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Brexit: Retained Rights of Residence

“Brexit: Retained Rights of Residence” is locked Brexit: Retained Rights of Residence

Brexit remains a hot topic for European nationals and with good reason. The UK government has announced a time frame of March 2017 for the start of formal negotiations to leave the European Union. Many European nationals are eager to know how, and to what extent, their current rights to work and reside in the UK will be protected. But what of non-EEA family members whose circumstances have change? Here we look at the Retained Rights of Residence provisions and the documents that need to be gathered and submitted to support an application to UK Visas and Immigration.

Background

The Immigration (European Economic Area) Regulations 2006, later replaced by the Immigration (European Economic Area) Regulations 2016,  sets out the rights of nationals, of the European Economic Area (EEA) and Switzerland, and their family members to enter and reside in the UK.

In order to first enter the UK, the non-EEA family member of sponsoring EEA national must apply for an EEA family permit. The exception is where the non-EEA family member holds a qualifying EEA State residence card issued in Germany or Estonia or already holds a residence permit or permanent residence card.

Once in the UK, non-EEA family members can find themselves in a vulnerable position if their circumstances change and they do not yet have permanent residence. With Brexit looming, it has become crucial than ever for such individuals protect their status.

Retained Rights of Residence categories

Regulation 10 allows EEA nationals family members that are from outside the EEA retain their right of residence in the UK if:

  • The EEA national:
    • Is deceased – regulation 10(2)
    • Leaves the UK – regulation 10(3)
    • Parent of a child who retains the right of residence: regulation 10(4)
    • Divorces their spouse or dissolves their civil partnership – regulation 10(5)
  • The family member is the parent of a child who retains the right of residence – regulation 10(4)

Regulation 10 only applies on or after 30 April 2006 and cannot be applied if the circumstances happened before that date. For example, if a person married an EEA national and subsequently divorced them before 30 April 2006 they would not be entitled to retain the right to reside.

Below we look at what each of the categories mean and list some of the key documents that must be submitted to UK Visas and Immigration when applying for retained rights of residence.

Death of the EEA national sponsor: regulation 10(2)

If the sponsoring EEA national has died, their non-EEA national family members may retain a right of residence. To do so, the following circumstances must be in place:

  • The EEA national died on or after 30 April 2006 and was a qualified person or had a right of permanent residence when they died
  • the applicant was living in the UK for at least one year immediately before the EEA national’s death as:
    • a family member of the EEA national qualified person, or
    • an EEA national with a permanent right of residence.
  • The EEA national was a worker, self-employed person, or self-sufficient person; or
  • The non-EEA national family member is carrying out activities similar to that of a qualified person and is a worker, self-employed or a self-sufficient person.

Where the non-EEA family member is a student, they must demonstrate that they are self-sufficient to fall within the provisions of regulation 10(2).

Documents

The evidence that a non-EEA family member will need to submit with their application are:

  • A valid passport
  • A valid passport or EEA ID card of the EEA national to evidence their nationality
  • Evidence of their genuine relationship to the EEA national
  • The EEA national’s death certificate
  • Evidence that the EEA national was exercising free movement rights at the time of their death
  • Evidence of the non-EEA family member’s residence in the UK for at least one year immediately before the EEA national’s death
  • That they are a worker, self-employed person or self-sufficient person or the family member of such a person
  • Where applicable, evidence of the child being educated in the UK immediately prior to the EEA national ‘s death
  • Documents showing the child’s continuing education in the UK, for example a letter from the child’s school
  • The child’s or children’s identity documents and birth certificate

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Leaves the UK – regulation 10(3)

A non-EEA national spouse or civil partner will lose their right of residence if the sponsoring EEA-national leaves the UK while they are still married or in a civil partnership. This is because they can no longer be viewed as a ‘qualified person’ exercising free movement or Treaty rights.

Where this happens, the non-EEA family member will need to demonstrate that they instead fall under fall one of the other provisions of regulation 10.

The exception is where the family member of a direct descendant of the EEA national.

Documents

Below is a guide to the documents that need to be gathered and submitted with the application.

  • A valid passport evidencing nationality.
  • Evidence of their relationship to the EEA national.
  • Proof that the EEA national has left the UK, if applicable. This can be in the form of a declaration
  • Evidence that the EEA national was exercising free movement rights prior to leaving the UK
  • Evidence of the child being educated in the UK immediately prior to the EEA national leaving the UK
  • Documents showing the child’s continuing education in the UK, for example a letter from the child’s school
  • The child’s or children’s identity documents and birth certificate.

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Parent of a child who retains the right of residence: regulation 10(4)

A non-EEA family member who is the parent of a child or children of an EEA national may retain a right of residence until the child reaches the age of 21.

It is possible for the non-EEA family member to continue their residence beyond the child 21st birthday if the child has, for instance, a severe physical or mental disability and the non-EEA national’s assistance will allow that child to continue with their education in the UK.

Documents

The evidence that a non-EEA family member will need to submit with their application for retained rights are:

  • A valid passport
  • 2 colour passport sized photographs for each person
  • Birth certificate evidencing the relationship of the non-EEA and EEA national to the child or children
  • The child’s or children’s evidence of identity
  • Evidence of the non-EEA national’s relationship to the EEA national
  • Their relationship to the EEA national
  • Their custody of the child, if appropriate. For instance, a letter that has been officially sworn by a solicitor confirming that the parent has custody.

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Divorces their spouse or dissolves their civil partnership – regulation 10(5)

Separation

Where there has been a separation, the non-EEA national will continue to be a family member with the right to reside in the UK, as long as the sponsoring EEA national continues to exercise free movement rights in the UK, or has acquired permanent residence.

Rights of residence continues until:

  • The divorce is finalised and a decree absolute is issued
  • The marriage is annulled or
  • The civil partnership is dissolved

Once the above papers have been issued, the non-EEA national’s right of residence will come to an end.

Divorce

Most of the queries I receive on retained rights of residence are from individuals whose marriage or civil partnership to the sponsoring EEA national has officially ended.

Where the relationship ends in divorce, the non-EEA spouse or civil partner will lose their right of residence if:

  • The EEA national leaves the UK while they are still married or in a civil partnership. This is because they can no longer be viewed as a ‘qualified person’), and
  • the non-EEA national does not qualify for a retained right of residence under any other part of regulation 10.

Conditions of Regulation 10(5)

To avoid this, the non-EEA spouse or civil partner, and anyone who was related to the EEA national sponsor by marriage or civil partnership, must meet the conditions of regulation 10(5) in order to retain a right of residence in the UK. Those conditions are that:

  • The non-EEA national has been married to, or in a civil partnership with, the EEA national for at least three years immediately before beginning proceedings for divorce, annulment or dissolution; and
  • Has lived in the UK with the EEA national sponsor for at least one year during the time of their marriage or civil partnership.

Documents

The evidence that a non-EEA family member will need to submit with their application for retained rights are:

  • A valid passport for the non-EEA national
  • For the sponsoring EEA national evidence of their nationality, which must be a valid passport or EEA ID card
  • 2 colour passport sized photographs
  • Evidence that the marriage or civil partnership lasting for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution
  • Evidence of the non-EEA family member and EEA national’s residence in the UK for at least one year during the marriage
  • Evidence of the termination of the non-EEA national’s relationship with the EEA national on or after 30 April 2006. This could be a:
    • Decree absolute
    • Decree of annulment
    • Certificate of dissolution
  • Proof that the EEA family member had permanent residence or had been a ‘qualified person’ (i.e. a worker, student, self-employed person, self-sufficient person or someone looking for work) in the UK

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Other factors

It is important to satisfy the conditions under regulation 10 otherwise the application for retained rights of residence may not only be refused, but their registration certificate or residence card may also be revoked.

Under the Free Movement of Persons Directive 2004/38/EC family members who have a retained right of residence do so ‘exclusively on a personal basis’. In practice, this means that the non-EEA family member cannot be the sponsor for another family member.

In their published guidance, UKVI states the following by way of an example:

‘…if a non-EEA national with a retained right of residence gets married to another non-EEA national, her new husband will not have any rights under the regulations. Her new husband would only be able to enter or remain in the UK if he qualifies under the Immigration Rules’.

It is possible for non-EEA national family members of British citizens (Surinder Singh cases) to continue to remain in the UK. However, this is beyond the scope of this article and will be covered in a separate article.

Conclusion

Non-EEA family members of EEA nationals may continue to reside in the UK under certain circumstances. The circumstances are limited and do require a significant amount of documentation to be submitted along with the application for retained rights of residence.

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Brexit Latest: Brexit and Immigration

British Citizenship Ceremonies

At the Conservative Party Conference in Birmingham on Sunday, Prime Minister Theresa May laid out her position on Brexit. Article 50, the formal mechanism for beginning exit negotiations from the European Union (EU), would be invoked by the end of March 2017.

During the negotiations, Mrs May said that immigration control, and not better trade deals, would be the priority. This was the strongest indication yet of a ‘hard Brexit’ approach, an approach that was reaffirmed by David Davis, the Brexit Secretary, who promised to not only control immigration but to ‘bring numbers down’ when he addressed the conference.

Yet, the hard Brexit approach has already began to cause some friction within in the Conservative party. There are those within (and outside) the party who would like to see the government adopt a ‘soft Brexit’ approach. One that would see access to the single market balanced with free movement of people.

Mrs May also proposed the repeal of the 1972 European Communities Act (ECA) which gives direct effect to all EU law, and spoke of the introduction of the ‘Great Repeal Bill’ which would enshrine ‘all’ EU law into UK law. She stated:

‘This historic bill, which will be included in the next Queen’s speech will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain will no longer apply from the date on which we formally leave the European Union’

Mrs May added;

‘Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end’.

The Repeal Bill’s aim to enshrine all EU laws in UK law seems at odds with Mrs May’s stance on UK sovereignty. The likely aim of the bill to provide much needed assurances to the business sector that little will change immediately post-Brexit.  

Yet, this would still provide little comfort to businesses and UK universities uncertain about not only trade but still confused as to the long term impact to European employees, workforce and students.

In fact, little information was given to recent and longer term

EU residents in the UK. Mr Davis said that the UK, during negotiations, will protect the rights of EU citizens in the UK ‘so long as Britons in Europe are treated the same way’, suggesting that there is still some way to go before EU citizens gain clarity on their longer term status.

Aside from any deals yet to be negotiated, the likelihood is that post-Brexit, EU laws enshrined in law will be diluted and amended over time. Eventually, UK courts will need to interpret immigration laws in keeping with the will of Parliament and not Europe.

For those involved in immigration, we can only hope that vital safeguards are not lost altogether. We will watch this space closely to see how things progress.