What usually proves problematic for non EEA family members seeking to assert their rights following divorce and upon application, is that having regard to the EEA Regulations and current accompanying Home Office Guidance, in addition to other evidence, they will be required to provide documentation relating to the EEA National Sponsors’ identity and nationality as well as evidence that the EEA national was exercising free movement rights at the time that the parties divorced. An affected applicant’s inability to provide the EEA national’s valid passport or nationality identity card or evidence of the EEA national’s employment at the relevant date of divorce might result in a refusal of that application.

Overall, depending on the facts of a case, prior to application a divorced non EEA family member applicant may need to have regard to the following:

 

• Needing to ensure that the application for residence documentation is accompanied or joined by the evidence or proof required by the 2016 EEA Regulations

• Ensuring that the specified documentation required to accompany the retained rights of residence application has been submitted

• Making sure that the applications is validly submitted to avoid its rejection without any substantive consideration

• Submission of relevant documentation to ensure that they will be issued a long Certificate of Application so that they can start or continue in employment whilst their application is pending

• In the event that the application might refused, prior consideration of whether they have provided relevant documentation to obtain a right of appeal

• Awareness that their existing residence card can be revoked

Introduction:

 

Family members of European Economic Area (EEA) nationals can retain the right of residence in the UK where a marriage or civil partnership has terminated. 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. The family members of the former spouse or civil partner may also retain a right of residence. This is in line with regulations 10(5) of the 2016 regulations. The family member will retain the right to reside in these circumstances if they can satisfy the relevant conditions of regulation 10.

 

Once the marriage or civil partnership has been officially terminated, 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

 

The regulations provide for certain family members of EEA nationals to keep their right of residence in the UK under regulation 10 when:

 

• the EEA national, either:

-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)

A person can acquire permanent residence in a number of ways, most commonly if they have resided in the UK in line with the regulations for a continuous period of 5 years. This can include time spent as a family member who has retained a right of residence under regulation 10 of the 2016 EEA Regulations.

The Problem – divorced non EEA family members:

 

The requirements of Regulation 10(5) provide that a person who ceases to be the family member of an EEA national sponsor because of a divorce, or annulment or a dissolution of civil partnership will retain a right of residence where all the following conditions are met:

 

• the EEA national was a qualified person, or had permanent residence, on the date of the termination of the marriage or civil partnership.

• the applicant was residing in the UK in accordance with the regulations at the date of termination and either: -the applicant is not an EEA national but if they were, they would be a worker, self-employed person, or self-sufficient person in line with regulation 6 ;- the applicant is the family member of the person described in the bullet above

• the applicant meets the requirements of either regulation 10(5)(d)(i), (ii), (iii), or (iv) of the 2016 regulations.

 

To meet the conditions of regulation 10(5)(d)(i) the applicant must have:

 

• been married to, or in a civil partnership with, the European Economic Area (EEA) national for at least 3 years immediately before beginning proceedings for divorce, annulment or dissolution

• lived in the UK with the EEA national sponsor for at least one year during the time of their marriage or civil partnership

In line with regulation 10(6) of the 2016 regulations, to be eligible to retain the right of residence, the non-EEA national must be undertaking activities similar to those of a qualified person. This means they must be either a:

 

• worker

• self-employed person

• self-sufficient person

They must also remain a worker, self-employed person or a self-sufficient person to continue to retain their rights under the regulations and in order to acquire permanent residence.

 

Regulation 21(2) and (5) of the 2016 Regulations specifically provides:

“Procedure for applications for documentation under this Part and regulation 12This section has no associated Explanatory Memorandum

21.(1) An application for documentation under this Part, or for an EEA family permit under regulation 12, must be made—

…………….

(2) All applications must—

(a)be accompanied or joined by the evidence or proof required by this Part or regulation 12, as the case may be, as well as that required by paragraph (4), within the time specified by the Secretary of State on http://www.gov.uk; and

(b)be complete.

……………………………….

(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national”.

 

Home Office Guidance Free movement rights: retained rights of residence  and Processes and procedures for EEA documentation applications is clear that when a non-EEA national has previously been issued a residence card, this only demonstrates that they had a right to reside under the regulations on the date it was issued. If they later apply for confirmation of a retained right of residence, the Home Office Caseworker must request evidence, where necessary, so they are satisfied that the applicant meets the relevant requirements/conditions relating to retained rights.

 

Home Office Guidance Free movement rights: retained rights of residence also states that where the applicant has already been issued a document confirming they have a retained right of residence, they would only need to show that they continue to meet the conditions in regulation 10(6). This means showing they are a worker, self employed person or self-sufficient person and that they have resided in the UK for a continuous period of 5 years.

In practice however, where a person has previously been issued with a residence card valid for 5years confirming that they have retained a right of residence as a divorced non EEA family member, upon applying for permanent residence, Home Office Caseworkers are requiring original evidence of exercise of treaty rights for the EEA national previously seen by the Home Office 5years prior and even evidence of the EEA sponsor’s nationality and identity  once again despite a considerable period of time having elapsed. In most cases evidence, such as payslips or P60 certificates would have been  destroyed, misplaced or even retained by the EEA national Sponsor. In any of these circumstances, the EEA national might have left the UK following divorce or the parties might have parted acrimoniously with a forgone conclusion reached even prior to application of little or no chance in obtaining the required documentation from the EEA national.

 

RETAINED RIGHTS AND THE RELEVANT PROVISIONS: CITIZEN DIRECTIVE AND 2016 EEA REGULATIONS:

 

 

The Citizens Directive:

 

The Citizens Directive 2004/38/EC provides as follows:

Preamble 14 provides:

 

“(14) The supporting documents required by the competent authorities for the issuing of a registration certificate or of a residence card should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members”.

Article 13 Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

 

“1.   Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

 

2.Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

 

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).

 

Such family members shall retain their right of residence exclusively on personal basis.”

Article 14 Retention of the right of residence

“1.   Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2.Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

 

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically”.

Article 7 Right of residence for more than three months

“1.   All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

 

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2.The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

3.For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment”.

 

Article 10 Issue of residence cards

“The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2.For the residence card to be issued, Member States shall require presentation of the following documents:

(a) a valid passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen…………”

 

Article 11 Validity of the residence card

“1.   The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years.

2.The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country”.

 

 

The 2016 EEA Regulations:

 

The 2016 EEA Regulations provide as follows:

 

“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 paragraphs (8) and (9), a person who satisfies a condition in paragraph (2), (3), (4) or (5).

……………………………………………………………………..

(5) The condition in this paragraph is that the person (“A”)—

(a)ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on the termination of the marriage or civil partnership of A;

(b)was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c)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;

………………………………………….

(6) The condition in this paragraph is that the person—

(a)is not an EEA national but would, if the person 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).

…………………………………………….

(8) A person (“P”) does not satisfy a condition in paragraph (2), (3), (4) or (5) if, at the first time P would otherwise have satisfied the relevant condition, P had a right of permanent residence under regulation 15.

(9) A family member who has retained the right of residence ceases to enjoy that status on acquiring a right of permanent residence under regulation 15”,

 

“Issue of residence card

18.(1)

…………………………………

(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of—

(a)a valid passport; and

(b)proof that the applicant is a family member who has retained the right of residence.

(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State must immediately issue the applicant with a certificate of application for the residence card and the residence card must be issued no later than six months after the date on which the application and documents are received.

…………………………………………

(6) A residence card issued under this regulation is valid for—

(a)five years from the date of issue; or

………………………………………..

 

(7) A residence card—

(a)must be called “Residence card of a family member of an EEA national”;

(b)is proof of the holder’s right to reside on the date of issue;

(c)is no longer valid if the holder ceases to have a right to reside under these Regulations;

(d)is invalid if the holder never had a right to reside under these Regulations.

(8) This regulation is subject to regulations 24 and 25”.

RETAINED RIGHTS – PERMANENT RESIDENCE AND THE RELEVANT PROVISIONS OF THE CITIZEN DIRECTIVE AND 2016 EEA REGULATIONS:

 

The Citizens Directive:

 

The Citizens Directive 2004/38/EC provides as follows:

“Article 18 Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State

Without prejudice to Article 17, the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State”.

“Article 20 Permanent residence card for family members who are not nationals of a Member State

1.Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every ten years.

2.The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions.

3.Interruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card”.

 

 

The 2016 EEA Regulations:

 

The EEA 2016 Regulations state as follows:

 

“Right of permanent residence

15.(1) The following persons acquire the right to reside in the United Kingdom permanently—

……………………………………………..

(f)a person who—

(i)has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii)was, at the end of the period, a family member who has retained the right of residence.

…………………………………….

(4) A person who satisfies the criteria in this regulation is not entitled to a right to permanent residence in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect”.

 

“Issue of a document certifying permanent residence and a permanent residence card

19.(1) 

……………………………………..

(2) The Secretary of State must issue a person who is not an EEA national who has a right of permanent residence under regulation 15 with a permanent residence card no later than six months after an application is received and the production of—

(a)a valid passport; and

(b)proof that the person has a right of permanent residence.

(3) Subject to paragraph (4) a permanent residence card is valid for ten years from the date of issue and must be renewed on application.

(4) A document certifying permanent residence and a permanent residence card is—

(a)proof that the holder had a right to reside under regulation 15 on the date of issue;

(b)no longer valid if the holder ceases to have a right of permanent residence under regulation 15;

(c)invalid if the holder never had a right of permanent residence under regulation 15.

(5) This regulation is subject to regulations 24 and 25”.

 

THE REQUIREMENT TO PROVIDE DOCUMENTATION

 

Applications must be accompanied or joined by the evidence or proof required by the 2016 EEA Regulations:

 

Home Office Document Processes and procedures for EEA documentation applications contains the Guidance on applications for a document to confirm a right of residence in the UK.

 

From 1 February 2017, applications for documentation made under the 2016 regulations must:

 

• • be made online (where applicable) or by post or in person using the specified application form

  • be accompanied or joined by the evidence or proof required by the regulations within the specified time

  • be complete

  • in the case of applications for a residence card or derivative residence, be submitted while the applicant is in the UK

In line with regulation 21, an application for documentation must be accompanied or joined by the evidence or proof required by:

 

• part 3 of the 2016 regulations (Residence documentation), or regulation 12 (Issue of EEA family permit),

• regulation 21(5) (Procedure for applications for documentation under Part 3 and regulation 12)

Part 3 of the 2016 regulations (residence documentation) sets out the different residence documents (except for an EEA family permit which is covered at regulation 12) and the requirements which must be met in order for those documents to be issued. In line with regulation 21, the applications for documents must be accompanied or joined by the listed evidence or proof required by that Part or regulation 12.

Regulation 21(5) specifies that where an application for documentation is made by a person who is not an EEA national on the basis that they are, or were, the family member of an EEA national, or an extended family member of an EEA national, the application must be accompanied or joined by either a valid national identity card, or a passport for the EEA national sponsor.

 

Requirement for applications to be valid:

In line with regulation 21(4), applications can be rejected as invalid where, within the specified time period where for example, the requisite valid identification document or documents has not been submitted. In line with regulation 42, alternative evidence of identity and nationality may be accepted where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

In line with regulation 21(4), applications can be rejected as invalid where, within the specified time period:

 

• the incorrect fee, or no fee has been submitted

• the incorrect form, or no form has been submitted -each case must be considered on its individual merits and the Home Office caseworker must refer to a senior caseworker in all instances – in such circumstances, the caseworker may continue to accept an application submitted by post or in person which does not use the specified application form

• -in line with regulation 21(6) there may be circumstances beyond the control of the applicant which means that they are unable to comply with the requirement to submit an application online (where applicable) or using the specified form

• the requisite valid identification document or documents has not been submitted

• – in line with regulation 42, alternative evidence of identity and nationality may be accepted where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control

• the biometric sections have not been completed (where relevant)the relevant sections on the form have not been completed.

• the specified documents, proof or evidence have not been submitted

 

To qualify for a document certifying permanent residence or a permanent residence card (regulation 19), an application is only valid where it is submitted on the specified form, is complete, the relevant fee has been paid, and includes:

 

• • proof of identity, which is: -for EEA nationals – a valid national identify card or passport issued by an EEA state;  -for non EEA nationals, a valid passport

  • evidence to show they have a right to permanent residence, either because they have resided in the UK for a continuous period of 5 years and had a right of residence under the regulations throughout that period or because they fulfil one of the other qualifying conditions to obtain permanent residence

  • when applying as family member or extended family member of an EEA national, a valid passport or valid national identity card for the relevant EEA national sponsor

  • where relevant, evidence to show they are, or their family member is, an EEA national worker or self-employed person who has ceased activity

  • where relevant, evidence they were the family member of an EEA national worker or self-employed person who has died, they resided with that EEA national immediately before their death, and either: o the worker or self-employed person had resided continuously in the UK for at least the 2 years immediately before their death o the death was the result of an accident at work or an occupational disease

  • where relevant, evidence they have retained the right of residence and have resided in the UK for a continuous period of 5 years

Documents required for retained rights of residence applications:

 

Relevant Home Office Guidance Free movement rights: retained rights of residence provides that the documents/evidence that must be provided by family members of European Economic Area (EEA) nationals who are applying for a document for a retained right of residence as per Regulation 10(5) is as follows:

 

• of their identity and nationality through a:- valid EEA national ID card or passport issued by an EEA state if they are an EEA national; -valid passport if they are a non-EEA national

• of the identity and nationality of the EEA national sponsor, which must be a valid EEA national identity card or passport issued by an EEA state

• the EEA national was exercising free movement rights at the time the relationship was terminated or had permanent residence

• the marriage or civil partnership lasted for at least 3 years immediately before the start of proceedings for divorce, annulment or dissolution- the types of documents that must be provided can be found here: Free movement rights: direct family members of EEA nationals

• they resided in the UK for at least one year during the marriage – the types of documents that must be provided can be found here: Free movement rights: direct family members of EEA nationals

• their relationship with the EEA national has been terminated, such as a: -decree absolute, -decree of annulment,-certificate of dissolution

• they are a worker, self-employed person or self-sufficient person or the family member of such a person

 

Documents submitted to prove a retained right of residence must also be originals. Home Office Caseworkers cannot accept photocopies unless there are exceptional circumstances and the applicant gives valid reasons for not being able to provide the original document. In such circumstances, the Caseworker can accept a copy certified by the body or authority which issued the original or by a notary.

 

All documents not in English must be translated.

Retained Rights: documentation and consideration whether to issue a long Certificate of Application(COA):

 

A “long’ COA confirms a right to take employment while the application is under consideration. If an applicant has not submitted all of the evidence required, the Home Office Caseworker must issue a ‘short’ COA, which does not confirm a right to take employment. Anyone issued with a ‘short’ COA due to their failure to submit the required evidence cannot later be issued with a ‘long’ COA if they submit this evidence.

 

Guidance Processes and procedures for EEA documentation applications requires that the a Home Office Caseworker issue a ‘long’ COA to anyone who applies for a residence card because they retain a right of residence under regulation 10 provided that they submit the following evidence:

 

• a valid passport

• a valid national ID card or passport for the EEA national

• evidence of termination of relationship (for example, decree absolute, final order of dissolution of a civil partnership, death certificate) and either: – evidence the EEA national exercised free movement rights in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student at the date of the termination – evidence the EEA national had permanent residence in the UK at the date of the termination

Retained rights- refusal decisions and rights of appeal in relation to residence card applications:

 

Home Office Guidance Free movement rights: retained rights of residence provides that an application must be refused if the applicant:

 

• has not provided any valid proof of their own or the EEA national sponsor’s identity

• provides evidence of their own or the EEA national sponsor’s identity that is either:forged, -counterfeit

• has not provided any proof that they are related to the EEA national sponsor

• ceased to be the family member of an EEA national who was exercising free movement rights in the UK

• does not provide enough evidence to show that they meet the conditions of regulation 10

 

Regulation 36(4) provides a right of appeal to persons claiming to be a family member who has retained the right of residence provided certain documentation has been produced.

Retained rights- refusal decisions and right of appeal in relation to permanent residence card applications:

Regulation 15(1)(f) of the regulations states that a person will have a permanent right of residence in the UK if they:

 

• have lived in the UK in line with the 2016 regulations for a continuous period of 5 years

• have a retained right of residence at the end of the 5 year period

Home Office Caseworkers must make sure that the person:

 

• met the conditions of being the family member of an EEA national who is exercising free movement rights in the UK prior to retaining a right of residence

• met the conditions of regulation 10 at the time of their change in circumstances

• continued to meet the conditions of regulation 10(6) until the end of the 5 year period of residence

 

Home Office Guidance Free movement rights: retained rights of residence states that where the applicant has already been issued a document confirming they have a retained right of residence, they would only need to show that they continue to meet the conditions in regulation 10(6). This means showing they are a worker, self employed person or self-sufficient person and that they have resided in the UK for a continuous period of 5 years.

The Guidance states that it is not necessary for the applicant to show that, following divorce, the EEA national has continued to be a qualified person.

If the applicant has provided sufficient evidence, then the Home Office Caseworker must issue either a:

 

• document certifying permanent residence to EEA nationals

• permanent residence card to non-EEA nationals

 

Home Office caseworkers must refuse the application if the applicant:

 

• provides evidence of their own or the EEA national sponsor’s identity that is either:forged or counterfeit

• has not provided any proof that they are related to the EEA national sponsor

• does not provide enough evidence to show that they meet the conditions of regulation 15(1)(f)

 

Regulation 36 provides a right of appeal to persons claiming to be a family member who has retained the right of residence where certain documentary requirements have been met.

 

Revocation of an existing residence card and appeal rights:

 

A non EEA family member of an EEA national who has previously been issued with a document confirming their right of residence may not retain that right of residence in the UK.

 

Regulation 24(3) of the 2016 regulations states that a registration certificate or residence card can be revoked if the holder of the certificate or card has ceased to have, or never had, a right to reside under the regulations.

 

If an applicant is making an application under regulation 10 but they have previously been issued a registration certificate or residence card as the family member of an EEA national exercising free movement rights, Home Office caseworkers must revoke the existing document if they do not satisfy the:

 

• conditions of regulation 10

• the 2016 regulations in any other capacity

Where an applicant who has been issued a residence card because they satisfy the conditions of regulation 10, the Caseworker must revoke the document if they become aware that they have had a change in circumstances which means they no longer meet those conditions.

 

The Caseworker would revoke the document providing the applicant is not a qualified person in their own right and they do not qualify under any other part of the 2016 regulations. For example, an applicant who was issued a residence card as evidence of a retained right of residence may no longer meet the conditions of regulation 10 because they stop working.

 

Regulation 36(4) of the regulations provides for a right of appeal against the revocation of a document on the basis of a retained right of residence provided the documentary requirements are met.

 

ADDRESSING THE PROBLEMS: RELYING UPON HOME OFFICE GUIDANCE AND EEA REGULATIONS:

 

Retained rights and long Certificate of Application- providing a reasonable explanation:

In deciding whether a long Certificate of Application can be issued, Guidance Processes and procedures for EEA documentation applications currently acknowledges at page 30 that in cases of retained rights, there may be some circumstances where the applicant is unable to provide either the EEA national’s identity or evidence they were exercising free movement rights at the date of the termination. If the applicant provides a reasonable explanation for the missing information (for example because the applicant was the victim of domestic violence by the EEA national), then a ‘long’ COA can be issued.

 

Alternative evidence of identity and nationality- exceptional reasons  and circumstances beyond applicant’s control:

To benefit from certain provisions of the 2016 regulations, for example when applying for a document or seeking to appeal a decision, a person must present either a valid:

 

• national identity (ID) card issued by an EEA member state

• passport

 

Regulation 42 of the EEA Regulations provides:

“Alternative evidence of identity and nationality

This section has no associated Explanatory Memorandum42.—(1) Subject to paragraph (2), where a provision of these Regulations requires a person to hold or produce a valid national identity card issued by an EEA State or a valid passport, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

(2) This regulation does not apply to regulation 11”.

Regulation 42 entitles the Secretary of State to accept alternative evidence of identity and nationality where a person is unable to produce the required documents due to circumstances beyond their control. This regulation does not apply to anyone seeking admission to the UK under regulation 11, as this already contains a provision allowing an applicant to establish their right to enter by other means.

The Home Office Guidance on Processes and Procedures acknowledges that there may be exceptional reasons why a person cannot provide such documentation and a Home Office Caseworker can accept alternative evidence of identity and nationality if they cannot produce the required document due to circumstances beyond their control.

This may be, for example, if they have been granted asylum in the UK and there would be a potential risk to the applicant in seeking documentation from the authorities in their home country, or their asylum claim has failed but there is an ongoing appeal against that decision. In such cases, a Home Office issued application registration card (ARC) can be accepted as alternative evidence of identity and nationality. Where such alternative documentation is accepted, this can also be considered acceptable for the purposes of an applicant’s appeal rights.

There may also be other reasons why a person cannot produce a passport or ID card. Each case must be considered on its individual merits.

There are circumstances where alternative ID must not be accepted by Home Office Caseworkers. The following are not sufficient reasons for accepting alternative ID:

 

• where the applicant claims cost or inconvenience as a reason for not supplying valid ID

• if an ARC card is submitted but the asylum claim was refused and the applicant’s appeal rights are exhausted

Passports and identity documents must be originals. Policy Guidance states that copies of these documents should not be accepted, except, in the case of passports only, where they have been verified, copied and submitted to the Home Office by a local authority participating in the European Passport Return Service.

 

Difficult circumstances and further enquiries about EEA national’s status- Applicants who are unable to provide all the evidence of their EEA sponsor:

Home Office Guidance Free movement rights: retained rights of residence also acknowledges that an applicant may be unable to provide evidence of the EEA national sponsor to support their application for a document confirming they retain the right of residence in the UK due to difficult circumstances.

Where a relationship has broken down due to domestic violence or other difficult circumstances it may not always be possible for the applicant to provide all of the necessary documents about the EEA national sponsor. In such circumstances, Home Office Caseworkers can make further enquiries about the EEA national sponsor’s status but only where the applicant has shown they have made every effort to provide the necessary evidence.

Regulations 17,18 and 19 of the 2016 regulations put the responsibility on the applicant to provide the necessary proof that they are eligible for a document to confirm their right of residence in the UK.

Once again the Policy Guidance states, that cases where an applicant has previously been issued a document this only demonstrates that they had a right to reside under the regulations on the date it was issued. If they apply for a retained right of residence, the case worker must be satisfied that the applicant meets the relevant requirements relating to retained rights and request evidence where necessary,

The Guidance also states that cases 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 that are needed to support their application. An example of this could be where the applicant was the victim of domestic violence and cannot provide evidence relating to their EEA national sponsor’s nationality or free movement rights (to ask them to do so could put them at risk).

Another example would be where the applicant’s relationship has ended under difficult circumstances but they have provided evidence to show that they have made every effort to provide the required documents. Such as, attempting to make contact with the EEA national sponsor during divorce proceedings.

When dealing with these cases, Home Office caseworkers must take a pragmatic approach and:

 

• consider each case on its merits

• if they are satisfied the applicant cannot get the evidence themselves, make enquiries on their behalf where possible, getting agreement from their senior caseworker before doing so.

 

Where it is agreed that that the Home Office caseworker can make additional enquiries the applicant must give the caseworker as much detail as they can about the EEA national sponsor. If they cannot provide proof of the EEA national sponsor’s identity, nationality or proof of relationship, then the caseworker must check existing records to see if their identity has been established in any previous applications.   If they can give the name of the EEA national sponsor’s employer or place of study or existing records hold such details, the caseworker may contact the employer or educational establishment to enquire if the EEA national sponsor is working or studying there. The caseworker must decide whether to do so according to the facts of the individual case and with the agreement of their senior caseworker. The caseworker must not make reference to domestic violence to the employer or educational establishment where this is the reason for the enquiry.

 

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

 

Applicants may also 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 HMRC do not cover the full 5 year period, the caseworker must discuss the case with their senior caseworker. They will decide whether discretion should be applied based on the circumstances of the case. The senior caseworker must look at the amount of information provided by the applicant along with the level of evidence that has been gathered.

Reconsiderations:

 

Where residence documentation has been refused, an applicant can request a reconsideration of their application.

 

Reconsideration would be appropriate when:

 

• the applicant or representative raises a point of law – this could include accusations that the wrong regulation has been applied to the refusal

• the applicant or representative raises a challenge to Home Office policy – this could include where the wrong policy has been applied or the policy itself is alleged to be unlawful

• the applicant or representative has rightly drawn attention to the fact that evidence alleged not to have been provided in support of the application was actually with the Home Office at the relevant time

• new and compelling evidence was submitted before the refusal decision was dispatched that would, if it had been considered at the time, have led to documentation being issued If, after reconsideration, it is decided to maintain the refusal the relevant Home Office Caseworker must write to the applicant or representative explaining why this is justified and their options for challenging the decision.

 

Cases where reconsideration would not be appropriate Reconsideration would not be appropriate when:

 

• the applicant or representative requests a reconsideration without putting forward any substantive arguments

• the applicant or representative submits documentary evidence after the refusal decision has been issued

• the applicant or representative asks for reconsideration on a different basis than the original application (for example under Article 8 of the European Convention on Human Rights)

 

Generally, where the applicant has already lodged an appeal but they have asked for the decision to be reconsidered, this must be refused and the applicant advised to pursue their appeal through the proper channels. 

 

CONCLUSION

 

 

The 2016 EEA Regulations were brought into effect in February 2017 for a reason: to erode residence rights for EEA nationals and their non EEA family members as well as to plug any perceived gaps through which it was thought applications which should fail were “sailing” through successfully. In as much as there are some hindrances in the way of success of residence document applications, it is important to remember that there will always be legitimate ways, such as relying upon the Secretary of State’s own Home Office Guidance to push an application through to success.