Non-EEA wife to EEA -fastest to ILR/PR -protect from divorce

[resol07]

A citizen of a populous African country became an overstayer in 2005 while a visitor in the UK. In August 2005, she met a citizen of one of the newly added EU members (Czech Republic, Estonia, Hungary, Latvia Lithuania, Poland, Slovakia and Slovenia) who arrived in the UK in August 2005. He has been working in the UK since October 2005, thus exercising his treaty rights ever since and is in permanent employment. He was also properly registered on the WRS (Worker Registration Scheme). In December 2005, their cohabitation began. In September 2006, they married in the UK in a Church of England ceremony. In October 2006, they applied for a Registration Certificate (EEA1) for him and a Residence Card (EEA2) for her. This went successfully (despite her previous overstaying) and her card arrived in February 2007. So now she is all and well.

However, she is now worried that her husband might make a move to divorce. She wants to ensure that she is taking every step she can in the most efficient (=fastest) way so that in case one day he does divorce her, this will not threaten her ability to stay in the UK permanently.

My understanding is that her current Residence Card, which is valid for 5 years entitles her to stay and if the marriage lasts for at least 3 years, her right to stay will be unaffected even by a divorce. However, there could be other (faster?) options I am not familiar with - even if she has to travel back to her country to make furher applications at a Consulate, that's okay - as long as it gets her to a "does not need to worry about divorce" situation.

I have heard of ability to switch to a different visa (under UK law instead of EU)? I am not sure what to suggest here, as I have never helped anybody with UK law applications, only EEA1/2 so this is beyond my amateur knowledge. Perhaps she could apply for ILR somehow under UK law after two years of being a non-EEA spouse of this EEA national? Or some other way...?

Any ideas/advice?

[Rozen]

I doubt that she can switch from EU route to UK route in-country. If she wants to get ILR in two years, rather than PR in five years, then I think she would have to go back to her home country and apply for a spouse visa under UK immigration rules.

I'm sure others will come along and have their say...

[resol07]

Travel to her home country to do whatever is needed is not a problem. The key here is to find the method that will get her to "safe from divorce" situation in the shortest time possible.

[Wanderer]

Travel to her home country to do whatever is needed is not a problem. The key here is to find the method that will get her to "safe from divorce" situation in the shortest time possible.

Work permit or HSMP?

[resol07]

As stated in my original post, she has a Residence Card (EEA2) - that means she can travel in and out of the UK as she pleases (which she already did successfully 3 times).

The question here is that while she's on her Residence Card as a non-EEA spouse of an EEA national exercising treaty rights in the UK, as of today, if he divorces her, she loses the ability to stay. She wants to secure the ability to stay even if he divorces her in as little time as possible. Some suspicions of infidelity were raised, that's why it's an issue. HSMP or work-based status in the UK won't be doable because she doesn't have any credentials beyond a general high school diploma.

[Wanderer]

As stated in my original post, she has a Residence Card (EEA2) - that means she can travel in and out of the UK as she pleases (which she already did successfully 3 times).

The question here is that while she's on her Residence Card as a non-EEA spouse of an EEA national exercising treaty rights in the UK, as of today, if he divorces her, she loses the ability to stay. She wants to secure the ability to stay even if he divorces her in as little time as possible. Some suspicions of infidelity were raised, that's why it's an issue. HSMP or work-based status in the UK won't be doable because she doesn't have any credentials beyond a general high school diploma.

Sometimes there isn't an answer. If she doesn't qualify under her own merits to stay in the UK she doesn't qualify, simple as.

Plus the overstay may well catch up with her in the end, they overlooked it once, they won't again. I think the only solutions are:

1. Stay married long enough to qualify under residency

2. Skill based which you've ruled out

3. Hang on and hope the 14 yr legal/illegal stay rule is still in force in 12 yrs time.

4. Somehow return home and after divorce enter a new relationship with a UK national, but even this daft solution holds no promises, since overstaying is Public Sin Number One at the moment.

[thsths]

The question here is that while she's on her Residence Card as a non-EEA spouse of an EEA national exercising treaty rights in the UK, as of today, if he divorces her, she loses the ability to stay. She wants to secure the ability to stay even if he divorces her in as little time as possible. Some suspicions of infidelity were raised, that's why it's an issue.

This is a tricky situation. First of all, the rule is that you have to be married for at least 3 years to retain your right of residence after a divorce. You will find this in the Directive 2004/38, in the 2006 Immigration Regulations (EEA) and in the European casework procedures.

If she is lucky, she may get the time of cohabitation included into these three years, but that is not certain. Still she would need to be married for at least another year. Now in the UK, a divorce in the UK is only possible after 2 years if both parties agree with the divorce, or 5 years if one party disagrees. A faster divorce is only possible based on compromising evidence. You may want to ask a divorce lawyer for a detailed analysis of the case.

I agree that the national immigration path is pretty much out of the question after her overstaying, unless she has a very strong case.

[resol07]

Plus the overstay may well catch up with her in the end, they overlooked it once, they won't again.

I don't think they overlooked it. I know that HO called the couple to Croydon for an interview prior to granting her a Residence Card where they grilled them to find out if it was a Marriage of Convenience and the overstay did come up. However, they were not able to reject her because the application was under EU law and 1) the marriage in the UK was legal despite overstay (Church of England) and 2) HO couldn't prove a marriage of convenience.

1. Stay married long enough to qualify under residency

My understanding is that if she stays married for at least 3 years, then if they divorce even prior to her completing 5 years on her Residence Card, she will still be able to retain it, so long as she can prove economic self-sufficiency.

3. Hang on and hope the 14 yr legal/illegal stay rule is still in force in 12 yrs time.

I am confused what you mean here. Her current status is not an overstayer. Her husband, an EEA national is exercising treaty rights in the UK and she is his non-EEA national wife.

According to European Casework Instructions, Chapter 8 Enforcement Action Taken Against EEA Nationals and Family Members, Section 1 Illegal Entrants, subsection 2.3 Applications made by illegal entrants:

"European Casework must notify the immigration officer(s) of the outcome of an illegal entrant’s application, particularly if a residence card has been issued as enforcement action cannot be pursued and reporting restrictions will have to be cancelled."

Do you think that the fact that in the past she was an overstayer can work against her when trying to keep her Residence Card valid after marriage lasts for at least 3 years? What would be the basis on which the past overstay would contribute to a potential rejection?

I have suggested to her that they should look into making the application under British law for spousal visa or something but they refused it saying it's easier under EU law and no fee is needed. Now, after one year of their marriage, I am not sure if it would make sense to pursue anything further, as there are 2 years left until the time when even in case of divorce, she would get to keep her residence right.

Then the big question is, if he does divorce her after 3 years of marriage but before 5 years elapse, would she upon completion of 5 years still be eligible for permanent residence under EU law even if divorced?

[JA13I]

Then the big question is, if he does divorce her after 3 years of marriage but before 5 years elapse, would she upon completion of 5 years still be eligible for permanent residence under EU law even if divorced?

YES! Read the part regarding the 'retention of residence' from Chapter 5 of the ECIs to prepare the application for the EEA4 accordingly. The current form may throw you off but a covering letter should bring to attention that the right of residence is indeed retained.

[resol07]

Then the big question is, if he does divorce her after 3 years of marriage but before 5 years elapse, would she upon completion of 5 years still be eligible for permanent residence under EU law even if divorced?

YES! Read the part regarding the 'retention of residence' from Chapter 5 of the ECIs to prepare the application for the EEA4 accordingly. The current form may throw you off but a covering letter should bring to attention that the right of residence is indeed retained.

It looks like she will be able to apply for permanent residence even if her EEA husband divorces her after 3 years of marriage. As you point out, and Chapter 6, Section 6.2 further details, a non-EEA national can "qualify for a document certifying permanent residence or a permanent residence card" in case of "completion of 5 years residency after having retained the right of residence". All she needs to do is supply a valid passport and documentation confirming completion of 5 years residence in her circumstances. The best part is that she is not depdendent on the EEA ex-husband at all (e.g. it won't matter in case he leaves the UK, i.e. stops exercising treaty rights in the UK) so long as the divorce is final.

The only outstanding question then is whether she will be treated as a non-EEA "family member" even after divorce - and based on what I've read, I'm willing to venture a 'guess' that the very fact that applying for PR after "having retained right of residence" is explicitly covered implies that this is the case.

Therefore, I am inclined to say that the best advice here is to forget about any possibility of utilizing UK law and just rely on the permanent residence process tied to the European (EC) law. Since they've been already married for 1 year, the wife needs only additional 2 years in marriage to cross into the "safe territory" in terms of her ability to stay. Any shenanigans with UK spousal visa and a subsequent ILR will probably take around 2 years to complete anyway, so given the current situation, it's simply deosn't look like it woud be worth it. Any other thoughts?

[sakura]

Is the husband planning already for a divorce, or is she just worried about it? Are they currently still together, or separated?

[resol07]

Is the husband planning already for a divorce, or is she just worried about it? Are they currently still together, or separated?

I think they are neither separated nor planning a divorce. I think she is just concerned and wants to know her options. I don't know the personal details but there must be a real reason why she's worried about divorce.