Appendix FM Spouses and non – EEA family members: Preservation and Retention of Rights following Divorce or Death of Sponsor

The Immigration Rules and EEA Regulations do make provision for  some  preservation and retention of  immigration status  rights in relation to foreign spouses married to UK settled  or EEA sponsors, who might otherwise be left in a vulnerable position, possibly with  British or EEA children to look after,  in the event  of the  death or divorce from  the said sponsor.

The UK Government ‘s proposed  changes in immigration  and asylum  appear to have  left  the requirements for  these  category of applicants largely  untouched for some  time- the   reason perhaps being undeniable that they fall in a group that needs  provision of  measures in place   in order to preserve their rights of residence in the UK  and some  might even say their dignity.

TRANSITIONAL PROVISIONS: BEREAVED SPOUSES AND VICTIMS OF DOMESTIC VIOLENCE

 From 9 July 2012, the Immigration Rules have contained a new framework for consideration of applications  as regards  Family life with a partner; Family life as a child of a person with limited leave as a partner or parent; Family life as a parent of a child in the UK; Adult dependent relatives; bereaved partners and victims of domestic violence.

Home Office Guidance, “!Immigration Directorate Instruction Family Migration: Chapter 8 Transitional Provisions   Family Members under Part 8 and Appendix FM of the Immigration Rules  August 2015”,  is also  used by  the Home Office when  considering applications for leave to remain or indefinite leave to remain under Part 8 of the Immigration Rules which fall under the transitional provisions in paragraphs A277 to A281 of the Rules.   The  guidance applies among other matters to   applications made on or after 9 July 2012, by persons who were granted entry clearance or limited leave to remain under Part 8 of the Rules before 9 July 2012 and who apply for further leave on the same basis. Under the transitional provisions, Part 8 will apply through to indefinite leave to remain to those persons who were granted leave for example as spouses, on the basis of an application submitted before 9 July 2012.

Part 8 of the Immigration Rules also provides the   requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom. The relevant immigration rules in this category are  therefore paragraph 289A, in Part 8  of the Immigration Rules,  applicable to those who were granted limited leave to enter or remain as a partner of a British citizen or a settled person before 9 July 2012 (before 30 November 2013 if the sponsor is a full time member of HM Forces who is British); Section DVILR.1.1 of Appendix FM of the Immigration Rules is applicable to those who were granted limited leave, as a partner of a British citizen or person settled in the UK, on or after 9 July 2012; Part 6 of Appendix Armed Forces.  Leave will be  granted under either paragraph 276D, 289B section 4, paragraph 40 of Appendix Armed Forces or section D-DVILR.1.1 of Appendix FM.

From 9 July 2012, where the home office  grant the applicant as a post-flight partner under Appendix FM, the applicant will qualify under section DVILR only if their partner had settled status at the date of their original application for leave to enter.

Paragraphs 287(b), in Part  8 of the Immigration Rules makes provision for spouses, who are bereaved during the probationary period to be granted indefinite leave to remain in the UK.  Paragraph A277A(c) of Part 8 provides for an applicant (where the application is for indefinite leave to remain as a bereaved partner) who does not meet the requirements of Part 8 for indefinite leave to remain as a bereaved partner only because paragraph 322(1C)(iii) or 322(1C)(iv) of the General Grounds for Refusal applies, to be granted further limited leave to remain under Part 8 for a period not exceeding 30 months and subject to such conditions as the Secretary of State considers appropriate, provided any requirement to pay the immigration health charge under the Immigration (Health Charge) Order 2014 is met under paragraph A277D(b). Applicants will be eligible to apply for settlement once they are able to meet all of the requirements for indefinite leave to remain.

As applications under Part 8  of the Immigration Rules are  covered by transitionary provisions, the considerations below will  therefore  refer  to applications for leave to remain  by reference to Appendix FM  in relation  to bereaved spouses or  victims of domestic violence.

  • INDEFINITE LEAVE TO REMAIN AS A BREAVED SPOUSE

Section BPILR of Appendix FM makes provision for a partner of a British Citizen or a person settled in the UK who is bereaved during the probationary period to be granted indefinite leave to remain in the UK, provided that the relationship was subsisting and that they intended to live together permanently in the UK at the time of the death of the applicant’s partner.

The applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain.

To meet the eligibility requirements for indefinite leave to remain as a bereaved partner, all the requirements in paragraphs E-BPILR.1.2.to 1.4. must be met.

The applicant’s last grant of limited leave must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK or a bereaved partner.

The person who was the applicant’s partner at the time of the last grant of limited leave as a partner must have died. At the time of the partner’s death, the relationship between the applicant and the partner must have been genuine and subsisting and each of the parties must have intended to live permanently with the other in the UK.

If the applicant meets all of the requirements for indefinite leave to remain as a bereaved partner the applicant will be granted indefinite leave to remain. If the applicant does not meet the requirements for indefinite leave to remain as a bereaved partner only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds. If the applicant does not meet the requirements for indefinite leave to remain as a bereaved partner, or limited leave to remain as a bereaved partner under paragraph D-BPILR.1.2., the application will be refused.

The rules relating to indefinite leave to remain for bereaved partners are intended to benefit only those applicants whose partner has died at any point during the qualifying period of limited leave as a partner and who make their application whilst they still have entry clearance or leave to remain as a partner in the UK.

The Rules should also be applied to cases where the applicant’s partner dies after an application for indefinite leave to remain has been submitted but before a decision has been reached.

Home Office Guidance provides that an applicant for indefinite leave to remain as a bereaved partner does not need to comply with the requirement not to have overstayed by more than 28 days (at paragraph E-LTRP.2.2.), provided that the circumstances of any period of overstaying relate to a period of bereavement and where compassionate considerations therefore apply.

An application made out of time where all the other requirements of the rules are met should  therefore be considered sympathetically. An application should not normally be refused solely on the grounds that the applicant is in the UK without leave. Acceptable reasons for the delay in making an application could be that the partner’s death only occurred shortly before the application for settlement was due or that the distress of bereavement has led the applicant to overlook or not address the need to regularise their immigration status.

The applicant is required to provide their own passport as well as  provide their late partner’s death certificate .

As much evidence as possible is required to show  that  the applicant and  their  late partner were living together as a couple from the time they  were granted leave to enter or remain in the UK as his or her partner until his or her death, such as letters, bills and other correspondence from official sources addressed to both or each of  them  at the same address.

The relevant application form is SET(O) and for single applicant there is currently a fee of £1500 to pay.

As per Home Office Guidance, “Knowledge of language and life in the UK for settlement and naturalisation, Statement of Intent, changes to the requirement from October 2013 April 2013”, the   Home Office recognise that some groups are in a particularly vulnerable situation prior to obtaining permanent residence in the UK. The knowledge of language and life in the UK (the KoLL) requirement does not therefore apply to applications for settlement from spouses of British citizens or persons settled in the UK who have been victims of domestic violence or whose spouse has died.

There is no need to  meet the maintenance  or accommodation requirements.

The applicable Home office  Guidance  in reference to  the bereaved partner category can be found from  Section 16 of the  “Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a  Family Life (as a Partner or Parent):  5-Year Routes  August 2015”.

  • VICTIMS OF DOMESTIC VIOLENCE

The provisions in the Immigration Rules allow those who have leave in the UK as the partner of someone with the right of permanent residence and whose relationship has genuinely broken down, because of domestic violence, during their probationary period of leave, to be granted indefinite leave to remain .

The relevant and current Home Office Guidance is  “Victims of domestic violence – version 13.0 Published for Home Office staff on 29 May 2015”.

To meet the eligibility requirements for indefinite leave to remain as a victim of domestic violence the applicant must meet all the requirements of paragraphs E-DVILR.1.2 and 1.3.

The applicant’s relationship with their partner must have broken down permanently as a result of domestic violence.

If the applicant meets all of the requirements for indefinite leave to remain as a victim of domestic violence the applicant will be granted indefinite leave to remain.

If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic violence only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months. If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic violence, or further limited leave to remain under paragraph D-DVILR.1.2. the application will be refused.

Destitution domestic violence (DDV) concession:

The destitution domestic violence (DDV) concession  has been effective from 1 April 2012.

A person who flees domestic violence and intends to make a claim for settlement can notify the Home Office if they wish to be considered for limited leave under the DDV concession. This is on the basis that they claim to be destitute.  The Home Office operates this policy outside of the Immigration Rules. Where successful, the home office grant under this concession three months limited leave to remain outside the rules with recourse to public funds. This  is intended to  give the applicant access to  vital services such  as temporary accommodation to a  refuge in order to leave their abusive partner and submit a settlement application under the domestic violence rules.

Applicants must submit their SET(DV) application before their 3 months limited leave expires. The Home Office encourages those who are granted three months leave to remain to submit a SET(DV) application within eight weeks of their initial grant to make sure their case is considered before their concession leave expires.

Where an applicant fails to submit their SET(DV) application within the three months limited leave they become an overstayer and will become subject to removal.

To benefit under the DDV concession victims of domestic violence who need access to public funds, must complete and submit the LOTR (DDV) notification form to the Home Office using the email address Domestic.Violence@homeoffice.gsi.gov.uk where possible.

 Definition of Domestic  Violence:

The government introduced a new definition of domestic violence from 31 March 2013.

The definition of domestic violence and abuse is any incident or pattern of incidents controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. The abuse can include, but is not limited to,  psychological; physical; sexual ; financial; emotional; controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by; isolating them from sources of support; exploiting their resources and capacities for personal gain; depriving them of the means needed for independence; resistance and escape; regulating their everyday behaviour ; coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation; other abuse that is used to harm, punish, or frighten their victim.

There is no difference between psychological (mental) abuse and physical abuse when it comes to assessing if a person has been the victim of domestic violence.

In the domestic violence context, family members, whether directly related, in-laws or step-family, are defined as: mother; father; son; daughter; brother; sister; grandparents.

The legal definition of injury is when any harm is done to a person by the acts or omissions of another.

The rules are only for people who have been the victim of domestic violence during their probationary period of leave.

The rules are not intended to benefit people whose relationship broke down because they were the perpetrator of domestic violence or where the relationship broke down for reasons other than being a victim of domestic violence.

Home Office Guidance states that the fact that the relationship broke down due to domestic violence during the very early stages of the probationary period is not an adverse factor in reaching a decision. If an applicant meets the requirements in the Immigration Rules,   the decision maker  must grant settlement regardless of how much of the probationary period is completed.

The Home Office can accept  that the relationship was subsisting when domestic violence occurred if evidence is provided that the couple were living at the same address when the incident took place. The fact the couple are still living at the same address when the application is made is not  to be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.

Evidence to Prove Domestic Violence:

In order to prove that domestic violence has occurred the applicant needs to  submit supporting documents with their application.

The Home Office is required to  take a relevant court conviction or  full details of a relevant police caution issued against the sponsor against the sponsor  as proof of domestic violence

Without notice (also called ex-parte) order : A without notice order is a type of interim order. Courts give these orders when they think it necessary to set out conditions of an injunction immediately even though the respondent (the alleged perpetrator of the violence) does not know an injunction is being sought. Because a without notice order is given on the basis of a perceived risk rather than a finding of fact or admission of guilt, the Home Office  cannot accept them as proof of domestic violence.

Interim order :An interim order is an order which sets out the conditions the respondent must meet until a final hearing. The Home Office must  take these as proof domestic violence has occurred.

 Final order :Final orders are made where there has been a full hearing and are made for a specified period or until a further order (indefinite) is issued. The judge will give some final orders as a ‘finding of fact’.  The Home Office  must take these as proof that domestic violence has occurred.  The court order will state if there is ‘no finding of fact’.  If this is the case, the giving of the non-molestation order is not evidence on its own domestic violence has occurred.  In such circumstances, if not already provided,  the decision maker is required to request all the evidence submitted to the court and make a decision based on all the evidence provided.  The decision maker is required to reflect on what a judge considers when he or she gives an order, the consistency and credibility of evidence provided and the standard of proof required by immigration law when making a decision based on such evidence.

The Home Office  Guidance states that some evidence may suggest domestic violence has occurred but the alleged perpetrator has not been found guilty by a court or admitted to guilt. These include a non-molestation order or letter from the Chair of a multi-agency risk assessment conference (MARAC. The decision maker is  required to  treat this evidence with caution and consider it along with all evidence supplied.
The Home Office Guidance details some evidence that might be available and  which is  considered would help prove domestic violence. It is not an exhaustive list:

  • “ medical report from a doctor at a UK hospital which confirms the applicant has injuries consistent with being a victim of domestic violence – these may not be physical injuries – for a definition of injuries see Definition of domestic violence
  •  a letter from a General Medical Council (GMC) registered general practitioner which confirms they examined the applicant and are satisfied the applicant had injuries consistent with being a victim of domestic violence
  •  a report or letter from a doctor employed by HM Forces confirming the applicant has injuries consistent with being a victim of domestic violence
  •  an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence – however many undertakings are given in order to resolve a non-molestation order proceeding without further costs and hearings:
  • an undertaking is not an admission of guilt and a power of arrest cannot be attached to it. There is equal chance the applicant has given an undertaking to court themselves – you must investigate whether this is the case by either consult with your senior caseworker or write out for further information
  •  police report which confirms attendance at an incident resulting from domestic violence
  •  letter from a social services department which confirms its involvement in connection with domestic violence
  •  if appropriate, letter from a welfare officer connected to HM Forces
  •  letter of support or a report from a domestic violence support organisation or, if appropriate, from an organisation providing support to family members of HM Forces”.

Home Office decision makers are required to treat with caution all witness statements from friends or family and letters from official sources that relay  reports by the applicant but do not confirm the incident. This type of evidence is required  to be verified where possible and treated as additional evidence when  the decision maker  builds  the case background.

If an applicant submits evidence to show they have been subjected to domestic violence from someone other than their partner, they can still qualify for settlement under the rule. Evidence must clearly show the violence has been the reason for the breakdown of the relationship, for example where the person who abuses the applicant is a member of the sponsor’s family and against whom the sponsor offers no protection.

Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR.1.1 of Appendix FM of the Immigration Rules for indefinite leave to remain (ILR) as a victim of domestic violence do not require a person to have valid leave to remain in the UK at the time of application. The rules only require a person to have or previously been admitted or granted as a spouse; civil partner; un-married partner or  same-sex partner.

If an application is received from a person without valid leave to remain in the UK, the home office will consider the reason the application was  out of time and must make a judgement on whether this affects the assessment of the evidence submitted in support of the application.

As regards domestic violence applications, the home office can  delay a decision on the application until the outcome of a hearing if they have confirmation from the court the case is listed to be heard  and the date the case is due to be heard. Submitting a domestic violence application in time  is  however important   rather than await the outcome of the final proceedings because if the application is refused when submitted as an overstayer, there is likely to be no right of appeal.

The relevant application  form  is SET(DV)  for a  single applicant and there is currently  a fee of £1500 to pay.  Applicants  may  claim an exemption from paying the fee  if they  are destitute. A person who appears to be destitute will be exempt from paying the application fee for indefinite leave to remain as a victim of domestic violence.  If the applicant claims to be destitute they must submit the SET(DV) application form as normal, but will not submit the specified fee. They must provide a letter which says why they are destitute and provide additional evidence to show they:

  • do not have access to enough funds to pay the specified application fee;
  •  have total and necessary reliance on a third party for essential living costs, such as basic accommodation and food . If a person shows they are totally reliant on third party support,   the home office considers  them destitute.

As per Home Office Guidance, “Knowledge of language and life in the UK for settlement and naturalisation, Statement of Intent, changes to the requirement from October 2013 April 2013”, the Home Office recognise that some groups are in a particularly vulnerable situation prior to obtaining permanent residence in the UK.. The knowledge of language and life in the UK (the KoLL) requirement does not therefore apply to applications for settlement from spouses of British citizens or persons settled in the UK who have been victims of domestic violence or whose spouse has died.

There is no need to  meet the maintenance  or accommodation requirements.

  • DIRECT FAMILY MEMBERS

Currently the relevant Home Office Guidance is “Direct Family Members of European Economic Area (EEA) nationals – v3.0 Published for Home Office staff on 29 September 2015”.

Direct family members of European Economic Area (EEA) nationals must come within the definition of a family member in Regulation 7 of the Immigration (European Economic Area) Regulations 2006 (as amended).

Family members who come under regulation 7(1)(a), (b) and (c) of the Immigration (EEA) Regulations 2006 are often called ‘direct’ family members.

The following can be considered as direct family members:

  • spouse or civil partner;
  • direct descendants of the EEA national or their spouse or civil partner who are: dependants of the EEA nationals or their spouse or civil partner
  • under the age of 21;
  • dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner An EEA or Swiss national and their direct family members’ right of residence does not depend on holding a document issued under the EEA regulations. Direct family members do not have to apply for documentation using one of the EEA applications forms. Current Home Office Guidance states that the   home office can accept a letter asking to be considered under European law and that they must not reject an application because an application form has not been used or fully completed. Current Home Office Guidance also states that unless a family member holds a qualifying EEA State residence card issued in Germany or Estonia, non-EEA family members of an EEA national seeking entry into the UK must apply for an EEA family permit if they do not have a residence card or permanent residence card. However, it is possible for them to demonstrate their right of admission under EU law at the UK border if they do not have one of these documents. Although persons with a right to reside as a direct family member do not need to complete an application form, they can apply for a document using the following forms:
  • EEA(FM) – application for a registration certificate (EEA national) or residence card (non-EEA national).
  • EEA(PR) – application for a document certifying permanent residence (EEA national) or permanent residence card (non-EEA national).From 1 July 2013, each applicant applying under EEA provisions must pay a fee(£65.00) for consideration of their application. EEA family permit applications are still free of charge. In line with the Immigration (Provision of Physical Data) Regulations 2006 (as amended), from 31 March 2015, a non-EEA national applying for a residence card, derivative residence card or permanent residence card has to enrol their biometrics in order to be issued a document confirming their right to reside in the UK under European Union law. Direct family member are required to undertake and submit the following:
  • pay the specified fee;
  • give their biometric information, if they need to do so;
  • a valid passport or identity card for the EEA national sponsor ;
  • their own valid passport (or identity card if they are an EEA national) ;
  • evidence the sponsor is a qualified person or has permanent residence;
  • a spouse – a marriage certificate;
  • a civil partner – civil partnership certificate;
  • evidence of relationship to the sponsor child or stepchild – documents which name the EEA national sponsor or their spouse as the parent, for example a full birth certificate;
  • adopted child – a legal adoption document;
  • a relative in the ascending line must produce documents to show the full ascending line, for example: a father or mother must produce their child’s birth certificate naming them as the parent; a grandfather or grandmother must produce their child’s birth certificate naming them as the parent, and their grandchild’s birth certificate, which names their parent

The EEA national sponsor does not need to have applied for or been issued with a registration certificate before a direct family member applies.

Residence cards issued to  direct family members are valid for a maximum of five years.

If the family members have lived in the UK for a continuous period of 5 years, direct family members of an EEA national sponsor are allowed to live in the UK on a permanent basis. They must meet all the conditions of regulation 15(1)(a) or (b) of the Immigration (EEA) Regulations 2006. Permanent residence cards are valid for 10 years and can be renewed, unless the right of permanent residence is lost.

Dependency:

A child aged 21 or over and any relatives in the ascending family line must prove they are dependent on the EEA national sponsor or their spouse or civil partner. Where dependency is necessary, the family member does not need to be living or have lived in an EEA state where the EEA national sponsor also lives or has lived. Their dependency on the EEA national sponsor does not need to have existed before they came to the UK. This follows from the Court of Appeal judgment in the Pedro case.

In order to consider essential living needs, the decision maker is required to consider whether the applicant needs financial support to meet their essential needs from the EEA national, their spouse or civil partner. Where the applicant cannot meet their essential living needs without the financial support of the EEA national, they are  to  be considered dependent even if they also receive financial support or income somewhere else

Home Office Guidance states that the decision maker does not  need to consider the reasons why the applicant needs the financial support or whether they are able to support themselves by working.  Essential needs include accommodation, utilities and food. Dependency must be shown by financial documents that show money being sent by the sponsor to the applicant.

If the applicant is receiving financial support from the EEA national as well as others, they must show that the support from the EEA national is supporting their essential needs. The applicant does not need to be dependent on the relevant EEA national to meet all or most of their essential needs. For example an applicant can still be considered dependent if they receive a pension to cover half of their essential needs and money from the relevant EEA national to cover the other half.

The applicant must provide proof of their dependency such as bank or building society statements; evidence of money transfers; evidence of living in the same household if applicable; other evidence to show their EEA national sponsor has enough money to support them and the applicant is reliant on them for this.

Where they cannot provide valid proof to show they are currently dependent on their EEA national sponsor, or the sponsor’s spouse or civil partner,  the decision maker is  required to  check the guidance for extended family members to see if they satisfy the conditions of Regulation 8(2) of the  2006 Regulations.

Unless there are public policy, public security or public health grounds which would justify a refusal, and the EEA national sponsor provides the required evidence,   the home office are required to    issue a registration certificate (if the applicant is an EEA national), a  residence card (if the applicant is a non-EEA national)

EEA nationals and their family members can be removed from the UK on the grounds of public policy; public security  or public health

  • RETAINED RIGHTS OF RESIDENCE

Currently the relevant Home Office Guidance is “ Family members of European Economic Area (EEA) nationals who have retained the right of residence – v2.0 Valid from 7 April 2015”

Regulation 10 of the EEA Regulations  provides for certain family members of EEA nationals to keep their right of residence in the UK under Regulation 10 when the EEA national:

·         dies – regulation 10(2)

·         leaves the UK – regulation 10(3)

·         divorces their spouse or dissolves their civil partnership – regulation 10(5)

·         the family member is the parent of a child who retains the right of residence – regulation 10(4

The family member will retain the right to reside in these circumstances if they can satisfy the relevant conditions of Regulation 10. If the family member cannot satisfy the conditions, the  home office will  refuse their application and revoke any registration certificate or residence card that has already been issued.

Extended family members who have previously been recognised as the family member of an EEA national under the Regulations may retain the right of residence in certain circumstances. To benefit from the provisions of regulation 10, a family member must have been issued with either a residence card, or a registration certificate

Death of the EEA national sponsor: regulation 10(2

To qualify under regulation 10(2) the applicant must meet the following conditions:

·         the EEA national died on or after 30 April 2006 and was a qualified person or had a right of permanent residence when they died;

·         the applicant was living in the UK for at least one year immediately before the EEA national’s

·         death as:

-a family member of the EEA national qualified person, or

an EEA national with a permanent right of residence

·         they would be a worker, self-employed person, or self-sufficient person if they were an EEA national, or they are the family member of a non-EEA national who is a worker, self-employed or a self-sufficient person.

They must also remain a worker or self-employed person or a self-sufficient person to continue to retain their rights under the Regulations. Students and jobseekers: Home Office Guidance states that a non-EEA national who is a student or a jobseeker does not meet these conditions, unless they have enough resources to be self-sufficient.

If the non-EEA national meets the conditions of Regulation 10 but later becomes a student or  jobseeker they will no longer have the retained right of residence unless they have enough resources to be self-sufficient.

The  retained right of residence will end if the applicant subsequently obtains the right of permanent residence.

Upon submission of the application, the applicant must provide evidence of :

·         Their nationality. This must be their valid passport or identity  card;

·         The nationality of the EEA national sponsor. This must be a valid passport or     EEA ID card;

·         Their relationship to the EEA national;

·         The EEA national’s death certificate;

·         The EEA national exercising  free movement rights at the time of their death;

·         Their residence in the UK as the family member of an EEA national for at least     one year immediately  before the EEA national’s  death;

·         That they are a worker, self employed, or self sufficient person  of the family member of such a person

Direct descendants who retain right of residence: regulation 10(3):

The direct descendants (either EEA or non EEA) of an EEA national can retain a right of residence in certain circumstances. This is in line with regulation 10(3) of 2006 Regulations.

Direct descendants include children, grandchildren, and great-grandchildren

Direct descendants may meet the requirement of regulation 10(2). However, if they do not meet the requirement of 10(2) then they may still meet the requirements of regulation (10) (3).

A direct descendant will meet the conditions of regulation 10(3) when they are the direct descendant of:

·         a qualified person or an EEA national with a permanent right of residence who has died on

or after 30 April 2006

·         a person who ceased to be a qualified person when they ceased to reside in the UK, or

·         the spouse or civil partner of the qualified person or the EEA national with a permanent

right of residence referred to in the first sub bullet when they died, or is the spouse or civil partner of a person referred to in the second sub bullet;

·         they were attending an educational course in the UK immediately before the qualified person, or the EEA national with a permanent right of residence, died or ceased to be qualified and they continue to attend that course. If the direct descendant was not in education immediately prior to the EEA national sponsor dying

or leaving the UK then they do not meet the conditions of Regulation 10(3).

A direct descendant’s right of residence will end as soon as they gain the right of  permanent residence, or they finish education.

When submitting an application, the applicant  must provide evidence of

·         Their nationality. This must be their valid passport or identity card;

·         Their relationship to the EEA national;

·         The EEA national’s    death certificate;

·         Proof the EEA national has left the UK, if applicable;

·         The EEA national exercising free movement rights prior to death or their leaving the UK;

·         The child being educated in the UK immediately prior to the EEA national leaving the UK

or dying ;

·         The child’s continuing education in the UK, eg a letter from their school ;

Parent of a child who retains the right of residence: regulation 10(4):

The parent of a child/children of an EEA national can retain a right of residence in certain circumstances. This is in line with regulation 10(4) of the EEA Regulations.

It will mainly be non-EEA national parents who apply under this regulation however an EEA national parent who is not a qualified person in their own right may also apply under this regulation..

If the applicant has custody of a child who satisfies the conditions of regulation 10(3), they will

retain the right of residence under regulation 10(4) in the following circumstances:

·         for as long as their child also retains this right of residence under regulation 10(3);

·         where the child reaches the age of 21 (unless the child needs their parent to stay in order to allow them to complete their education):

·         until the parent no longer has custody of the child, or

·         until the parent gains the right of permanent residence.

Where a person is claiming a retained right of residence on the basis of that they are the parent of a child with a retained right under regulation 10(3) reaches the age of 21, they will have a continued right of residence only where the child requires their presence to be able to continue their education in the UK. In such instances, only evidence that shows the adult child’s dependence on the parent

is due to a severe physical or mental disability is likely to be considered to demonstrate that the

adult child would be unable to continue their education if their parent did not continue to have a right to residence in the UK. The Home office consider that such cases are likely to be rare and will need to be considered on an individual basis.

The applicant must provide the same evidence that their child must provide as set out above. They must also provide  evidence of the following:

·         Their     nationality. This must be a valid passport or ID card;

·         Being the parent of the child;

·         Their relationship to the EEA national;

·         The custody of the child if appropriate;

·         Their custody of the child if appropriate, for example a court order or a letter that has been officially sworn by a solicitor confirming that the parent has custody.

End of relationship with EEA national sponsor: regulation 10(5):

The non-EEA national spouse or civil partner of an EEA national can, in certain circumstances,

retain a right of residence when their relationship ends. This is in line with regulations 10(5) of the EEA Regulations .

If a non-EEA national separates from their EEA national spouse or civil partner they remain a

family member with the right to live in the UK for as long as they are married to, or in a civil partnership with, an EEA national sponsor who continues to exercise free movement rights in the UK, or who has acquired a right of permanent residence. They continue to have a right to live in the UK until such time as either:

  •  a divorce is finalised and a decree absolute is issued
  •  the marriage is annulled or
  •  the civil partnership is dissolved

Once the marriage or civil partnership has been officially ended, the non-EEA spouse or civil

partner, and anyone who was related to the EEA national sponsor by marriage, must meet the requirements of regulation 10(5) in order to retain a right of residence in the UK.

A non-EEA national spouse or civil partner will lose their right of residence if: the EEA national leaves the UK while they are still married or in a civil partnership (meaning they are no longer a ‘qualified person’), and the non-EEA national does not qualify for a retained right of residence under any other part of Regulation 10.

The relationship is considered to have been terminated on the date that the following documents  are issued:

  •  Decree Absolute;
  •  Decree of Annulment, or
  •  Certificate of Dissolution.

The relationship must have terminated on or after 30 April 2006 when the Regulations  came in to force. If it terminated before this date then the applicant cannot have retained a right of residence.

A non-EEA national who is a student or a jobseeker does not meet the relevant conditions, unless they have enough resources to be self-sufficient. If the non-EEA national meets the conditions of Regulation 10 but later becomes a student or jobseeker they will no longer have the retained right of residence unless they have enough resources to be self-sufficient.The applicant must provide evidence of:

·         Their nationality. This must be their valid passport and ID card;

·         The nationality of the EEA national sponsor which must be a valid passport or EEA national ID;

·         The identity     of the EEA national exercising free movement rights at  the time the relationship was terminated;

·         The marriage   or civil partnership lasting at least 3 years immediately before the initiation

or proceedings for divorce, annulment or dissolution;

·         Their residence in the UK for at least one year during the marriage;

·         The termination of their relationship with the EEA national on or after 30 April 2006. This could be a Decree Absolute; Decree of Annulments or Certificate of Dissolution

·         Being a worker, self-employed person or self- sufficient person or the family member of such a person.

Applicants who cite domestic violence or    other difficult  circumstances as reasons  for the end of their relationship are required to  provide extra evidence.

Domestic violence: Home Office using discretion to make enquires on applicant’s behalf:

The relevant Home Office Guidance in this    regards  is “Direct Family Members of European Economic Area (EEA) nationals – v3.0 Published for Home Office staff on 29 September 2015.

 When the relationship between a family member and their EEA national sponsor has ended and domestic violence or other difficult issues are cited in the application, they may apply to retain their right of residence under regulation 10(5)(d)(iv) of the EEA Regulations. The Home Office Guidance acknowledges   that  where  there has been a breakdown in the relationship between the applicant and their EEA national sponsor, it may not always be possible for them to get the documents needed to support their application such as proof of the EEA  national sponsor’s nationality and evidence they are exercising free movement rights.

The Guidance provides that decision makers must take a pragmatic approach if the applicant

provides proof to show they were the victim of domestic violence and cannot provide evidence relating to their EEA national sponsor’s nationality or free movement rights as asking them to do  so in these circumstances could put the applicant at risk. It is  considered that the pragmatic  approach does not apply if there has been a breakdown in the relationship but there is no element of domestic violence involved.

The Home Office further acknowledge that applicants may have difficulty providing evidence to cover a continuous 5 year period when they are applying for a document confirming a permanent

right of residence. If there are periods of time that the applicant cannot provide documents for or where checks with Her Majesty’s Revenue & Customs (HMRC) do not cover the full 5 year period  the decision maker is  required to  must discuss the case with  their  senior caseworker.

They will decide whether to apply discretion based on the individual circumstances of the case.

The senior caseworker is required look at the amount of information provided by the applicant along with the level of evidence that has been gathered. If it is agreed with the  senior caseworker  that     the decision maker  can make additional enquiries, the applicant must give  as much detail as  they can about the EEA national sponsor. If the applicant cannot provide proof of the EEA  national sponsor’s identity, nationality or proof of relationship, then the decision maker must check existing records to see if their identity has been established in any previous applications.

If the applicant can give the name of the EEA national sponsor’s employer or their place of study or if existing records   hold these details,  the  Home Office  can contact the employer or educational establishment to enquire if the EEA national sponsor is working or studying there – the decision to contact the employer or educational establishment must be made according to the facts of the individual case and along with a senior caseworker and  the decision maker  must not mention the domestic violence to the employer or educational establishment.

Where the decision is made not to get information directly from the EEA national’s employer or educational establishment,   the  decision maker  must make enquiries with Her Majesty’s Revenue & Customs (HMRC) to try and gather the necessary information, for example because of the exceptional circumstances of the case or because the EEA national is self-employed

Home Office Guidance states that it will not be possible to make enquiries on behalf of the applicant if the EEA national sponsor is exercising free movement rights as a self-sufficient person; is studying but the applicant cannot state where; needs to have comprehensive sickness insurance, but no previous application has been made for a registration certificate and the applicant is unable to provide evidence of comprehensive sickness insurance for themselves and the EEA national.

In such cases, and where any enquiries the decision maker  has made on behalf of the applicant  have not given  the information needed,  the decision maker  must discuss the case with  their senior caseworker. They will then decide if  they  can apply discretion based on the particular circumstances of the case.  If they decide that the decision maker  cannot apply discretion then the decision maker refuse the application.

CONCLUSION

Although there might at times be  citable  deficiencies  and  problems  in relation to  some of the statutory  provisions  themselves,  at least for applicants able to  fulfil the relevant requirements, they are able to place reliance upon them and this is even more the important  having regard  ton the need to safeguard the welfare and best interests of the children the foreign spouse might have had with the deceased or divorced Sponsor.

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