OA (EEA – Retained Right of Residence) Nigeria: AIT 17 Feb 2010

AIT Reg 10 of the Immigration (European Economic Area) Regulations 2006 is a free-standing provision which enables a family member who would otherwise cease to have a right of residence to continue to do so in certain circumstances. So far as concerns persons who fall within reg 10(5), so long as their marriage or civil partnership is at least three years old it is possible for them to qualify for a retained right of residence after just one year of residence in the United Kingdom. But to achieve a permanent right of residence on the strength of a retained right of residence it is always necessary to show residence in the UK for a continuous period of five years.
Under reg 10(5)(a) the phrase ‘termination of the marriage’ can only mean the lawful ending of the marriage by legal proceedings (i.e. divorce); it cannot mean ‘breakdown of the marriage’; see also WW (EEA Regs. – civil partnership) Thailand [2009] UKAIT 00014.
To count as a qualifying period of residence under reg 15(1)(b) a person must show, inter alia, that the five years in question are ones in which the said residence has been ‘in accordance with these Regulations’. That entails that during those five years the EEA national on whom the family member relies in order to establish his or her right must have been continuously in the UK exercising Treaty rights (save for certain periods of absence specified in reg 3).
For the purposes of reg 15(1)(b) the period of time during which a person ‘has resided in the United Kingdom with the EEA national . . ‘ must commence from the date the person first became a family member, that being the date of marriage in the case of a spouse.
Reg 15(1)(f) provides a route for acquiring a permanent right of residence based on a retained right of residence. But, as under reg 15(1)(b), so under reg 15(1)(f) the family member has to show that the EEA national concerned was exercising Treaty rights continuously over the relevant period of five years.

[2010] UKAIT 00003
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.401637