EU Settlement Scheme – Retained Rights of Residence Visa

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If you previously had the right to reside in the UK as the family member of a national of the European Economic Area (EEA) or Switzerland but, for example, you are recently bereaved, divorced or your EEA national sponsor has left the UK, you will need to ascertain if you have a retained right of residence. With retained right of residence, you can apply to remain in the UK under the EU Settlement Scheme to continue living in the UK after 30 June 2021.

What is the EU Settlement Scheme Retained Rights of Residence Visa?

Under the Immigration (European Economic Area) Regulations 2016, certain family members of EEA or Swiss nationals who are exercising their rights to free movement in the UK may be permitted to join or accompany that person to Britain.

The 2016 regulations go on to provide that certain family members who are already living in the UK can retain their right of residence in certain circumstances. This includes, but is not limited to, where the EEA or Swiss national sponsor dies or leaves the UK, or where the parties get divorced.
Swiss nationals are included in the definition of EEA nationals under the regulations, whereby their family members are considered as if they were family members of EEA nationals.

Who can apply for the EU Settlement Scheme Retained Rights of Residence Visa?

The retained right of residence means that qualifying family members are able to continue living in the UK on a lawful basis without their EEA national ‘sponsor’. However, an individual who qualifies for this right does so exclusively on a personal basis, and so cannot be the sponsor for another family member.

Regulation 10 of the 2016 regulations provides that certain family members of EEA nationals who are already living in the UK can retain their right of residence in the following circumstances:

When the EEA national dies
When the EEA national leaves the UK
When the EEA national divorces their spouse or dissolves their civil partnership, or the marriage or civil partnership is annulled
Where the family member in question is the parent of a child who retains the right of residence

However, even where you satisfy one of the statutory conditions set out above, you may have already acquired a right of permanent residence under regulation 15 of the 2016 regulations.

In particular, regulation 15 provides that you will have a right of permanent residence if you are either an EEA national, or a non-EEA family member of an EEA national, and you have lived in the UK for a continuous period of five years and in accordance with the regulations.

Requirements for the EU Settlement Scheme Retained Rights of Residence Visa application

In order to qualify for the EU Settlement Scheme Retained Right of Residence Visa you will need to satisfy UK Visas and Immigration (UKVI) that for each of the four grounds for retaining a right of residence, the following statutory requirements are met:

Your EEA national sponsor is deceased

You may qualify for a retained right of residence following the death of your EEA national sponsor under both regulations 10(2) or 10(3) of the 2016 regulations.
To qualify under regulation 10(2) you must be able to satisfy all of the following conditions:

You were the family member of an EEA national who was a qualified person or had a right of permanent residence when they died, and
You were living in the UK in accordance with the regulations for at least one year immediately prior to your EEA national sponsor’s death, and
You would be a worker, self-employed person or self-sufficient person under the regulations if you were an EEA national, or you are the family member of a person who meets this requirement.

The last condition requires you to be undertaking activities similar to those of a qualified person. Although the regulations define a “qualified person” as a worker, self-employed person, self-sufficient person, job seeker or student in the UK, you will not satisfy the statutory condition as either a jobseeker or student unless you have enough resources to be self-sufficient.

You must also remain a worker, self-employed person or self-sufficient person to continue to retain your rights and in order to acquire settled status.

Under the regulations a “family member” is defined as either a spouse or civil partner of the relevant EEA national, or a child or grandchild of that person, either under the age of 21 or dependent, or a child of their spouse or civil partner. It also includes a dependent parent or grandparent of the EEA national, or of their spouse or civil partner.

In contrast, to qualify for a retained right of residence following the death of your EEA national sponsor under regulation 10(3), you must be able to show that either you are:

In either case, you will also need to show that you were attending an educational course in the UK immediately before the relevant EEA national died, and you continue to attend this course.

However, as a direct descendant, any retained right of residence will end as soon as you finish your education or you gain the right of permanent residence.

Your EEA national sponsor leaves the UK

You may also be eligible for a retained right of residence under regulation 10(3) of the 2016 regulations if your EEA national sponsor leaves the UK. To qualify here, you must be able to show that either you are:

Again, in either case, you will need to show that you were studying as part of an educational course in Britain immediately before the qualified person ceased to be qualified. You must also continue to attend this course.

Equally, any retained right of residence will end as soon as you finish your education or you gain the right of permanent residence.

You are the parent of a child with a retained right of residence

As the parent of a child of an EEA national, you can also retain a right of residence in certain circumstances under regulation 10(4). To qualify here, you must be able to satisfy the following conditions:

They cannot also be a British citizen.Your relationship with your EEA national sponsor ends

In circumstances where your relationship with your EEA national sponsor officially comes to an end, namely, by way of divorce, annulment or dissolution of your civil partnership, you may retain a right of residence under regulation 10(5) of the 2016 regulations.

To qualify under regulation 10(5) you must be able to satisfy the following:

You cease to be a family member of a qualified person or EEA national with a right of permanent residence on the termination of your marriage or civil partnership, and
You were living in the UK in accordance with the regulations at the date of the divorce, annulment or dissolution of the civil partnership, and
You would be a worker, self-employed person, or self-sufficient person under the regulations if you were an EEA national, or you are the family member of a person who meets this requirement.

You will also need to show either that:

Prior to the initiation of the proceedings for divorce, annulment or dissolution of the civil partnership, the marriage or civil partnership had lasted for at least three years, and you and your spouse or civil partner had lived in the UK for at least one year during this time, or
You have custody of a child of a qualified person or EEA national with a right of permanent residence, or
You have the right of access to a child of a qualified person or EEA national with a right of permanent residence, where the child is under the age of 18 and where a court has ordered that such access must take place in the UK, or

Your continued right of residence in the UK is warranted by particularly difficult circumstances, such as where you or another family member has been a victim of domestic violence whilst the marriage or civil partnership was subsisting.

There may also be other difficult circumstances that justify the retained right of residence, although this will be dealt with on a case-by-case basis.

Your marriage or civil partnership will be regarded as having been officially terminated on the date that either the decree absolute, decree of nullity or certificate of dissolution is issued.

In circumstances where you separate from your spouse or civil partner, you will remain a family member with the right to live in the UK for as long as you are married to, or in a civil partnership with, an EEA national sponsor. That said, to retain your right to reside in the UK, your spouse or civil partner must continue to exercise free movement rights or have a right of permanent residence.

The exact requirements you will need to satisfy will vary depending on your circumstances. You may want to speak to our expert immigration lawyers for legal advice.

Making an EU Settlement Scheme Retained Rights of Residence Visa application with OneLaw Chambers

At OneLaw Chambers, our immigration solicitors and barristers regularly assist with EU Settlement Scheme Retained Rights of Residence Visa applications in order for applicants to remain and settle in the UK. We have assisted many foreign national applicants to prepare and submit successful EU Settlement Scheme Retained Rights of Residence Visa applications and we have represented clients from all over the world.

Whether you require expert immigration advice on the requirements of the Immigration Rules, an independent immigration assessment of your prospects of qualifying for an EU Settlement Scheme Retained Rights of Residence Visa or professional immigration representation with preparing your EU Settlement Scheme Retained Rights of Residence Visa immigration application, our immigration solicitors and barristers can help you.

We are committed to ensuring that our immigration solicitors and barristers prepare every immigration visa application with utmost quality and skill so that successful outcome is achieved every time. Our immigration solicitors and barristers operate in a friendly and cooperative manner to provide our clients with the best client care and service during the entire immigration application process.

To discuss your EU Settlement Scheme Retained Rights of Residence Visa application with one our immigration solicitors and barristers, please contact our Immigration lawyers on 0207 489 2044 / 0208 616 1819 or complete our enquiry form with your details.