EEA family member rights to stay after divorce

If anyone can advice me on my situation I will greatly appreciate it:

My partner and I were married in the UK - November 2007.
I then obtained the EEA family permit valid till March 2013.

Unfortunately we have gotten divorced, the final decree being issued in March of this year. I returned home to SA in November last year for a holiday and was then told by a immigration lawyer that I have no rights to return to the UK.

This was a shock but I tried to make a life here but I still miss the UK and really wasnt prepared not to live there anymore. Subsequently one of my british clients advised me that I do have a right to live in the UK as I was married for 3 years!

Can anybody advise me please as I desperately wish to return to my life.

My partner is a Greek citizen still living and working in the UK.

I believe the client was referring to retention of the right of residence.

See 5.4.2 here:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


5.4.2 Retention of a right of residence following divorce or annulment of
marriage / dissolution of civil partnership

Regulation 10 (5) of the 2006 Regulations makes provision for the following:

If the marriage or civil partnership has lasted for at least three years immediately before
the initiation of proceedings for divorce, annulment or dissolution, and the parties to the
marriage or civil partnership had resided in the United Kingdom for at least one year
during the duration of the marriage or civil partnership, then the third country national
retains a right of residence if:

(a) they are pursuing activity which would make them a worker or a self-employed
person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the United Kingdom who is either a
worker, self-employed, or is a self-sufficient person.

If the non-EEA national is a student then they will not qualify, unless they are a student
with sufficient resources to be self-sufficient.

Thus, if you and your partner met the above conditions you may have qualified for the retention of the right of residence.

( You would need to prove it and that will probably be difficult to do if you are in SA.)


In the case of an EEA national and they are out of the UK for more than 6 months in a year their residence clock is set back to zero, as they are no longer considered a UK resident, but they are allowed to re-enter and start again.

I am not sure if this would apply to you or if your right of residence would be lost altogether after 6 months absence from the UK.

Hopefully, someone can advise?

nonspecifics wrote:I believe the client was referring to retention of the right of residence.

See 5.4.2 here:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


5.4.2 Retention of a right of residence following divorce or annulment of
marriage / dissolution of civil partnership

Regulation 10 (5) of the 2006 Regulations makes provision for the following:

If the marriage or civil partnership has lasted for at least three years immediately before
the initiation of proceedings for divorce, annulment or dissolution, and the parties to the
marriage or civil partnership had resided in the United Kingdom for at least one year
during the duration of the marriage or civil partnership, then the third country national
retains a right of residence if:

(a) they are pursuing activity which would make them a worker or a self-employed
person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the United Kingdom who is either a
worker, self-employed, or is a self-sufficient person.

If the non-EEA national is a student then they will not qualify, unless they are a student
with sufficient resources to be self-sufficient.

Thus, if you and your partner met the above conditions you may have qualified for the retention of the right of residence.

( You would need to prove it and that will probably be difficult to do if you are in SA.)


In the case of an EEA national and they are out of the UK for more than 6 months in a year their residence clock is set back to zero, as they are no longer considered a UK resident, but they are allowed to re-enter and start again.

I am not sure if this would apply to you or if your right of residence would be lost altogether after 6 months absence from the UK.

Hopefully, someone can advise?

Thank you so much for your reply...even though Im a bit disheartened about the 6 month implication....
Hopefully someone can confirm this.

Hi, I successfully RoR, I was away in europe for about 8 months for Work, but was paid in UK and used a UK Umbrella Company, hence I was able to prove that I was working in the UK (exercising treaty rights) whilst physically away.
You would need a very good reason and proof of your absence from the UK for > 6 months( in any one year). As far as the law goes if you do not have a very good reason for staying away then I reckon things might be tight for you.

Gill Apple wrote:

nonspecifics wrote:I believe the client was referring to retention of the right of residence.

See 5.4.2 here:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


5.4.2 Retention of a right of residence following divorce or annulment of
marriage / dissolution of civil partnership

Regulation 10 (5) of the 2006 Regulations makes provision for the following:

If the marriage or civil partnership has lasted for at least three years immediately before
the initiation of proceedings for divorce, annulment or dissolution, and the parties to the
marriage or civil partnership had resided in the United Kingdom for at least one year
during the duration of the marriage or civil partnership, then the third country national
retains a right of residence if:

(a) they are pursuing activity which would make them a worker or a self-employed
person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the United Kingdom who is either a
worker, self-employed, or is a self-sufficient person.

If the non-EEA national is a student then they will not qualify, unless they are a student
with sufficient resources to be self-sufficient.

Thus, if you and your partner met the above conditions you may have qualified for the retention of the right of residence.

( You would need to prove it and that will probably be difficult to do if you are in SA.)


In the case of an EEA national and they are out of the UK for more than 6 months in a year their residence clock is set back to zero, as they are no longer considered a UK resident, but they are allowed to re-enter and start again.

I am not sure if this would apply to you or if your right of residence would be lost altogether after 6 months absence from the UK.

Hopefully, someone can advise?

Thank you so much for your reply...even though Im a bit disheartened about the 6 month implication....
Hopefully someone can confirm this.

bobobo wrote:Hi, I successfully RoR, I was away in europe for about 8 months for Work, but was paid in UK and used a UK Umbrella Company, hence I was able to prove that I was working in the UK (exercising treaty rights) whilst physically away.
You would need a very good reason and proof of your absence from the UK for > 6 months( in any one year). As far as the law goes if you do not have a very good reason for staying away then I reckon things might be tight for you.

Thank you for your reply - do you think the fact that I stayed away longer than 6 months to complete a tattoo apprenticeship and taking care of someone with terminal cancer counts?

it sounds a bit pathetic but those are the honest reasons besides from the fact that I was given incorrect information originally regarding my visa.

certain issues arise

1) possible lawsuit vs the lawyer who advised you negligently (if you can prove this); little consolation even if you get a substantial amount (far-fetched depending on the country of dispute resolution), if you then lost your right of residence because of an incompetent moron;

2) possible reliance on the provision which says that continuity of residence is not broken by absences which do not exceed 12 months and it was for vocational training for your future job.
Regulation 3(2)(c) of 2006 Regs may apply

http://www.legislation.gov.uk/uksi/2006 ... ion/3/made

3) practical question of you physically returning to the UK. Upon entry (even though your Residence Card is still valid) you will be asked questions about who your family member is, where they are and how long you've been away. Unless you prepare your answers, they may start to dig and you have to show you know the law and stand your ground!

Obtain proof of vocational training etc, dates of your absence, etc. The illness of someone else is not referred to in the Regulations I provided above, only your illness. Anyway, my initial observation is you have a good chance to return and continue your life in the UK! I would get on with it ASAP if I were you. Good luck mate.

Gill Apple wrote:

bobobo wrote:Hi, I successfully RoR, I was away in europe for about 8 months for Work, but was paid in UK and used a UK Umbrella Company, hence I was able to prove that I was working in the UK (exercising treaty rights) whilst physically away.
You would need a very good reason and proof of your absence from the UK for > 6 months( in any one year). As far as the law goes if you do not have a very good reason for staying away then I reckon things might be tight for you.

Thank you for your reply - do you think the fact that I stayed away longer than 6 months to complete a tattoo apprenticeship and taking care of someone with terminal cancer counts?

it sounds a bit pathetic but those are the honest reasons besides from the fact that I was given incorrect information originally regarding my visa.

As suggested, you could chance your luck and try and re-enter the UK on your residence card.

However, if you are stopped and questioned, the ECO may state the residence card is NOT valid, even though the expiry date has not passed.

You were given the residence card because you were a family member of an EEA national, but are no longer a family member, so the rights it confirmed ended when your divorce was completed, unless you retained the right of residence.

That is why you should establish if you have retained the right of residence.

Was your ex-spouse exercising Treaty Rights when the divorce was completed?

Can you prove that?

You should then have been exercising Treaty Rights from then on. Obviously you did not do that if you weren't in the UK.

I could see UKBA arguing you never exercised Treaty Rights in the UK, so have no right to return to the UK.

It seems your argument would be that your wife sponsored you until the Decree Absolute was granted. You left the UK for vocational training, so that you are better qualified to gain employment and exercise Treaty Rights as a worker.

It would be interesting to hear if UKBA accept you did not end your residence because you were undergoing vocational training.

nonspecifics wrote:As suggested, you could chance your luck and try and re-enter the UK on your residence card.

However, if you are stopped and questioned, the ECO may state the residence card is NOT valid, even though the expiry date has not passed.

You were given the residence card because you were a family member of an EEA national, but are no longer a family member, so the rights it confirmed ended when your divorce was completed, unless you retained the right of residence.

That is why you should establish if you have retained the right of residence.

Was your ex-spouse exercising Treaty Rights when the divorce was completed?

Can you prove that?

You should then have been exercising Treaty Rights from then on. Obviously you did not do that if you weren't in the UK.

I could see UKBA arguing you never exercised Treaty Rights in the UK, so have no right to return to the UK.

It seems your argument would be that your wife sponsored you until the Decree Absolute was granted. You left the UK for vocational training, so that you are better qualified to gain employment and exercise Treaty Rights as a worker.

It would be interesting to hear if UKBA accept you did not end your residence because you were undergoing vocational training.

Thank you for everyones advice

Based on the input I receive, I'm assuming that it would be a 50/50 chance that the border control lets me in - and does that mean I would be deported if they did not allow me in? I dont want that against my name.

Secondly when I apply for right of residence at the home office they may deny me and I would have to leave?

In everyones opinion would me be returning now be a mad thing to do?

I believe you would have an in-country right of appeal, so they would have to let you in till the appeal is heard.

UKBA and the ECO probably wouldn't tell you that though and might instead ask you to sign a waiver that you are agreeing your residence card is no longer valid, so you voluntarily surrender it and then they can deport you immediately. ( From what I have read on here).


At least an in-country appeal would give you a chance to fight the case, if you think you can prove you retained the right of residence and could successfully prove that your trip to SA was not breaking your continuity of residence, because it was for one or more of the important reasons in the Regulations.

nonspecifics wrote:I believe you would have an in-country right of appeal, so they would have to let you in till the appeal is heard.

UKBA and the ECO probably wouldn't tell you that though and might instead ask you to sign a waiver that you are agreeing your residence card is no longer valid, so you voluntarily surrender it and then they can deport you immediately. ( From what I have read on here).


At least an in-country appeal would give you a chance to fight the case, if you think you can prove you retained the right of residence and could successfully prove that your trip to SA was not breaking your continuity of residence, because it was for one or more of the important reasons in the Regulations.

Thank you for your excellent advice. I appreciate all the effort everyone has given to my query.

I have spoken to the person that I served an apprenticeship with and she has agreed to give me a letter headed confirmation from her company verify the time I spent learning reconstructive tattooing for breast cancer patients - I hope that even though it is not a certificate from an educational institution that it will be sufficient proof under the regulation which states I can be out of the country for up to 12 months for vocational training.

From everyones knowledge would this be sufficient?

I am at the final stage and want to fly out in the next two weeks.