EEA Regulations- How can you retain a right of residence?
Mar 3, 2010
A recent AIT determination, OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003 has shed light on the Tribunal’s interpretation of regulation 10 of the Immigration (European Economic Area) Regulations 2006. Regulation 10 is a free-standing provision which enables a family member who would otherwise cease to have a right of residence to continue to do so in certain circumstances. According to regulation 10(5), non-EEA family members can retain a right of residence in the UK so long as their marriage or civil partnership is at least three years old and they have spent at least one year of residence in the United Kingdom. However, to achieve a permanent right of residence on the strength of a retained right of residence it is mandatory to show residence in the UK for a continuous period of five years. It is important to stress that regulation 10(5) does not cover unmarried partners.
The determination further states that “Under reg 10(5)(a) the phrase "termination of the marriage ..." can only mean the lawful ending of the marriage by legal proceedings (i.e. divorce); it cannot mean "breakdown of the marriage"..”In addition, “to count as a qualifying period of residence under regulation 15(1)(b) a person must show, inter alia, that the five years in question are ones in which the said residence has been "in accordance with these Regulations". That entails that during those five years the EEA national on whom the family member relies in order to establish his or her right must have been continuously in the UK exercising Treaty rights”
However, the Tribunal further clarifies that to qualify for permanent residence, the period of time during which a person "has resided in the United Kingdom with the EEA national "must commence from the date the person first became a family member, that being the date of marriage in the case of a spouse”.
Although the Immigration (European Economic Area) Regulations 2006 are more generous than the Immigration Rules, we would strongly recommend applicants to seek expert legal advice in difficult cases such as their ability to remain lawfully in the UK following a divorce.
If you have an enquiry relating to your immigration status or you ability to work in the UK, we can assist you in your application. Please contact us or book an appointment.
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