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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7617
Experience:  UK Lawyer holding practising certficate for England & Wales.
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I live in the UK . I have an EU passport and I married a guy

Resolved Question:

I live in the UK . I have an EU passport and I married a guy who is not an EU national. I just need to know in case there is a divorce in the future, when can it be applied for?
Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi,

Thanks for your question.

If your husband is in the UK as the non-EEA spouse of an EEA national then your divorce would result in him losing his status in the UK UNLESS he is able to apply for "Retained Rights of Residence".

Retained rights of residence is where the non-EEA spouse applies to continue his right to stay in the UK even though you are divorcing.

In order to be eligible, he would have to show that the marriage to you was was three years in length before the starting of the divorce process AND had either resided in the UK for one year of their marriage. You will see that this is confirmed on the following UKBA guidance page at 6.1:-
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/264944/chapter2.pdf

If this is the case then when you start the divorce process by having your divorce petition issued by the UKBA he can apply to the UKBA for his retention of treaty rights. This means that he will be able to stay in the UK on his EEA residence card until he reaches 5 years in the UK , which would then allow him to apply for Permanent residence.

If you have not been married for three years or not been together in the UK for one year then he cannot apply for retained rights of residence, which means that he would have to switch to another visa category not under EEA rules. If he could not do this then he would be asked to leave the UK and if he did not and the UKBA caught up with him then he would be deported.

Kind regards,


Tom
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