Divorce and the EU Settlement Scheme: Retained Rights of Residence

A common question for those who hold Pre-Settled Status in the UK as the spouse of an EEA national is what will happen to their rights in the event of a divorce, and whether they will be eligible for Settled Status. This article will explore the provisions contained within Appendix EU of the Immigration Rules which relate to a family member’s rights in the event of divorce. 

As a starting point, it should be noted that the definition of ‘spouse of an EEA national’ is centred around the existence of a marriage between an EEA national and their family member, and a requirement that this is not a marriage of convenience. There is no requirement which mirrors that of Appendix FM to demonstrate that a relationship remains genuine and subsisting. The family relationship will therefore cease to exist, under Appendix EU, at the point of divorce. 

Appendix EU contains provisions which allow an individual to make an application on the basis of being a ‘family member who has retained a right of residence’. We address some of the main questions that might arise about these provisions below.

What period of residence do I need to demonstrate in the UK?

An applicant will need to demonstrate that they were in the UK at the date of the termination of their marriage or civil partnership. If they are applying for Settled Status, they also need to demonstrate that they have completed a continuous qualifying period of residence in the UK of 5 years or more; that is, a period of 5 years’ residence in the UK with no more than 6 months of absence in any 12 month period.

Does my EEA national former spouse need to be resident in the UK when I apply?

The rules are less clear on this point. They are clear that they require an applicant to demonstrate that they ceased to be the family member of a ‘relevant EEA citizen’ on the termination of their marriage or civil partnership. The definition of a ‘relevant EEA citizen’ sheds light on the answer to this question. 

The definition includes an EEA national who has been granted Settled or Pre-Settled Status under the EU Settlement Scheme, which has not lapsed, or been cancelled, curtailed or invalidated. However, some applicants may be in a position where their former partner never held Pre-Settled or Settled Status. They can still come within the scope of the rules, but they would need to demonstrate that their partner would have been granted such leave if they had submitted an application before 1 July 2021; and that the leave would not have lapsed, or been cancelled, curtailed or invalidated. This could require substantial evidence of their former partner’s residence. Given the potential difficulties which might arise with this following the breakdown of a relationship, the Home Office guidance does incorporate some degree of flexibility, detailed below. However, this remains a significant hurdle for applicants. The question also arises as to when an individual will stop being considered to be a relevant EEA citizen, and the impact this will have on an application.

Appendix EU states that where an individual met the definition of an ‘EEA citizen’ at the point that the proceedings for divorce were initiated, but then ceased to meet that definition, they will be considered to have remained a relevant EEA citizen until the termination of the marriage/civil partnership. This reflects the principles of retained rights under EU law which applied before the UK left the European Union and implies that an application could still be made after a former partner has ceased to meet the definition of ‘relevant EEA citizen’. However, there is some lack of clarity in the rules in these circumstances. 

Appendix EU does, as a result of the above, appear to be more generous than the EEA Regulations, which required the EEA national to be exercising treaty rights in the UK at the date of the initiation of proceedings for divorce or the termination of a civil partnership. By contrast, under Appendix EU, an EEA citizen could be outside of the UK, whilst still meeting the definition of ‘relevant EEA citizen’. However, it is important to note that this status may have lapsed, and applicants should seek legal advice to determine whether they could meet the rules on this basis in their specific circumstances.

How long do we need to have been married for?

One route to demonstrating that an applicant meets the requirements of Appendix EU is to demonstrate that, prior to the initiation of the proceedings for termination of the marriage or civil partnership, the marriage or civil partnership lasted for at least 3 years. If an applicant is relying on this provision, they will also need to show that they lived together in the UK for a continuous qualifying period of at least one year during the marriage. This is a period of at least one year, which commenced before the specified date, with no absences of more than 6 months in any 12 month period.

What are the routes if we had not been married for 3 years?

There are alternative ways of meeting the requirements. One is to demonstrate that an applicant has custody of a child of the relevant EEA citizen. Another is to show that an applicant has a right of access to a child of an EEA citizen where the child is under the age of 18 years and where a court has ordered that such access must take place in the UK.

There are also provisions which allow an applicant to provide evidence that the relationship broke down permanently as a result of domestic violence or abuse, and that the Applicant was resident in the UK when the relationship broke down permanently. The provisions also allow evidence to be provided that another family member has been the victim of domestic violence and that the applicant’s continued right of residence in the UK is warranted as a result.

What if my former partner won’t provide me with the evidence I need?

As mentioned above, a common problem applicants may face is that such applications are contingent on evidence from a former partner; and a former partner may well not be willing to assist with an application. The Home Office’s guidance does take this into account. It allows caseworkers to, for example, accept alternative evidence of the identity and nationality of the relevant EEA citizen in the case of a permanent relationship breakdown. They may also make reasonable enquiries on behalf of an applicant to obtain the required evidence where it is ‘necessary and appropriate’.

Conclusion

In some cases therefore, the former spouse or civil partner of an EEA national can apply to remain in the UK on the basis of their ‘retained rights of residence’. However, the relevant provisions contained within the Immigration Rules are complex, and lack some clarity. It may be that future litigation sheds more light on the exact implications of these provisions. In the meantime, it is important that such applications are carefully prepared and well evidenced.

Contact our Immigration Legal Advisers

For expert advice and assistance with an application to remain in the UK on the basis of a ‘retained rights of residence’, contact our immigration legal advisers in Manchester on 0161 529 7779 or complete our enquiry form.