If you are a non-UK national, the term “retained right of residence” refers to your ability to continue living in the UK after your relationship with an eligible EU, EEA, or Swiss family member has ended. Your relationship could have ended due to reasons such as your eligible family member has died, has left the UK, or your relationship with them has permanently broken down. To ensure your continued lawful living in the UK, it is essential to understand whether you qualify for retained right of residence.
Usually, individuals who have been granted the EUSS (EU Settlement Scheme) retained right of residence are entitled to live, work, and study in the UK. They may also be able to access public services and benefits, as long as they meet the eligibility criteria. Eventually, they can apply for settled status.
If you are a non-UK national and you have lost your connection to an EU, EEA, or Swiss family member because of their death, divorce, or because they have left the UK, it can raise immediate concerns about your right to continue to stay in the UK. In such a situation, the retained right of residence may allow you to remain in the UK. It is a specific safeguard that was built into the post-Brexit immigration framework to address exactly this situation.
There is no single route through which you can qualify for a retained right of residence. The rules recognise that people’s (those who were once family members of EU, EEA or Swiss nationals) lives can change in different ways, and the law sets out several specific situations where such people may still be entitled to remain in the UK after that relationship has formally ended.
However, the retained right of residence is not automatic nor available to everyone. But if you meet the conditions, it provides you with a route to stay lawfully in the UK under the EUSS.
The Immigration (European Economic Area) Regulations 2016 ceased to apply from 31 December 2020. This regulation previously governed rights of residence for EEA citizens, Swiss citizens, and their family members in the UK.
Consequently, any application, under the Immigration (European Economic Area) Regulations 2016, for a retained right of residence is no longer accepted. Those who previously relied on these regulations would have to apply under the new EU Settlement Scheme. EUSS superseded previous regulations after the UK left the EU.
You will need to provide proof of your identity, your previous relationship with the EU, EEA, or Swiss citizen, and documents supporting your continued residence in the UK.
To be eligible under the EUSS, you and the EU, EEA, or Swiss citizen with whom you have had a qualifying relationship must have been residing in the UK by 31 December 2020. You must also continue to reside in the UK.
Your relationship must have ended due to specific circumstances:
You may apply for EUSS retained right of residence if your family member who was an EU, EEA, or Swiss national and residing in the UK by 31 December 2020, has died. You must have lived in the UK for at least one year as their family member immediately before their death. Your deceased family member must also have lived in the UK for at least two years immediately before their death or have been residing in the UK as a worker or self-employed person at the time of death.
You must have been residing in the UK at the time of the termination of your relationship with the EU, EEA, or Swiss citizen where your marriage or civil partnership with them has ended due to divorce, annulment, or dissolution.
One of the following must also apply:
Your marriage or civil partnership lasted for 3 or more years, and both of you had been living in the UK for one or more years during that time; or
You have custody of the child of your previous family member; or
You have the right of access in the UK to the child of your previous family member, and the child is under 18.
• You or another family member, in marriage or civil partnership, has been the victim of domestic violence or abuse.
You may qualify for retained right of residence if your relationship has broken down permanently due to domestic violence or abuse that occurred while residing in the UK. This provision applies to spouses, civil partners, unmarried partners, children or grandchildren below the age of 21, dependent children or grandchildren above the age of 21, and dependent parents or grandparents.
If you are a child of an EU, EEA, or Swiss national who has died or left the UK, and you are enrolled in education in the UK, you may retain the right of residence under the EUSS. Your parent may also qualify if they have your custody.
You may be eligible for retained right of residence if you were a primary carer of a child and you have both been living in the UK by 31 December 2020. The child could be either a self-sufficient person from the EU, the EEA, or Switzerland, or a child of someone from one of these countries.
Please note that everyone’s application is assessed on a case-by-case basis. Therefore, providing accurate and comprehensive documents will significantly support your application.
Under the EU Settlement Scheme, you may be able to apply for a retained right of residence in the UK.
How you can apply varies depending on whether you are currently inside or outside the UK.
You will need to provide biometric information (a facial photograph and, for certain applicants, fingerprints) to prove your identity. You can scan your identity documents using the ‘EU Exit: ID Document Check’ app or you can send the documents by post. The Home Office will inform you if they need additional evidence supporting the application.
If you are applying from outside the UK, you need an EU Settlement Scheme family permit to enter the UK. You must submit the EUSS family permit application online, and you must be outside the UK at the time of application.
The family permit allows you to enter the UK for up to six months, during which you can apply for EUSS pre-settled or settled status.
There is no fee to apply for the family permit.
If you are residing in the UK, you can apply online using the official EUSS application portal. As part of the application process, you need to submit proof of your identity such as a valid passport. You also need to submit evidence of your previous relationship with the EU, EEA, or Swiss citizen, and documentation which supports your continuous residence in the UK.
If you are a non-EEA citizen without a specified relevant document, you must also provide your biometric information (a facial photograph and fingerprints).
If you cannot provide standard identification documents due to a compelling practical or compassionate reason, alternative evidence may be acceptable. For this, you must provide supporting evidence explaining the situation.
The application process for retained right of residence can be a daunting experience for you because it requires stringent documentation and involves several legal complexities.
Engaging with one of our expert UK immigration solicitors can significantly enhance the likelihood of your application being successful. Visa and Migration offers expert legal advice and tailored solutions depending on your case’s complexity throughout the complete application process.
Our team fully understands the UK immigration law and is committed to protecting your residence rights. Our expert team ensures that your application for retained right of residence under EUSS is meticulously prepared and submitted.
You can reach out to our team at +44 (0) 20 3411 1261 to learn more.
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