The trials and tribulations of a relationship breakdown can be compounded where one’s immigration status is dependent on a former partner. However, this does not necessarily mean the end of your stay in the UK and it is possible to go your own way.
This article will deal with the situation where a non-EEA spouse finds themselves in the situation where their relationship with an EEA citizen has broken down.
As long as your former spouse remains in the UK, and continues to exercise Treaty rights, as the former spouse of an EEA citizen, you will have an automatic right of residence in the UK. However this creates the somewhat uncomfortable situation of having your status in the UK dependent on a former spouse remaining here.
I have been in the UK for five years with my spouse
You may be in a position to apply for permanent residency if you have lived in the UK for five years with your spouse and both of you have been continuously resident and exercising your Treaty rights for that five year period.
I have been in the UK for less than five years.
You may still be in a position to apply for a Retained Right of Residence, provided you have been married, or in a civil partnership, with an EEA citizen for at least three years, with a minimum of twelve months spent cohabitating in the UK, before the initiation of divorce proceedings. Key to this is the fact that divorce proceedings must have begun at a stage when the EEA national still remained in the country.
Co-operation of Spouse
In an ideal situation, and for ease of process, it is always best to have the co-operation of the former EEA spouse where possible. However, if the EEA national is working in the UK then it follows that there will be some evidence in the form of tax or other contributory payments having been paid. This information is not easily accessible and is protected by data protection laws. The UK Borders Act does provide for UK Visas and Immigration (previously UK Border Agency) to request such information, however, it is a power that has been rarely and reluctantly utilised. UK Visas and Immigration may however, in exceptional circumstances, or where directed to by an immigration judge, conduct these checks to ascertain the partner’s presence in the country.
If you require specialist advice on what to do following, or with separation or divorce from an EEA citizen and you wish to stay in the UK, please contact the team at Alrose Legal on info@alroselegal.com or see our website for further information: www.alroselegal.com.
This article is not intended to constitute legal advice and represents the opinion of the author only.