EEA Retained Right of Residence

EEA Retained Right of Residence
EEA Retained Right of Residence

What is EEA Retained Rights of Residence?

 

The European Economic Area Family Permit (EEA Family Permit) allows persons who:

  • are from outside the European Economic Area (EEA) and
  • are family members (or extended family members) of an EEA or a Swiss citizen

to come to the United Kingdom. [1]

The EEA permit is free to apply for and makes it not only easier but quicker to enter the United Kingdom. Without one it is possible that your entry to the country may be refused. The EEA permit is valid for a period of six months and you will be able to leave and return to the U.K. as many times as you wish within this period.[2]

However when your EEA permit expires, you may be still able to remain in the U.K. One of the ways that someone may be eligible for an EEA Family Permit is with a Retained Right of Residence which gives you the right to remain in the United Kingdom even if your EEA national family member dies, leaves the U.K. or is no longer your spouse or partner. The Retained Right of Residence will not only confirm your right of residence in the United Kingdom but it will render it easier for you to prove your eligibility to continue living and working in the U.K.[3]

 

Why would you need Retained Rights of Residence?

Firstly in order to qualify for applying for the Retained Rights of Residence, you must first have had the right to reside in the U.K. as a family member of an EEA national.[4]In addition, the latter should have:

  • the right of permanent residence in the U.K. or
  • be a qualified person in the U.K. A qualified person may be a worker; a self-employed person; a student; someone who is looking for a job, or a self-sufficient individual.[5]

You may need the Retained Rights of Residence if:

  1. the EEA national family member on whom your EEA family permit was based dies and you had lived in the United Kingdom for at least a year before their death[6]
  2. your marriage or civil partnership to the EEA national family member comes to an end through divorce (for marriages), dissolution (for civil partnerships) and nullity (for marriages or civil partners). The termination of the relationship is determined based on the date that these official documents are issued. It is very important that the relationship should have been terminated on a date after 30thApril 2006. If it was terminated before then sadly you will not be able to retain your right of residence. In addition, the marriage or the civil partnership must have lasted for at least three years before the official proceedings of separation commenced. Also you should have lived in the U.K. for at least one year as a married couple or partners.[7]

It should be noted, that for you to be able to retain your right of residence, the ex-husband or partner must continue having a permanent residence right or exercising his or her free movement rights. However, if your relationship has not officially ended and the EEA national sponsor stops being a qualified person or loses the right of permanent residence, you will lose your residence permit as well.[8]

Finally, your right of residence in the U.K. may be warranted due to particularly difficult situations, for example if you or another family member were victims of domestic violence while your marriage or civil partnership was still ongoing.[9]

  1. the EEA national family member leaves the U.K.[10]
  2. you are the child of the EEA national family member who left or died, or of their spouse or civil partner and you were in school or university when he left or died and continue to be education.[11]
  3. you are the parent or have the custody of a child who has a Retained Right of Residence because they are still in school. As a parent, you will be able to retain the right of resident for as long as the child retains its own right or until the child reaches the age of 21 or until you no longer have custody of the child or if, finally, you gain the permanent residence permit. Regarding the requirement of the child reaching the age of 21, there can be an exception if the child still requires its parent in order to complete its education.[12]

 

In any case, a very significant requirement for you to be to retain the right of residence is that you must be undertaking similar activities to the sponsor. That means that you should be a worker, self-employed or self-sufficient, and remain as such in order to qualify for the permanent resident right.[13]

 

How does one apply Retained Rights of Residence?

In order to apply for the Retained Rights of Residence, you need the following[14]:

  • a valid passport.
  • two colour photographs (passport size).
  • proof of your relationship with your EEA national sponsor. For instance, this could be a birth certificate, a marriage certificate, a civil partnership certificate or, if unmarried, proof that you have been living together for two years.
  • evidence proving your family member’s identity and nationality. This could be an identity card, a passport or a  previous residence permit card.
  • evidence that you EEA family member is a qualified person or has a permanent residence. As previously noted, to constitute a ‘qualified person’, the individual needs to be a worker, self-employed, a job seeker or else self-sufficient. [15]

 

You must also provide proofs of the following, but ONLY if they are relevant for your application[16]:

  • of the termination of your marriage or civil partnership to the EEA national by providing your divorce or annulment certificate.
  • of the death of your EEA family member by providing a death certificate.
  • of the departure of your EEA family member from the U.K.
  • of the fact that either you or the child whom you have the custody of were in school when the EEA family member died or left the U.K. and are continuing your education. You will need to provide a letter from the school or university.
  • of the custody of your child or of the child of a family member by providing a court order.
  • of being a victim of domestic violence by proving a social services report or injunction [17].

 

Please note that in case that any of the required documents are not in English or in Welsh, you need to provide a certified translation of these.

You can find a more detailed guide to the necessary supporting documents here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/261446/eea-family-permit.pdf

 

In order to apply for the Retained Rights of Residence, you need to follow the usual EEA Family Permit Process.

 

What are some notable cases?

A very significant case on the topic of the Retained Rights of Residence is Singh and Other (2015), which concerned three individuals who resided in Ireland as family members of E.U. (EEA) spouses who were exercising their free movement of people rights.  The main question for the CJ. was what would be the position of the non-E.U. family member who got a divorce that preceded the departure of the spouse from the E.U. (EEA) state.[18]The CJEU decided that the right of the non-E.U. citizens to live in the E.U. (EEA) state stemmed from the fact that their spouses or partners were exercising their free movement rights.[19]So it was implicit that the right of residence could only be retained if the E.U. national spouse or partner resided in the host Member State on the date that the divorce proceeding started. [20]

Another significant case pertaining to Retained Rights by non-EEA citizens is OA (EEA- Retained Rights of Residence) Nigeria. The claimant initially entered the U.K. by requesting asylum going on to marry a French national one year later, subsequently applying for a residence permit as the spouse of an EEA national. In 2003, she was granted this permit and, in 2008, she applied for a permanent residence card while stating in her application that her spouse had left the conjugal home and that she had initiated divorce proceedings.[21]The CJEU decided that the non-EEA applicant must demonstrate that their EEA-national ex-spouses had exercised their treaty rights for five years in order for them to qualify for a permanent residence themselves. [22]

As is evident from the cases shown above, the Retained Rights of Residence is inextricably linked to European Union law. Most cases deal with divorced couples and the protection available to the non-EEA spouse. Unfortunately, such protection is not provided to non-married couples, and if you belong to this category you would be advised to seek advice from an experienced solicitor who may be able to suggest alternative legal options for obtaining the permanent residence card.

 

 

 

 Works Cited

[1]Gov.uk, ‘Apply for an EEA family permit from outside the UK’ (Gov.UK, 2018 ) <https://www.gov.uk/family-permit> accessed 5 May 2018.

[2]Ibid.

[3]Ibid.

[4]Gov.uk, ‘Retained rights of residence’ (Gov.UK, 2018 ) <https://www.gov.uk/family-permit/retained-rights-of-residence> accessed 5 May 2018.

[5]Ibid.

[6]Ibid.

[7]Home Office, ‘Free Movement of Rights: retained rights of residence ‘ (Home Office , 7 February 2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/590102/Family-members-of-EEA-nationals-who-have-retained-the-right-of-residence-v3_0.pdf> accessed 5 May 2018.

[8]Ibid.

[9]Ibid.

[10]Gov.uk, ‘Retained rights of residence’ (Gov.UK, 2018 ) <https://www.gov.uk/family-permit/retained-rights-of-residence> accessed 5 May 2018.

[11]Ibid.

[12]Ibid.

[13]Home Office, ‘Free Movement of Rights: retained rights of residence ‘ (Home Office , 7 February 2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/590102/Family-members-of-EEA-nationals-who-have-retained-the-right-of-residence-v3_0.pdf> accessed 5 May 2018.

[14]Gov.uk, ‘Retained rights of residence’ (Gov.UK, 2018 ) <https://www.gov.uk/family-permit/retained-rights-of-residence> accessed 5 May 2018.

[15]Ibid.

[16]Ibid.

[17]Ibid.

[18]Case C-218/14 Singe and Others v Minister of Justice and Equality [2015]

[19]Ibid.

[20]Ibid.

[21]OA (EEA – retained right of residence) Nigeria [2010] UKAIT 00003

 

[22]Ibid.

Article by Elizabeth Ntilo