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Click here for you Practical Guide on helping a 'Protected' EEA National claim UC if they have a family member living in the UK that they can 'piggyback' on.

 

 

 

 

For our eyes only
What happens when couples separate?

The spouse / civil partner / 'duly attested' partner of an EEA National loses their rights as a 'family member' or 'extended family member' if:

  • They get divorced from their spouse / civil partnership dissolved (ie they retain these rights whilst separated from their spouse / civil partner but not yet divorced/dissolved),  or
  • They separate from an unmarried / not in a civil relationship partner (ie they lose these rights as soon as they separate).
 But there are exceptions:

Special rules where family member divorced / dissolved / separated from an EEA National

In the following situations a 'family member' of an EEA National may retain their right to claim Universal Credit so long as they had been married or in a civil partnership (ie it does not apply to separated partners), and are an EEA national themselves or would* be someone who would qualify for UC as an EEA national if they had been an EEA national (eg working / retained worker status / meet the rules for permanent residence) and either:
 
  • Their continued residence in the UK is warranted by particularly difficult circumstances such as domestic violence, (could be to a child or other family member as well as to themselves) and the EEA National has the right to claim Universal Credit eg working / retained worker status / permanent residence, or
  • A divorced couple (including civil partners) had been married/ in a civil partnership at least 3 years and had been in the UK with the right to claim Universal Credit for at least a year eg working / retained worker status / permanent residence,  or
  •  They have access to a child who is under 18, who is living with their ex-spouse / ex-civil partner who is an EEA national with the right to claim Universal Credit (eg working / retained worker status / permanent residence) and a court order has stipulated the access must be in the UK, or
  • They have custody of a child who is under 18, and their ex-spouse / ex-civil partner who is an EEA National with the right to claim Universal Credit (eg working / retained worker status / permanent residence) has access to that child and a court order has stipulated the access must be in the UK.

*The regulations only refer to non EEA nationals - but the Gov.uk guidance on this issue does refer to EEA national family members in terms of evidence:
"The applicant must provide:
• a valid EEA national identity (ID) card or passport issued by an EEA state if they are an EEA national or their valid passport if they are a non EEA national"

** Caselaw (Gauswami) has ruled that a jobseeker can count as a "worker" for these purposes and so be someone who "would qualify for UC if they were an EEA national".

In these cases the partner should be advised to seek advice as there is caselaw that may help them claim Universal Credit, And note that Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 confirms that where a non-EEA citizen spouse is divorced from their EEA citizen partner, any safeguards should be considered from the situation at the time the marriage actually broke down, rather than waiting until the divorce has gone through.

Gov.uk guidance on retained right of residence here.

What if they don't fit the criteria above but the split is due to domestic violence?

Click here.




In certain limited cases someone who has been 'piggybacking' as a 'family member' on an EEA National as their spouse or civil partner they will retain the 'Right to Reside' even if they divorce / dissolve.

Firstly they must be either:
Their ex-spouse/ex-civil partner must have a Right to Reside as a worker (including with
retained worker status) or as self sufficient with comprehensive medical insurance OR
• If they are not an EEA national themselves then they must be someone who, were they an
EEA national, would qualify as having a Right to Reside as a worker (including with retained
worker status) or as self sufficient with comprehensive medical insurance.)
*This is Regulation 10(6) of the Immigration (EEA) regs as retained in the new ‘protection’
regulations.
The regulations do not specify that the family member has to be their former spouse or civil partner.
There are 4 circumstances that allow them to retain their Right to Reside.
1. They must have been been married to, or in a civil partnership with, the EEA national for at least 3
years immediately before the proceedings to initiate the divorce/dissolution began AND
They must have lived in the UK with the EEA national for at least one year while married / in the civil
partnership
OR
2.They must have custody of the child of the EEA national former spouse or civil partner.
OR
3.They must have the right of access, ordered by a court, to a child under age 18 of the EEA national
former spouse or civil partner.
OR
4.Their continued right of residence in the UK must be “warranted by particularly difficult
circumstances.”
This can include, but is not limited to, when they or another family member has been a victim of
domestic violence during the marriage/civil partnership.

They will need to provide evidence of:
Their ID and nationality
The ID and nationality of the EEA national they were married to/ in a civil partnership with
That the EEA national had a Right to Reside when the proceedings to divorce/dissolve began
Confirmation of the initiation of proceedings for the termination of the marriage/civil partnership
Living in the UK when the proceedings to divorce/dissolve began
That they are (or would be, if they aren’t an EEA national) a worker (including retained worker
status) or self sufficient with comprehensive medical insurance, or are the family member of
someone with one of these statuses.

Plus they need to provide evidence of the situation in whichever of the 4 categories above they
come under.
In the fourth case, if they have used every effort to obtain evidence but failed, they can ask the DWP
to make enquiries eg through the CIS system. They must take account of any difficulties particularly
where there is domestic violence and use their discretion. If they are refused they should appeal, in
which case the Tribunal Judge can order a direction to any party in the proceedings (including the
DWP) to obtain evidence. If no evidence can be provided the Tribunal will decide on the balance or
probabilities..





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Ooops – not logged in?
 
Looks like you need to log in.
(If you’ve forgotten your login please email us at info@housingsystems.co.uk)



 
Just visiting?
 
If you’d like to see the information on this page, and discover all the other useful tools we offer, you’ll need to be registered member.

If you’d like a free, no obligation 2 week trial just email us - info@housingsystems.co.uk.

Find out more about the trial and services we offer here.

We’d love to hear from you.

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