Nationals of the European Economic Area (EEA) Member States (European Union plus Iceland, Norway, Lichtenstein and Switzerland) benefit from free movement rights. This means they can travel to another Member State freely. They can migrate and undertake economic activity. In order to facilitate this right they are allowed to bring their family members with them, even if their family members are not themselves citizens of a European Union (EU) state. Their rights are not therefore free-standing but strictly dependent on the status of the EEA national. In practice this means that when the EEA national stops exercising their free movement rights by, for example, returning to their home country, the EEA national’s family members lose their right to reside in the UK automatically.

Because the family member’s rights are derived from their relationship to an EEA national, the same should happen when the relationship breaks down. However, there are circumstances where despite the relationship breakdown, family members can nevertheless remain in the UK. In legal terms they “retain their right of residence”.

Such a situation was recently the subject of the Asylum and Immigration Tribunal decision in OA (EEA – retained right of residence) Nigeria [2010] UKAIT 00003. The Tribunal reiterated the principles governing this area of law:

• In order to acquire a retained right of residence, you must meet the following requirements:
  • Your marriage or civil partnership has been terminated; and
  • At the date of termination your spouse or civil partner (EEA national) was exercising his/her rights under EU law; and
  • You are employed, self-employed or self sufficient (or you are a family member of such a person); and
    • You were married or in a civil partnership for at least 3 years before you started your divorce proceedings; and you were living with your spouse or civil partner in the UK for at least one year or
    • you have custody of your child or a right of access to your child which must be exercised in the UK according to a court order or
    • there are other compassionate grounds such as domestic violence.
• Under Community law a marriage or civil partnership is considered terminated when a decision has been made by a competent authority and this decision is final (Diatta v Land Berlin case decided by the European Court of Justice). In the UK it will be upon the issue of a decree absolute. Until the decree absolute is issued, even after the decree nisi, the marriage or civil partnership is existing for the purposes of EEA applications. The fact that parties no longer reside together or communicate with each other is not relevant. It follows that until your decree absolute is issued, you remain a family member of the EEA national.
• Immediately after your decree absolute is issued and you meet the above requirements you acquire the right to reside in the UK.
• If you have been residing in the UK for a continuous period of 5 years, under the EEA Regulations you acquire permanent residence rights. You can then make an application to the Home Office for a permanent residence card.

The Asylum and Immigration Tribunal has left open one issue that may cause significant problems in practice. The issue is one of meeting the evidential requirements.

For example: a 3^rd country national resides in the UK with his spouse or civil partner who is an EEA national for 4 years, say from January 2005. The divorce proceedings start in February 2009 but will not be completed until August 2010. Until the decree absolute is issued, the 3^rd county national remains a family member of an EEA national with a right to reside in the UK, as will likely be confirmed by his residence card. After 5 years of continuous residence in the UK he applies for a permanent residence card, say in January 2010. In January 2010 he is still married to an EEA national, so cannot claim the retained right of residence. He applies as a family member of an EEA national, but because the parties are not on amicable terms, he is not able to provide evidence that the EEA spouse has been exercising free movement rights (e.g. pay slips) and most importantly is unable to provide the EEA spouse’s passport.

If he makes his application for a permanent residence card after the decree absolute, as a person who has retained the right of residence, the evidential difficulties do not disappear. He is still required to provide evidence that his spouse was exercising treaty rights (economically active or self-sufficient) on the day of termination of the marriage (the day of the decree absolute). The Tribunal has not yet recognised that when a marriage breaks down, it is unlikely that the parties want to cooperate with each other and share documents.

It remains to be seen whether the issue will reach a higher court, or indeed be reconsidered by the AIT so that the evidential requirements issue is resolved. Otherwise, the main purpose of this regulation which was to safeguard family life and human dignity is likely to be more painful than was intended (see “the Citizens Directive” 2004/38EC, preamble point 15).