Retianed Right of Residence came into being when Directive 2004/38 incorporated ECJ case-law such as “Baumbast and Diatta” to allow non EEA national family members to retain right of residence if the EEA national leaves the UK or dies or their marriage or civil partnership is dissolved.
Those who have retained right of residence in the UK are eligible to apply for an EEA Residence Card in the following circumstances set out in regulation 10 of the EEA Regulations 2006.
Retained Rights following Divorce/Dissolution
Your marriage or civil partnership to an EEA citizen has ended as a result of divorce, annulment, or dissolution.
In order to have retained rights of residence, the marriage or civil partnership must have lasted for at least three years before the divorce proceedings started; and of that 3 years, the couple must have lived together in the UK for at least one year. If the couple have not live in the UK for at least one year, the non EEA national must have:
- ♠ 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.
The non EEA partner must be employed, self employed or otherwise be a ‘qualified person’ (exercising treaty rights) at the time of the application. The EEA national must also have been working at the time of the divorce.
As per the EEA regulations, the continued right of residence in the UK of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
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