New EEA forms effect on RoR

[djchoclate]

I am seeking help on behalf of my friend:
My friend details first:
non eu national
Came to UK in July 2009 on study visa
Got married to EU national may 2011
Issued with EEA2 residency card expiring in 2016
Separation started: sep 2013
Reason for separation:wife cheated on him then later got pregnant with the man she cheated and has baby and living with him.
My ex wife details:
Came to UK June 2008 EU national
Worked full time from June 2008 til June 2013 which made her eligible to apply for her permanent residence but she has not yet.
Now studying on UK student loan.

My question is about can he apply for my retain right of residence??
I have to discuss one more thing with you that during their 3 years and 4 month marriage they were separated for 1 year 2month as she cheated and got pregnant.
So will this separation be counted in my 3years 4 months marriage??? As law says you need to be married for 3years to apply for retain right of residence?
Now the form is very big and ask too many questions like about children with your wife or your wife children with someone else and other question etc. so my friend went to a solicitor and explain the whole situation and he said you can't apply for retain right of residence as your marriage has not lasted for three years coz you actually broken down your marriage when you wife cheated on you and then you both stop living together..
Please advice.
Thanks.

[Annebee]

Just tell me You are kidding.. Did you say that advise came from a solicitor? It's such a shame looking at the amount of cowboy solicitors out there. skimming people that knows very little about their rights.

Ok back to facts...

Your friends needs to read though , to understand options available to him . I hate when people make to effort and just love to be spoon fed.

To qualify for ROR , in the case of your friends marriage.

Marriage should have lasted for at least 3 years before commencement of divorce . And during those periods of divorce, couple should have lived together in UK for Atleast one year. Also your friend should be able of show that ex wife was exercising treaty rights throughout the period of divorce. And that himself is working from the time divorce became finalised.

[djchoclate]

This lawyer is very famous he comes on tv every week as well because of his knowledge and experience he was once asked by sky tv to come in their show and talk on immigration. He is on Wikipedia as well and he has offices in UK and in different country as well.
The reason why he was saying such thing to my friend is:
Why didn't my friend not start the divorce process when he found out about his wife adultery? Why it took him too long to start the divorce the process coz in adultery people usually take decision very quickly?
And th reason he said why am I saying such things only because of new 137 pages form coz in old form UKBA would not never known about your separation and not even known about your wife has kid from another man and during that period you did not start the divorce and started living separately.
And the lawyer even said to my friend I ll not take your case coz for sure you ll get rejection and ll waste your money.
Nowadays u hardly find such lawyer who refuse to take your case specially when you are specially a immigration lawyer.

Ok. Now I ask you what would be the reasons UKBA made such a big form?
What are the reason they asking questions about your divorce reasons, about kids you had together in your relationship or both partners had outside their marriage??
According to your provided answer, why would my friend need to show my wife working during divorce period when she already is qualified for permanent residence?

[Annebee]

Irrespective of how high u rate this "cowboy lawyer" . It's doesn't change the fact he is clueless unless you are the one not providing the correct information here.

You and your friend needs to search through this forum where you will find answers to your questions.


As per your lawyer, is he talking about the difficulties your friend will encounter during divorce based on the grounds of not filing for divorce close to the time the adultery was commited or is he referring to the fact that your friend will not qualify for ROR for that reason and for reasons that the ex wife cheated and had child for someone else? Or that they lived in separate addresses at some point in the marriage? ..

Here are the questions you need to answer should you wish it have further advise to your questions rather than beating around what ur lawyer thinks.

1. Is this your friend divorced from the ex wife. I do not mean separation . I mean final decree issued to dissolve marriage?
Or is that yet to happen
2. How long was ur friend married for before divorce petition was filed in court (if already done )
3. Within those period of marriage , how long did they both live together in UK (if divorce had commenced or already happened)
4. If divorce has happened, From the start of divorce to the point of dissolution , was the ex wife working?
5. During The period of divorce, was the ex wife living in the UK?
6. If the divorce has happened, Is your friend working now?

No 4 does not apply if the ex wife has already been issued with a permanent residence card. Note if eea has continuously worked for 5 years or above but didn't apply for PR , no 4 will still apply.

don't worry about the reasons behind questions on the new form . What matters is if your friend is qualified for ROR.
Ex wife moving in with another man or cheating or having child for someone else is not the point. If HO have reasons for further clarification , they will invite the person for an interview.

[djchoclate]

No.. They have not started the divorce yet but my friend will start within weeks times he just looking for a lawyer who can do divorce in cheap.
So far, they have lived together for 2years and 4 months and still living in different houses and in different cities.
Right now my friend in full time employment and her wife is studying full time at the moment and she also got comprehensive health insurance for herself.

[Obie]

I have come to the conclusion that some of these lawyers are good and have good intention, but there is an ongoing problems with most lawyers, when it comes to EU law.

The Television lawyer, might have had good intentions, and i do not wish to deprive him of that compliment, but going by the law and case law, one can say with relative ease, that he was wrong, and not all lawyers are vast with EU law.

The Government is changing the law everyday to the extent that, some lawyers have no time to read EU law, once they have finished reading the ever changing Immigration rules.

The rules are being tightened, and there are greater scrutiny, but the law remain unchanged.

[djchoclate]

So what is your opinion Obie??? Should my friend be fine? And his wife ll provide him all the documents and at the moment she is in education with comprehensive health insurance for herself only. And rest situation you can read in my previous replies

[Obie]

Well if this is the same friend, I believe I gave you advise in regards to him, and if my memory serves me right, i believed i have advised him also. Those advise remains valid, and i am not sure there is much more i could add to it.

I can understand him seeking a second opinion, but that opinion is not the law. It is certainly up to him, if he chooses to go with the Television lawyer or the opinion i had given to you and him.

[djchoclate]

No.. He is a different guy.. The one you advised he is doing divorce himself and for RoR he ll definitely come to you.

[Obie]

No.. He is a different guy.. The one you advised he is doing divorce himself and for RoR he ll definitely come to you.

Apologies, just that the facts of the cases seems a bit similar.

[djchoclate]

It's ok

[rosebead]

I do think it's poor show though for an immigration lawyer to think that domestic rules will resemble EU rules. Any immigration lawyer worth his/her salt would surely be able to guess that free movement laws are going to be more liberal than domestic laws, even without checking up on the rules. Considering that there are an estimated 2.5 million EU migrants in the UK, I would say that EU immigration law is an important area and a diligent lawyer should be keeping up to date, especially as there is less of an impediment to do so since free movement laws do not change as much as domestic immigration rules.

@djchocolate: unlike domestic rules, under EU rules a marriage does not have to be subsisting, which is what the lawyer got wrong. In fact a non-EEA national has a right of residence up until the very moment of his divorce, even if he is separated from his wife, as long as she is still exercising Treaty rights in the UK. He will continue to retain a right of residence after a divorce if he fulfils certain criteria which has already been discussed in this thread. The only issue I can think of is that sometimes the Home Office are a bit suspicious of divorces that occur near the 3-year mark, as they think it could possibly indicate sham marriage.