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 2006 Regulations.

"Family member who has retained the 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.

Why Sunrise Solicitors For Retention Of Right Of Residence?

The immigration solicitors at Sunrise Solicitors are experts in dealing with application for retaining right of residence under the regulation 10 of the EEA Regulations 2006. The quality of our service is self-evident from the reviews of our clients about the service provided by our immigration lawyers. You can contact us if you are seeking legal help from immigration lawyers in London in relation to your application to retain right of residence and our immigration solicitors will provide you fast, friendly, reliable and professional immigration service.

If instructed to represent you regarding your application for retaining right of residence, we will do the following for you:

  • Our immigration solicitors will take Detailed Instructions from you and advise you about the relevant immigration law and procedures to be adopted by the Immigration Authorities in your application to retain your right of residence;
  • Our immigration solicitors will discuss your immigration case in detail with you and advise you about the weaknesses and strengths of your application to retain your right of residence;
  • Our immigration solicitors will advise you about the documentary evidence to be submitted in support of your application for retaining your right of residence;
  • Our immigration solicitors will consider contents of the documentary evidence to be submitted in support of an application to retain your right of residence and discuss the same with you;
  • Our immigration solicitors will complete the relevant immigration form for application to retain your right of residence and discuss the same with you;
  • Our immigration solicitors will prepare a covering letter to introduce and support the application to retain your right of residence;
  • Our immigration solicitors will liaise with the immigration officer for expeditious decision on the application;
  • Our immigration solicitors will protect your interests while your application is pending with the Home Office and keep you informed of the progress on the immigration matter;
  • Our immigration solicitors will do all the follow up work until a decision is reached on your application to retain your right of residence;
  • Our immigration solicitors will advise you about the implications of the Home Office decision on your application.

Our Fees For Retention Of Right Of Residence

  • We charge a fee from £1,000.00 + VAT for our professional immigration services for an application to the Home Office to retain right of residence under the EEA Regulations. The agreed fee depends on the complexity of the immigration matter and the casework involved in the matter.
  • If you cannot afford to pay our fee in full at the time of instructing us in relation to your  immigration matter, you can pay half of the fee at the time of instructing us and the balance can be paid within a month from the date of initial instructions.
  • The agreed fee covers all our work until decision by the Home Office on your application to retain your right of residence. However, it is pertinent to note that the agreed fee does not cover any disbursements to be incurred by the company on your behalf e.g. translation of documents, etc.

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