Can I still apply to the EU Settlement Scheme after my divorce?

A family member of a ‘qualifying’ EEA national (including the EU, Switzerland, Norway, Iceland, and Liechtenstein) must apply for an EU Settlement Scheme (EUSS) Family Permit to join their EEA family member in the UK. The EUSS Family Permit is valid for 6 months, and once in the UK, the family member must apply for status under the EU Settlement Scheme. The qualifying EEA national must meet the following criteria:

• they hold citizenship from an EU country, including Switzerland, Norway, Iceland, or Liechtenstein
• they started living in the UK on or before 31^st December 2020
• they hold status under the EU Settlement Scheme, settled or pre-settled status; and either
• they are in the UK on the date of application, or they will be travelling with the family member to the UK within 6 months of the date of application

A non-UK national married to an EEA national will lose their right to work and reside in the UK should their marriage end in divorce, since these rights derive from their relationship to the EEA national.

In the event of a divorce, what happens?

A non-UK national whose UK immigration permission derived from their qualifying EEA family member may be able to retain their rights of legal residence in the UK if their marriage or civil partnership ends in divorce, annulment, or dissolution. These are called ‘Retained Rights of Residence’.

What are Retained Rights of Residence?

Under the Immigration (European Economic Area) Regulations 2016 (“2016 Regulations”), family members who already reside in the UK may be able to maintain their rights of residence in certain circumstances, including where their EEA sponsor dies or leaves the UK, or where the parties get divorced.

What are the requirements to make an application for Retained Rights of Residence?

To make an application for Retained Rights of Residence in case of a divorce, a non-UK national must be able to demonstrate at least 2 of the following:

1. that the marriage or civil partnership ended in divorce, annulment, or dissolution
2. the marriage or civil partnership lasted for at least 3 years, and the couple had been living together in the UK for at least a year during that time
3. that the non-UK national has custody of or the right of access to a child that they might have had with their EEA ex-partner (assessed on a case-to-case basis)
4. the non-UK national was a victim of domestic violence or abuse in the marriage or civil partnership (assessed on a case-to-case basis)

What evidence must be submitted in support of the application?

To evidence eligibility under this category, a non-UK national family member must first provide evidence of their EEA ex-partner’s identity (e.g. copy of passport) and their right to reside in the UK (e.g. evidence of their pre-settled/settled status under the EU Settlement Scheme). Once their identity and rights have been established, a non-UK national family member must provide:

1. Marriage Certificate with the EEA national
2. Either a decree absolute or a certificate of dissolution
3. Evidence of co-habitation – e.g. tenancy agreement and utility bills in joint names for the duration of the cohabitation

Along with the above, it is important to evidence that both parties (non-UK and EEA nationals) exercised their rights of residence in the UK prior to their divorce and continue to do so at the time the application. This can be by way of employment, self-employment, studies, and other means.

It is clear that Retained Right of Residence applications are not straightforward and the 2016 Regulations have created much confusion. The most difficult aspect of making such applications is to provide sufficient evidence in support of the application and to prove that both parties have exercised their rights for the qualifying amount of time.

It is important for non-EEA nationals who are merely protected by derived rights to seek immigration advice in advance and are prepared in the event of having to make this application.