If you are married to an EEA national exercising treaty rights in the UK, it is important to consider the effect on your immigration status if your marriage has broken down.

by Bruce Mennell | | Blog

If you are married to an EEA national exercising treaty rights in the UK, it is important to consider the effect on your immigration status if your marriage has broken down. The non-EEA national spouse of an EEA national exercising treaty rights in the UK (or with a permanent right of residence) is entitled to reside in the UK.  You may have been issued with a residence card in the UK on the basis of your marriage.  If your marriage breaks down, what is the effect on your immigration status?  

The Law on Breakdown of the Relationship

In European Union law, the breakdown of the marital relationship does not by itself affect the right to reside of the non-EEA national spouse.  This is as long as both parties remain living in the UK, and the EEA national continues to exercise treaty rights in the UK by looking for work, employment, self-employment, self-sufficiency or study, or if they have a permanent right of residence.  The non-EEA national spouse can continue to proceed towards getting permanent residence (after 5 years) even though the parties to the marriage are no longer living at the same address.  As a matter of law, the breakdown of your marriage does not by itself affect your status.  

Practical Consequences of the Breakdown

What about the practical consequences of a separation?  If you have already acquired a permanent residence card on the basis of your marriage to an EEA national, breakdown of the relationship (or divorce) is unlikely to have any practical effect.  However if you have a 5-year residence card or other temporary visa, it is important to consider the position when you apply for a renewal (or leave the UK).  If you apply to the Home Office for another residence card, or permanent residence card, you would have the burden of proof.  Your EEA national spouse may not be prepared to assist by providing documentary evidence to show that they are still exercising treaty rights.  So although your spouse may (for example) be working in the UK, that will not assist you unless you can prove it. There is no automatic right to access information about your spouse from a third party.  Data protection obligations would prevent either your spouse's employer or HMRC from disclosing the information you would need to prove your rights to the Home Office.  Under the UK Borders Act 2007, the Home Office has a power to request information from the HMRC to confirm that your EEA national spouse is working (without requiring their consent).  However in most cases the immigration authorities have been very reluctant to use this power, and the courts have been slow to direct its use in the context of appeal proceedings. So if your marriage is breaking down, or you are contemplating divorce proceedings, it could be crucial to obtain documentary evidence that your EEA national spouse is exercising, or has exercised, treaty rights in the UK.  This could be an important consideration for negotiation in the context of ancillary relief proceedings (court proceedings about the assets of the marriage).  

The Effect of Divorce

If you divorce your EEA national spouse, and have not yet acquired a permanent right of residence as a family member, you may nevertheless retain a right of residence in the UK after the divorce. Retention of a right of residence is a complex area and the detailed requirements are beyond the scope of this article.  In general, however, the possibility exists when the marriage had lasted for at least 3 years and the parties had lived together in the UK for at least 1 year during the marriage (including after the breakdown of the relationship).  The possibility also exists when the non-EEA national spouse retains custody of a child of the EEA national spouse, if they retain access rights to a child in the UK under a court order, or if the continuation of the right of residence is warranted by “particularly difficult circumstances” such as domestic violence. If you are bringing, or thinking about bringing, divorce proceedings against an EEA national spouse, you may require legal advice about whether you will retain a right of residence after the divorce.
Alexander Finch, Senior Adviser
©Passportia Ltd


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