As a non-EEA national family member of an EEA national, you can retain your right of residence to continue staying in the UK. Directive 2004/38 has incorporated ECJ case-law such as Baumbast and Diatta to allow non-EEA nationals family members to retain the right of residence.

There are now a number of circumstances in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK or dies or the relevant marriage or civil partnership is terminated. These circumstances are set out in regulation 10 of the 2016 Regulations.

Regulation 10: Retention Of Right of Residence

10.—(1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the conditions in this paragraph if—

(a) he was a family member of a qualified person when the qualified person died;

(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and

(c) he satisfies the condition in paragraph (6).

(3) A person satisfies the conditions in this paragraph if—

(a) he is the direct descendant of—

(i) a qualified person who has died;

(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or

(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and

(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.

(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).

(5) A person satisfies the conditions in this paragraph if—

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c) he satisfies the condition in paragraph (6); and

(d) either—

(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;

(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or

(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.

(6) The condition in this paragraph is that the person—

(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b) is the family member of a person who falls within paragraph (a).

(7) In this regulation, "educational course" means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers [11].

(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.

How Can We Help?

As your legal representatives, our immigration solicitors can represent you in your application for retained right of residence and carry out all the work on your leave to remain application until a decision is received from the Home Office UKVI. If instructed to represent you regarding your retained right of residence, the immigration casework to be carried out by our EU law solicitors will include the following:

  • Assessing your eligibility for retained right of residence by considering all your personal circumstances;
  • Advising you on the weaknesses and strengths of your application for retained right of residence;
  • Advising you on the relevant documents to be submitted in support of your application for retained right of residence;
  • Assessing your documents to ensure that the documentary evidence is as per requirements of the Home Office UKVI immigration Rules;
  • Completing and submitting the online application form to apply for retained right of residence by gathering all the relevant information from you;
  • Booking your appointment with the application centre for enrolment of biometrics;
  • Preparing a detailed cover letter to introduce and support your application;
  • Uploading online all the relevant supporting documents before you attend your appointment for enrolment of your biometrics;
  • Liaising with the Home Office UKVI for a timely decision on your application.

Our Fee For Retained Right Of Residence Application

Unless your matter is very complicated, our fixed fees for retained right of residence application are as given in the fee table below:

Our Service Our Fee
One-off immigration consultation/advice for retained right of residence application £80 (inclusive of VAT)
One-Off leave to remain Application Checking Service / Documents Assessment £240 (inclusive of VAT)
Full service for retained right of residence application to  cover all the work until decision by the Home Office UKVI From £1,000 + VAT To £2,000 + VAT

The agreed fixed fee will depend on the complexity of the application and the volume of casework involved in the retained right of residence application.