RETAINED RIGHT OF RESIDENCE – EU SETTLEMENT SCHEME
You may be able to remain in the UK if you previously had a right to reside as the family member of an EU, EEA, Swiss citizen and one of the below listed scenarios apply to you. This is called ‘retained right of residence’ as you can remain in the UK even though your relationship with the EU, EEA or Swiss citizen ends due to their death, divorce, domestic violence or their departure from the UK.
- your eligible family member died
- you’re their child, they died or left the UK, and you are in education in the UK
- you’ve had a child with them, they died or left the UK, and the child is in education in the UK
- they divorced you or a member of your family
- the relationship has broken down because of domestic abuse or violence
Most common scenario from the ones listed above, is when there is a divorce, and the non-EU national family member subsequently applies under the EU Settlement Scheme on the basis of Retained Rights of Residence. The Home Office guidance on the EU Settlement Scheme applications can be found here.
It is important to remember that the EU rights are retained by you as an individual. Therefore, if you would like your new spouse/partner to benefit from your retained right, this is not permitted until you get Settled Status (ILR) at which point your new partner can apply for spouse visa. However, until you get the ILR, your new partner would need to qualify in their own right under any other UK visa category (e.g. work visa) if they wish to live with you in the UK.
Retained rights if your family member has died
You can apply if you lived continuously in the UK as their family member for at least one year immediately before their death.
To retain the right of residence on death of EU national, Applicant must:
- be resident as the family member of a relevant EEA citizen (or of a qualifying British citizen), or as the joining family member of a relevant sponsor, for a continuous qualifying period in the UK of at least a year immediately before the death of that person;
- provide the required evidence of family relationship with the family member who passed away;
- since satisfying the above requirements the required continuity of residence has been maintained by Applicant.
In certain circumstances, Applicants may be eligible for Indefinite Leave to Remain (ILR) when they are a family member of a relevant EEA citizen who has died. To qualify for the ILR, all the following must be met:
- the Applicant is a family member of a relevant EEA citizen and the relevant EEA citizen has died
- the relevant EEA citizen must have been resident in the UK as a worker or self-employed person (within the meaning of the EEA Regulations) at the time of their death
- the relevant EEA citizen must have been resident in the UK and Islands for a continuous qualifying period of at least 2 years which, unless they were a specified relevant person of Northern Ireland, began before the specified date, immediately before dying, or the death must have been the result of an accident at work or an occupational disease
- the Applicant must have been resident in the UK with the relevant EEA citizen immediately before their death
- since the death of the relevant EEA citizen, the Applicant must not have been absent from the UK and Islands for a period of more than 5 consecutive years
- since the death of the relevant EEA citizen, none of the events such as deportation or exclusion order of the Applicant must have occurred.
Retained rights if you’re in education in the UK
You can apply if you’re in education in the UK and one of the following is true:
- you’re the child of an EU, EEA or Swiss citizen who has left the UK or died
- one of your parents is the spouse or civil partner of an EU, EEA or Swiss citizen who has left the UK or died
- one of your parents was previously the spouse or civil partner of an EU, EEA or Swiss citizen who has left the UK or died
If you qualify through any of these circumstances, your parent is also eligible for retained right of residence if they have custody of you.
If you or a member of your family was previously married or in a civil partnership
You can apply if your marriage or civil partnership to an EU, EEA or Swiss citizen ended with a divorce, annulment or dissolution, and you lived in the UK when it ended.
One of the following must also apply:
- the marriage or civil partnership lasted for at least 3 years and you’d both been living in the UK for at least one year during that time
- you have custody of the EU, EEA or Swiss citizen’s child
- you have been given right of access in the UK to the EU, EEA or Swiss citizen’s child – the child must be under 18
- you or another family member was the victim of domestic abuse in the marriage or civil partnership
Relevant caselaw from the Courts and Tribunals under the previous law when the UK was part of the EU, the EU Regulations. Baigazieva and other relevant cases on retained right of residence
Furthermore, in December 2021, the Court of Appeal explained in the case of Chelluri v Air India Ltd that the caselaw developed under the EU law still applies after Brexit. This confirms what is stated in the European Union (Withdrawal) Act 2018: the previous caselaw is considered as “Retained EU law” to ensure continuity and consistency of interpretation. The Withdrawal Act 2018 introduced concept of “Retained EU case law”. Therefore, the previous interpretation of EU law by the European Court of Justice would continue to bind UK courts. This principle may be relevant for applicants who apply under the EU Settlement Scheme, where there is EU caselaw that supports their case.
If you are a victim of domestic abuse or violence
You can apply if your family relationship with an EU, EEA or Swiss citizen has broken down permanently because of domestic abuse or violence. The Home Office EU Settlement Scheme Caseworker Guidance refers to the Victims of Domestic Violence Guidance for examples of supporting documents to evidence domestic violence. The sources of evidence could be as an example: the police, court, hospital, GP, or any charity helping domestic violence victim (e.g. Refuge https://www.refuge.org.uk/).
You can apply if you are or were their:
- husband, wife or civil partner
- unmarried partner (‘durable partner’)
- child or grandchild under 21 years old
- dependent child or grandchild over the age of 21
- dependent parent or grandparent
When to submit your retained right application
You can either submit your new application under the EU Settlement Scheme once you meet the criteria for any of the Retained Right of Residence, or, you can wait until you complete 5 continuous residence in the UK (total of your residence before retaining the right and after). This approach has been confirmed to us by the Home Office.
EU Settlement Scheme Settled Status
Those who have resided in the UK for 5 continuous years in line with the EU Settlement Scheme, can apply for Settled Status (Indefinite Leave to Remain). The time spent with Retained Right of Residence counts towards this 5 years and can be combined with the time spent in the UK as the Family Member of EU national.
If you currently hold a Pre-Settled Status you may find it useful to read our blog on the recent High Court Judgement that declared some of the requirements in the EU Settlement Scheme as unlawful (not in line with the Withdrawal Agreement.
How we can help
We are diligent and experienced in Retained Rights applications and we can assist you with the entire process, or we can review your application as an application checking service for a smaller professional fees. Professional assistance from an immigration lawyer can save money and time, and its benefits will surpass the cost of the legal advice.
It is important to get it right and get a successful outcome of an application under the EU Settlement Scheme in order to avoid issues when crossing UK border. There is a useful Home Office guidance on this topic EU Nationals at the Border post Grace Period. The conclusion from this Home Office guidance is that in some circumstances it is better to remain in the UK until the application is approved.