Retained Rights of Residence following separation and / or divorce from an EEA national
The non-EEA Spouse of an EEA national exercising Treaty rights in the UK is entitled to live in the UK with their spouse. The Court of Justice of the European Union established long ago in the Diatta decision of 1985, that a spouse remains a spouse until formally divorced – there is no requirement that the family member must live under the same roof permanently to benefit from the right of residence under EU law.
Therefore, if a non-EEA spouse separates from an EEA national sponsor, he or she remains eligible to live in the UK so long as the EEA national sponsor is living and exercising Treaty rights in the UK.
If the EEA national sponsor is considering leaving the UK, matters are different. The non-EEA national separated from them is not automatically entitled to remain in the UK. The Court of Justice of the European Union considered this in its decision in Case C‑218/14, Kuldip Singh, Denzel Njume, Khaled Aly v Minster for Justice and Equality, on 16 July 2015.
The case involved non-EEA nationals in Ireland who had been the spouses of Union citizens exercising Treaty rights, before the Union citizen ceased their exercise of Treaty rights and left Ireland prior to commencing divorce proceedings. For further facts of the case, please see my earlier post here on the Opinion of Advocate General Kokott delivered on 7 May 2015.
The CJEU’s ruling was contained in paragraph 79:
- Article 13(2) of Directive 2004/38/EC… must be interpreted as meaning that a third-country national, divorced from a Union citizen, whose marriage lasted for at least three years before the commencement of divorce proceedings, including at least one year in the host Member State, cannot retain a right of residence in that Member State on the basis of that provision where the commencement of the divorce proceedings is preceded by the departure from that Member State of the spouse who is a Union citizen.
- Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that a Union citizen has sufficient resources for himself and his family members not to become a burden on the social assistance system of the host Member State during his period of residence even where those resources derive in part from those of his spouse who is a third-country national.
Implications of separation vs divorce
Non-EEA national family members cannot derive a right of residence from a Union citizen in a different Member State from where that Union citizen resides (Iida).
Where a Union citizen and their spouse divorce in a host Member State, the TCN family member may retain a right of residence if they meet the requirements of Article 13(2)(a) of Directive 2004/38, which requires the marriage to have lasted for three years, including one in the host Member State (i.e. UK) prior to initiation of divorce proceedings. If there are children or the non-EEA national has been the victim of domestic violence, they may also be able to apply for a Residence Card showing their retained right of residence.
The date of final divorce does not seem to be as important as the date of initiation of the proceedings. Initiation is not defined, but logically must mean the filing of divorce in the relevant jurisdiction, rather than a lesser step such as moving out, seeking legal advice or declaring the intention to divorce. Where divorce proceedings are commenced before the EEA national leaves the UK, there is a possibility for their spouse to retain rights under EU law.
However, if divorce proceedings are not initiated prior to the departure of the Union citizen, then the non-EEA spouse is likely to be ineligible for retained rights.
It may be that the non-EEA national qualifies for the right of permanent residence following five years continuous residence in the UK during which time their EEA sponsor exercised Treaty rights, in which case they should apply for a permanent residence card on this basis.
For advice and assistance applying for a residence document on the basis of a retained right of residence following separation and / or divorce from an EEA national, contact our immigration barristers & lawyers in London on 0203 617 9173 or via our online enquiry form.