Directive 2004/38 has incorporated ECJ case-law such as Baumbast and Diatta to allow non-EEA nationals family members to retain the right of residence.

There are now a number of circumstances in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK or dies or the relevant marriage or civil partnership is terminated These circumstances are set out in regulation 10 of the 2006 Regulations.

Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership

A person who ceases to be a family member of a qualified person on termination of a marriage or civil partnership will retain a right of residence if:

  • the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and
  • the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership, or
  • the former spouse or civil partner of the qualified person has custody of the children or a right of access to the children in the UK, or
  • there are particularly difficult circumstances (such as domestic violence) justifying the retention of the right of residence.

In such circumstances a family member retains a right of residence if:

  1. S/he is a non-EEA national but is pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national,
  2. S/he is a self-sufficient person, or
  3. S/he is the family member of a person in the UK who is either a worker, self-employed, or is a self-sufficient person.

Retention of right of residence if the EEA national dies (spouse and children)

Article 12 of Directive 2004/38 makes provision for the retention of a right of residence by family members of an EEA national if the EEA national dies. To qualify the family members must have been residing in the UK as family members of the EEA national for at least one year before the EEA national’s death and would (if s/he was an EEA national) be a worker, self-employed or self-sufficient person or the family member of such a person.

Retention of a right of residence for a child - If the EEA qualified person dies or leaves the United Kingdom

The child of either the EEA national or of the EEA national’s spouse, civil partner, former spouse or former civil partner, will retain a right of residence if:

  • s/he was attending an educational course in the UK immediately before the qualified person died or left the UK, and s/he continues to be in education.

Where a child makes an application to remain in the UK in accordance with the provisions set out in regulation 10(3), UKBA requires evidence that includes proof that the child was a family member of an EEA national who was a qualified person in the UK and was attending an education course when the qualified person died or left the UK and that the child is still in education.

A residence card should normally be issued with a validity of 5 years unless the child is nearing completion of his/her studies. In this case the UKBA may wish to limit the validity of the residence card.

A residence card issued in accordance with these provisions should be revoked in accordance with regulation 20(2) of the 2006 Regulations if the child no longer fulfils the conditions set out in paragraph 2.9., for instance, if the child leaves school.

Non-EEA national parent of a child who retains a right of residence

Where a non-EEA national spouse or civil partner, or former spouse or former civil partner, makes an application for a residence card on the basis of regulation 10(4), UKBA should be provided with evidence that includes confirmation that the child is in education in the UK. A residence card should normally be issued with a validity of 5 years unless the child is nearing completion of his/her studies. In this case UKBA may limit the validity of the residence card to the period under which the child has rights of residence (above).

A residence card issued on this basis should be revoked in accordance with Regulation 20(2) of the 2006 Regulations if the non-EEA national no longer fulfils the conditions set out above, for instance, if the child leaves school or if the non-EEA national ceases to have custody of the child.

Why Sunrise Solicitors For Retention Of Right Of Residence Application?

The immigration solicitors at Sunrise Solicitors are experts in dealing with applications for retention of right of residence. The quality of our service is self-evident from the reviews of our clients about the service provided by our immigration lawyers. You can contact us if you are seeking legal help from immigration lawyers in London in relation to your application for retaining right of residence and our immigration solicitors will provide you fast, friendly, reliable and professional immigration service.

Our Fees For An Application For Retaining Right Of Residence

  • We will charge you a fee from £1,000+VAT for our professional immigration services in relation to your application for retaining right of residence. The agreed fee will depend on the complexity of the matter and the casework involved in the matter.
  • Please be advised that VAT will not be applicable where our client does not have a valid leave to remain in the UK at the time of his/her instructions to us in relation to his/her immigration matter.
  • If you cannot afford to pay our fee in full at the time of instructing us in relation to your matter, you can pay half of the fee at the time of instructing us and rest of the fee can be paid by monthly installments.
  • The agreed fee will cover all our work until decision by the Home Office on the application. However, it is pertinent to note that the agreed fee will not cover any disbursements to be incurred by the company on your behalf e.g. translation of documents, Home Office fee etc.