Retained rights of residence

Retained rights of residence

It is possible to apply for the EEA family permit (if the applicant is outside the UK) or a Residence Card (in the applicant is in the UK) if you previously had a right to reside in the UK as the family member of an EEA national who either:

• had permanent right of residence in the UK
• was a ‘qualified person’ (a worker, student, self-employed person, self-sufficient person or someone looking for work) in the UK

You could have a retained right of residence if:

• your, or another member of your family marriage or civil partnership to that person has ended (with a divorce, annulment or dissolution);
• that person has died and you had lived in the UK for at least 1 year before they died;
• you’re the child of an EEA national who has died or left the UK, or the child of their spouse or civil partner, or former spouse or civil partner, you were in education when that person died or left the UK, and you continue to be in education;
• you’re the parent and have custody of a child who has a retained right of residence because they’re in education in the UK;

There are other requirements to be considered, however this depends on a case-to case basis, it is best to seek a professional immigration advice providing full information of your personal circumstances.

The list of required documents for these applications will depend on the personal circumstances of the applicant, however we can identify a few of them:
• evidence of relationship to the EEA national, such as a marriage certificate, civil partnership certificate, birth certificate or proof that you’ve lived together for 2 years if unmarried;
• proof of your EEA national’s identity and nationality, such as a passport, identity card or a previous family permit or residence card;
• proof that your family member had permanent residence or had been a ‘qualified person’ (a worker, student, self-employed person, self-sufficient person or someone looking for work) in the UK;
• if a marriage or civil partnership to the EEA national has ended, such as a divorce certificate;
• if the EEA family member has died, then a death certificate will be required;
• if you, or a child in your custody, was in education when your family member died or left the UK and continues to be in education, a letter from the school confirming this is required;
• if you have custody of a child of your family member, you will need to provide a court order confirming this;
• if you or a family member were a victim of domestic violence, you can provide a social services report, police report as well as a letter from a doctor confirming any physical or mental abuse.

It is now best to apply using the new EU Settlement Scheme under Appendix EU of the Immigration Rules. This route is much easier and quicker than the EEA Regulations 2016.

The application is filled and submitted online for both, the Family Permit and the Residence card. All documents are uploaded online after the application is submitted.

The applicant normally receives a decision within 1 to 3 months. Family Permit should be converted to a 5-year residence Card upon arrival to the UK.

Fees:

Family Permit is free under EEA Regulations 2016 as well as under the new EU Settlement Scheme. The application for a Residence card on arrival to the UK is £65 under the EEA Regulations 2016 and free under the EU Settlement Scheme.

If the applicant already holds BRP (Biometric Residence Permit visa), then no new BRP will be issued. The applicant will receive an electronic notification of their status.

Additional requirements for family members who divorced the EEA national or ended a civil partnership with them:

The application can be made only from the UK. The applicant will need to show that he/she was in the UK as the EEA national’s family member on the date the divorce was finalised or civil partnership was ended and one of the following applies:

• the marriage or civil partnership lasted at least 3 years before legal proceedings began and the couple lived in the UK for at least 1 year before the divorce, annulment or dissolution was finalised
• the applicant has the custody of a child of the relevant EEA national
• the applicant has access rights to a child of the relevant EEA national, provided the child is under 18 and a judge has ordered that access must take place in the UK
• the applicant has been a victim of domestic violence during the marriage or civil partnership, or there are other particularly difficult circumstances which justify retaining the right of residence

Please note that one of the main advantages of the application under the new EU Settlement Scheme under Appendix EU is that an applicant who has been married to the EEA national for at least 3 years before their divorce, does not need to provide extensive evidence of cohabitation and other information about the EEA national. The only required documents are the divorce certificate as well as a proof of identity and nationality of the former spouse (EEA national).