The Legal Framework of Retained Right of Residence

The concept of a retained right of residence typically pertains to immigration and residency laws, and it often refers to the ability of an individual to maintain certain rights even after a change in their circumstances. This right is generally associated with specific categories of individuals who, despite a change in their immigration status, can retain the privilege of residing in a particular country.

If the person who sponsored the EEA national passes away, departs the country, gets divorced, or ends their marriage to their spouse, then certain family members of the EEA national may continue to remain in the UK under the terms of retained right of residence.

You will be qualified for an EU Settlement Scheme (EUSS) family visa if you meet the requirements for this immigration route. Family members of citizens of the EU, Switzerland, Norway, Iceland, or Liechtenstein are eligible for EUSS family permits. By December 31, 2020, your EEA family member must have been residing in the UK in order for you to apply for retained right of residence.

Conditions to apply for Retained Right for Residence

Suppose any of the following situations apply to you and you are living outside the European Economic Area (EEA, encompassing the EU, Switzerland, Norway, Iceland, and Liechtenstein), you may be eligible for the retained right of residence:

• There was a death in your eligible EEA family.
• You are still enrolled in school here because you are the entitled EEA family member’s child who either passed away or left the UK.
• Your child is still enrolled in school here even when a family member who was eligible for EEA status passed away or left the country.
• You got divorced from an approved EEA family member.
• Your family member who is qualified for an EEA was divorced.
• Domestic abuse or violence caused your relationship with your eligible EEA family member to completely break down.

Retained residency rights after the qualifying EEA national passed away

You must provide proof that you were residing in the UK as an authorized EEA national family member’s family member for a minimum of twelve months before their death if you want to apply for a EUSS family visa after they pass away. You may also apply through this method if:

• Just before their passing, you were a family member residing in the UK, and at the time of their passing, your eligible EEA family member worked or was independent in the UK, and
• Prior to their passing, your eligible EEA family member resided in the UK for two or more years.

According to the regulations, your family member does not need to have lived in the UK for two years or longer if they passed away as a result of an illness or injury they suffered at work.

Kept the right to live there during a separation or divorce

You might be qualified for an EEA retained right of residence after a divorce or dissolution if you were married to someone from the EU, Switzerland, Norway, Iceland, or Liechtenstein, or if you were in a civil relationship with them. In order to satisfy the Home Office, you must demonstrate that you were a resident of the United Kingdom at the time of the divorce or dissolution and that:

• Your civil partnership or marriage persisted for three years or more, during which time you both resided in the UK for at least one year, or you have continued to be the child’s legal guardian.
• If your ex-partner’s child is fewer than 18 and you were granted privileges of access to them in the UK,.
• You or a family member have gone through trying times (this could be being abused or subjected to domestic violence in your marriage).

In addition, the regulations permit you to apply for EEA retained rights of residence after a divorce on behalf of a family member who was married or in a civil partnership that qualified. In this instance, you have to have been a UK resident at the time of the breakup. In order to apply using this procedure, you must demonstrate that you are their

• Younger than 21 years old, grandchild.
• Dependent grandchild or child that is older than 21.
• Dependent parent or grandparents.

How to apply for Retained Right for Residence

The process for applying for a retained right of residence can vary depending on the country and its specific immigration laws. Below is a general guide that may help you understand the steps involved.

1.   Understand Eligibility Criteria: Familiarize yourself with the eligibility criteria for retained right of residence in the specific country. This may include requirements related to the nature of the relationship, the change in circumstances, and the duration of previous residence.
2.   Gather Documentation: Collect all necessary documents to support your application. This may include proof of your initial right of residence, documents demonstrating the change in circumstances (such as divorce or separation papers), proof of continuous residence, and any other documents specified by the immigration authorities.
3.   Check Application Form: Obtain the relevant application form from the immigration authorities or their official website. Ensure that you have the most recent version of the form.
4.   Complete Application Form: Fill out the application form accurately and provide all required information. Be sure to follow the instructions provided in the form and provide supporting documents as per the checklist.
5.   Submit Application: Submit your completed application along with all supporting documents to the designated immigration office. Some countries may allow online submissions, while others may require physical submissions at a specific office.
6.   Pay Fees: Check if there are any application fees associated with the retained right of residence application. Pay the required fees as per the instructions provided by the immigration authorities.
7.   Biometrics and Interviews: Some countries may require applicants to undergo biometric data collection or attend an interview as part of the application process. Be prepared for these additional steps, if applicable.
8.   Receive Decision: Once a decision is made, you will be notified of the outcome. If your application is successful, you will be granted the retained right of residence. If it is not successful, you may receive information about the reasons for the denial and whether you have the right to appeal.
9.   Comply with Conditions: If your application is approved, make sure to comply with any conditions or requirements specified in the approval notice.

Moreover, with your application, you are obliged to submit the following documents that will prove your residence right.

In case of a death in your family:

• Their death record.
• Proof of the cause of death in the incident that they passed away due to an illness acquired at work or an accident.
• Proof that you now live in the UK.
• Proof that your family member lives in the United Kingdom.
• Proof of your family member’s job, or if required, their self-employment.

If you or a child you are custodial over attends school in the United Kingdom

• Proof that a member of your EEA national family passed away.
• Proof that a family member who is an EEA national has left the UK.
• proof that you were enrolled in school in the UK at the time of your family member’s death or departure and that you are still enrolled in classes here.
• Evidence that you are the parent of a kid who was enrolled in school in the UK at the time of a family member’s death or departure and who is still enrolled in school there.

If an admissible EEA national was the spouse of you or a member of your family (i.e., EEA retained rights of residence following dissolution):

• Proof that the civil alliance or marriage was dissolved legally.
• Proof that the civil union or marriage existed for three years or longer.
• Evidence that during the marriage or civil partnership, you both resided together in the UK for at least a year.
• Proof that you were still granted visitation rights or guardianship of your ex-partner’s child.
• Proof of difficult conditions, such as an arrest report or court order, if requesting to keep one’s right to residency after assault or domestic violence in a marriage or civil partnership.

FAQs

Can I appeal if my application for retained right of residence is denied?

Many countries allow applicants to appeal a decision if their application is denied. Check the specific procedures and timeframes for appeals in the country where you are applying.

Can I work or study with a retained right of residence?

The rights associated with a retained right of residence can vary. In some cases, it may grant the right to work or study, while in others, additional permissions may be required.

What are common changes in circumstances that may lead to a retained right of residence?

Common changes include divorce, separation, or the death of the family member who initially granted the right of residence.