How to Obtain Retained Rights of Residence as a Family Member of an EEA National Following the Breakdown of Marriage

By Atia Sahdat, of OTS Solicitors

Non-EEA nationals in the UK are able to reside in the UK legally as the family member of an EEA national if their spouse is an EEA-national. Non-EEA nationals will in turn acquire the right to live and work in the UK without restrictions if the EEA national continues to exercise free movement rights in the UK.

As the non-EEA national’s right to reside in the UK is derived from their marriage to an EEA-national, the non-EEA national will therefore lose the right to legally reside in the UK once the marriage has broken down; this places non-EEA family members at risk of breaching the UK immigration rules.

However, there are provisions under the immigration (European Economic Area) Regulations 2016 which could potentially allow non-EEA nationals to continue residing in the UK.

What are the requirements to make an application under retained rights of residence?

One of the first requirements is that the marriage between the EEA-national and the non-EEA national must have lasted for at least three years before the commencement of divorce proceedings. It is important, at this stage, to evidence that the EEA-national continued to exercise their treaty rights when such proceedings were initiated. However, the non-EEA national must evidence that they were exercising treaty rights at the date of applying for retained rights of residence.

A further requirement is that during the course of the marriage, the non-EEA national cohabited with the EEA national sponsor for at least one year; it is therefore vital that documentary evidence is submitted to show that the couple were living together.

The final requirement relates to proof of the breakdown of marriage/civil partnership; it is important to note that it is not sufficient to show that the relationship has merely broken down. The marriage/civil partnership must be officially terminated before an application for retained rights can be submitted to the Home Office under the immigration (European Economic Area) Regulations 2016.

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 the following documents are issued:

  • decree absolute (for marriages)
  • decree of nullity (for marriages or civil partnerships)
  • certificate of dissolution (for civil partners)

It is therefore vital that the right Immigration Solicitors are instructed to deal with an application for retained rights of residence as the instructed solicitors will also be required to provide expert advice on divorce and separation given the requirement above.

What does the divorce process entail in England?

The process involved in applying for divorce, can be complex and lengthy especially in high-net-worth divorce matters.

In order to petition for divorce, the petitioner must show that the marriage has broken down irretrievably. In order to satisfy this requirement, the petitioner must provide detailed information in a legal document referred to as a divorce petition, in order to establish that the marriage falls into one of the following five reasons:

  • Adultery
  • Desertion
  • Unreasonable Behaviour
  • 2 years separation with consent
  • 5 years separation without consent

If there are children involved in the divorce who are under 16 years of age or in full-time education, the Statement of Arrangements for children will also need to be completed. It is crucial that experienced family law solicitors are instructed to draft the Statement of Arrangements for children as the accuracy and detail of this can have a significant impact on the future of all parties involved especially where the respondent is the non-EEA family member. It is therefore always helpful if you can instruct a firm of solicitors who specialise in both immigration law and family law, especially in cases where the respondent is the non-EEA family who is dealing with high-net-worth divorce matter.

Is an application for ancillary relief necessary?

The impact of a divorce can cause instability and confusion for all parties even in the most straightforward of divorce matters, the process can become considerably more difficult to handle when advice is also required on finances and the rights of the parties in relation to the matrimonial home as well as the division of assets following divorce.

There is therefore, the option to apply for a financial order which is not only available to high-net-worth clients but to all. This process is also commonly referred to as ancillary relief which relates to the financial rights and obligations of those involved in a divorce taking place in England. Generally, there are two main financial orders that can be requested:

  • Consent order
  • Clean break order

This is a complex process which always requires legal advice and assistance from experienced family law solicitors as both orders will need to be drafted professionally by a specialist family law solicitor.

Depending on how complex the divorce matter is, it can take months to finally obtain the decree absolute and there are various deadlines that the instructed solicitors must adhere to in order initially obtain the decree nisi and thereafter apply for the decree absolute. A failure to adhere to the given deadlines can have grave consequences especially for non-EEA nationals who require the decree absolute to vary their leave to continue residing in the UK legally under retained rights of residence.

It is therefore clear that the process for both retained rights of residence and divorce is highly complex, detailed and lengthy. The solicitor instructed to deal with such matters must be highly experienced and confident in order to help achieve a positive outcome. At OTS Solicitors, we specialise in both immigration law and family law which makes the entire process extremely straightforward for our clients. We deal with both their immigration matter and divorce matter, saving them time and providing them with a peace of mind in knowing that we are taking care of both legal matters for them professionally and efficiently.

If you require advice on submitting an application to the Home Office for retained rights as well as assistance on your divorce matter, please contact our specialist team of immigration and family law solicitors on 0207 936 9960. 

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