Retained Right of Residence

EEA National's Death
In the unfortunate incidence that your marriage or civil partnership to an EEA national has ended as a result of his/her death. If the EEA spouse dies from the accident at work or occupational disease, or the EEA spouse dies having lived in the UK for at least 2 years, the non EEA national may apply for Permanent Residence in the UK.

Article 12 of Directive 2004/38 provides for the retention of a right of residence by family members of an EEA national upon his death. To qualify the family members must have been residing in the UK as family members of the EEA national for at least one year before the EEA national's death.

If the EEA qualified person dies or leaves the UK, the child of either the EEA national or of the EEA national's spouse, civil partner, former spouse or former civil partner, will retain a right of residence if the child was attending an educational course in the UK immediately before the EEA national died or left the UK, which education is ongoing.

Parent with custody or right of access
You are the parent, or former partner of an EEA national with custody of his child or right of access to the child who has right of residence in UK.

Difficulty in obtaining evidence
A problem often arise where the marriage of non EEA national and the EEA national breaks down and the non EEA national can only live in the UK if he can evidence that his former EEA spouse continues to exercise EEA Treaty rights i.e., be in employment, self employment or otherwise remain a qualified person. The non EEA national may well find it impossible to obtain evidence of this from their ex partner.
In these circumstances, the Government should be able to help gather the evidence as it will have all records of economic activity of the EEA national, his National Insurance contributions and income tax. Under s.40 of the UK Borders Act 2007, UK Visas & Immigration has the power to help but unfortunately their policy is to only help in exceptional cases such as where domestic violence has been proven.

In all other circumstances it is advisable that recourse is taken to an Immigration Tribunal which can direct the UKVI to obtain these records from other Government departments and provide them to the applicant wishing to rely on retained rights of residence.
Wish to Apply?
If you'd like to make an application for retained rights of residence in the UK please be aware that a good number of applicants are refused even though they appear to meet the legal requirements. These refusals are attributable to the applicant's failure to provide evidence in the format required by the EEA regulations or them being legally illiterate failing to properly understand the rules governing grant of family permits.

The applicant, as a result, not not only loses the application but also complicates any future application that he may want to make. It is therefore critical that proper immigration advice and representation is sought before you submit your case to the Home Office to ensure you meet all applicable retained rights of residence in the UK rules and policy guidelines increasing your prospects of success.

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