Not all marriages are successful, unfortunately, and once things start going wrong the non EEA national family members of EEA nationals are confronted with a serious immigration problem. The EEA regulations have however provided a safeguard for some non EEA nationals (family members) who are able to fulfill certain requirements to be able to retain their right of residence in the UK.

There are two categories of family members i.e. Immediate Family members and Extended Family members. Following persons are considered as immediate family members of the EEA national:

• Spouse / Civil Partner
• Children under 21 years of age [including step / adopted children]
• Dependant in the ascending line i.e. parents / grandparents of the EEA national or of his / her spouse / civil partner [They need to be financially dependent on the EEA national]

Following are considered as extended family members:

• Children above 21 years of age
• Siblings
• Cousins
• Aunts
• Uncles
• Unmarried partners

All of the above mentioned family members may make an application for retention of right of residence in the UK provided they meet the specific criteria depending on the relationship with the EEA national.

A non EEA national may retain the right of his residence in the UK in the following circumstances:

1. If the marriage / civil partnership is terminated / dissolved

The basic requirements of this category is that the marriage must have lasted for at least three years and the non EEA national must have resided in the UK with the EEA national for at least one year out of the three years` time period in accordance with the EEA regulations. If these requirements are not met but the non EEA national has got the custody of the child of the EEA national, he / she may still be able to retain his / her right of residence in the UK.

In addition to that, the non EEA national must also provide evidences that he qualifies to be a worker / self employed person / self sufficient person as if he is an EEA national.

2. If the non EEA national is a victim of domestic violence

If the marriage / civil partnership has not lasted at least three years but the non EEA national has been a victim of domestic violence, he / she may be able to retain his / her right of residence in the UK. The criteria of establishing domestic violence are similar to that available under the Immigration rules. In addition to that, the non EEA national must also provide evidences that he qualifies to be a worker / self employed person / self sufficient person as if he is an EEA national.

3. If the non EEA national has got a right of access to his / her child

If the non EEA national obtains right of access to the child of EEA national and the court orders that such right must be exercised in the UK, he / she may be able to retain his right of residence in the UK. The non EEA national must also provide evidences that he qualifies to be a worker / self employed person / self sufficient person as if he is an EEA national.

4. If the EEA national dies

If the EEA national dies, the non EEA national may qualify for retention of right of residence provided he / she has resided in the UK with the EEA national for at least one year in accordance with the EEA regulations. The non EEA national must also provide evidences that he qualifies to be a worker / self employed person / self sufficient person as if he is an EEA national.

5. If he is a child (in full time education) of the EEA national or his spouse and the EEA national either dies or leaves the UK

A child of the EEA national or his / her spouse may also retain the right of his residence if the EEA national dies or leaves the UK. The only requirement is to provide evidence that the child was in full time education at the time of death of the EEA national or when the EEA national left the UK. The non EEA national parent of the child (having custody) may also qualify for retention of right of residence in line with the fact that the child has retained right of residence.

Once the application for retention of right of residence is approved, the applicant is given a residence card for five years and upon completion of the five years, he / she may make an application for permanent residence under the EEA regulations. Any time period spent as a family member of the EEA national prior to retaining their right of residence, can be combined to make up total five years of residence, to qualify for permanent residence.

Retention of right of residence applications under the EEA regulations are often quite complex and we strongly advise you to take professional representation and leave this matter in our capable hands.

At Nasim and Co Solicitors, we offer our expertise of advising and representing our clients in making their applications for retention of rights of residence. We have got extensive experience of handling complex immigration casework and can advise on all sorts of immigration matters. 

You can contact us at 02085528612 or info@nasimandcosolicitors.com and one of team members will be in touch with you shortly.