by working, being self-employed, a student or self-sufficient.

The retained rights

The main venue for a family member of an EEA national to continue residing in the UK is what is known as retained rights of residence. The requirements to retained rights are as follow:

1. As explained above one of the principal requirements is that there should have been a marriage or a civil partnership;
2. The marriage or the civil partnership should have subsisted for at least 3 years immediately before the termination proceedings were started;
3. The couple has resided as such in the UK for at least one year during the time of their marriage or civil partnership;
4. The EEA national was either a qualified person, as per the criteria illustrated above or had already acquired Permanent Residence;
5. The non-EEA national migrant was residing in the UK in accordance with the Regulations, which in effect means they were in the UK as a family member of their EEA national spouse and
6. They were either working, were self-employed or self-sufficient prior to the termination.

It is important to note that the marriage or civil partnership needs to have been terminated before the non-EEA family member can apply for the retained rights. This means there must be a dissolution or annulment and official documents attesting the same must be issued. These can be:

1. Decree absolute;
2. Decree of nullity
3. Certificate of dissolution

CONTACT our Family department if you need help with starting divorce or dissolution proceedings.

It is therefore important to finalise the divorce or civil partnership dissolution proceedings before applying for retained rights. Another important point to remark is that because until the relationship is officially and legally terminated, the non-EEA family member continues to be treated as a family member no matter if the relationship has broken down. This means they are allowed to remain in the UK under the same conditions as before. This might seem an ideal situation for many, however, there are hidden dangers. The EEA national must continue to be residing in the UK as a qualified person for the non-EEA national spouse or civil partner to continue having the rights under the EEA Regulations. Therefore, once the spouses become estranged, it is possible that the non-EEA national will not have any control or knowledge whether they continue to exercise treaty rights or are even in the UK. This can mean that the non-EEA national might inadvertently become an overstayer. It is therefore essential that you consult with Family and Immigration lawyers as soon as there is a breakdown in a relationship.

The involvement of family lawyers from the very beginning is also extremely important from the perspective of securing the required evidence for the non-EEA national’s to be able to apply for retained right of residence.

We have shown above what the requirements are for the retained rights, part of which is to be able to show that the EEA national was exercising treaty rights. In many cases the applications are refused because the applicant was not able to secure such evidence. It is always possible to put pressure on the Home Office to access the HMRC database and take the required information from there, however it will not always be the ideal solution. In many cases while the couple is going though the divorce proceedings, it is possible to negotiate for the EEA national spouse to provide the required evidence to the non-EEA national spouse for their application. Therefore, an implication of a family lawyer together with a support from specialist immigration lawyer is essential.

Parent of an EEA national

If for whatever reason the non-EEA national does not qualify for retained rights as a spouse or civil partner of an EEA national, they might qualify for a right to remain as a parent of an EEA national. This route, however is very limited. In all cases it will only suitable for primary carers of the child and take into account the child’s best interest and whether requiring them to leave the country will force the child to leave as well.

There possible also might be solutions under Immigration rules. Under Immigration routes, there are numerous routes that a person might qualify for depending on their country of origin, the reason for wishing to remain in the UK and other circumstances. It is therefore essential to have your situation assessed in detail as soon as it is becoming apparent that the relationship is not as strong as it used to be and the breakdown is imminent or even likely.

RVS Solicitors are an innovative London law firm specialising in all Family and Immigration matters offering expert advice to public. We come highly recommended by our clients and other legal professionals. To speak to one of our specialist Immigration or Family and Divorce lawyers please CONTACT US or call us on 020 3372 5125.