Under EU law, the rights of a non-EU spouse doesn't end with a separation or a divorce proceeding. Spouses are not even obliged to live under the same roof for the non-EU spouse to keep his/her residence rights in the host country. The only act capable of terminating your residence rights is when a Court issues a Divorce Absolute (not even a Divorce Nissi will do) to officially end the marriage. So you can choose to delay the divorce until the number years required for permanent residency.

However the above option have its limitations because in the UK there is a limit to the length of time a partner can delay a divorce. With the fast-track divorce procedure introduced by the government the average period for a divorce to go through is about a year. This is the most you can get.


The second option which gives you better and stronger rights is referred to as Baumbast Rights. Following the European Court of Justice case of Baumbast, a non-EEA spouse of an EEA worker continues to have right of residence in the UK if:

they have divorced the EEA national or the EEA national leaves the UK,

provided that they have a child who is under 19 who is attending an educational course in the UK and the non-EU spouse is the principal carer of that child.

If divorce takes place following the departure of the EEA national from the UK, the same principal will apply. Your child must have commenced education prior to the divorce or departure of the EEA national (I believe your 7yr old qualifies you on this point).

The reasoning behind Baumbast is that a child may be prevented from exercising its EU treaty rights to attend education if their primary carer was not allowed to remain in the Member State.The UK government lost on this grounds and Baumbast has since become EU Law protecting enstranged non-EU resident spouses (especially women).

If your husband refuses to support your renewal application, don't bother. Forward your application with a letter to the Home Office requesting to renew your Permit on the grounds of the Baumbast ruling by the ECJ. Enclose the necessary evidence as regards your children's schooling etc.

EU Law is more protective of non-EU/non-State spouses as compared to State Immigration rules.

You needn't worry. Good luck!