Immigration Law & Conveyancing

EEA law- Retained rights of residence for non EEA family member in event of divorce, and source of self-sufficiency

Family sitting in living room smiling

Case of Kuldip Singh  Case C-218/14

Headnote

(i) Right of residence of family members of a Union citizen – marriage between a Union citizen and a third country national – retention of the right of residence of a third country national after the departure of the Union citizen from the host Member state, followed by divorce

(b) sufficient resources – taking into account the resources of the spouse who is a third country national

This case deals with two issues.

Marriage breakdown – Firstly, under the 2006 EEA Regulations, derived from Directive 2004/38, an EU national can become a ‘qualified person’ in the UK exercising their treaty rights through either working, seeking work, being self employed, self sufficient, or a student. Their family members rights derive entirely from their EU national family member.

In the case of spouses, where the marriage breaks down, it is still possible for the non EU family member, known as a ‘third country national’ to retain the right to reside in the UK. The marriage must have lasted for 3 years and the couple must have lived for a year in the UK.

Where the marriage breaks down and ends in divvorce, only if the EEA national first issues divorce proceedings and then either  leaves the country, stops working, or being self employed, does the ‘third country national’ retain the right of residence. If the divorce proceedings come AFTER one of these events, then they do not. Clearly this makes a huge difference to your case, if you are the’third country’ national.

If you seperate but do not get divorced, then as the ‘third country’ national you still have the right to reside in the UK, but you may well experience difficulties in proving to the Home Office that your EEA national spouse is still a ‘qualified person’ under the Regulations.

Self sufficiency – Where the EEA national wants to show they are residing in the UK lawfuly as a qualified person under the Regulations through being self sufficient,  they can rely on resources from their ‘third country’ national spouse. The court says that

the Directive must be interpreted as meaning that a Union citizen has sufficient resources for himself and his family members not to become a burden on the social assistance system of the host member state during his period of residence even where those resources derive in part from those of his spouse who is a third country national.’

It may well therefore be the case, as I have found with a couple whose case I dealt with recently, that an EEA national’s resources can derive in full from their third country national spouse also.

 

 

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