Migra&Co

We are seeking further clarification from the EEA team at the Home Office in connection with the uphill struggle faced by many family members of EEA nationals who following a divorce seek to remain in the UK and retain their right of residence.

The most common problem occurs when the EEA ex-spouse/civil partner has left the UK and is unwilling to provide documents to evidence their ex partner's right of residence. The UK Border Agency (UKBA) appears to be still refusing to contact the HMRC to check the position of EU nationals who have been in employment and payed NI contributions over relevant period. However, Section 40 of the Borders Act 2007 gives the UKBA the power to request information from HMRC for the purposes of “doing anything … in connection with the exercise of immigration and nationality functions”.

Therefore, one wonders whether the onus of proof should be really on the non-EEA applicant when he/she has no access or indeed any recourse to provide such evidence particularly following an acrimonious divorce.