EU Settlement Scheme Family Permit divorce

This article is for those who are in the UK as a spouse of an EEA national and are undergoing divorce proceedings or have already concluded it.

You must tell the Home Office when you divorce or separate from your partner if your visa is based on your relationship. First to qualify for any protection under EEA Regulations there must have been a marriage or civil partnership. A simple partnership does not qualify the person as a family member of an EEA national and does not offer them the same protection. Partners of EEA nationals are considered to be extended family members and not family members and only family members are entitled to protection after the breakdown of the relationship.

The second significant aspect is the status of an EEA national in the UK. Holding an EEA nationality is not sufficient to confer any rights on the family member after a divorce. The EEA national should be a qualified person, this means exercising treaty rights either by working, being self-employed, a student or self-sufficient.

Retained rights of residence.

You can apply for an EEA family permit if you previously had a right to reside in the UK as the family member of an EEA national who either:

• had permanent right of residence in the UK
• was a ‘qualified person’ (a worker, student, self-employed person, self-sufficient person or someone looking for work) in the UK

You could have a retained right of residence if:

• your, or another member of your family’s, marriage or civil partnership to that person has ended (with a divorce, annulment or dissolution)
• that person has died and you had lived in the UK for at least 1 year before they died
• you’re the child of an EEA national who has died or left the UK, or the child of their spouse or civil partner, or former spouse or civil partner, you were in education when that person died or left the UK, and you continue to be in education
• you’re the parent and have custody of a child who has a retained right of residence because they’re in education in the UK

Additional requirements if you or your family member divorced the EEA national or ended a civil partnership with them.

You can only apply if you were in the UK as the EEA national’s family member on the date the divorce was finalised or civil partnership was ended and one of the following applies:

• the marriage or civil partnership lasted at least 3 years before legal proceedings began and the couple lived in the UK for at least 1 year before the divorce, annulment or dissolution was finalized
• you (or the former spouse or civil partner of the EEA national) have custody of a child of the relevant EEA national
• you (or the former spouse or civil partner of the EEA national) have access rights to a child of the relevant EEA national, provided the child is under 18 and a judge has ordered that access must take place in the UK
• you, or a family member, have been a victim of domestic violence during the marriage or civil partnership, or there are other particularly difficult circumstances which justify retaining the right of residence

It is therefore important to finalise the divorce or civil partnership dissolution proceedings before applying for retained rights. Another important point to remark is that because until the relationship is officially and legally terminated, the non-EEA family member continues to be treated as a family member no matter if the relationship has broken down. This means they are allowed to remain in the UK under the same conditions as before. This might seem an ideal situation for many, however, there are hidden dangers. The EEA national must continue to be residing in the UK as a qualified person for the non-EEA national spouse or civil partner to continue having the rights under the EEA Regulations. Therefore, once the spouses become estranged, it is possible that the non-EEA national will not have any control or knowledge whether they continue to exercise treaty rights or are even in the UK. This can mean that the non-EEA national might inadvertently become an overstayer.