separation from EEA national after 5 years

[djayMath]

hi Guys!!!!!!!

Many thanx to john, who helped me a lot when i was going to apply last february !!!!!!

My stiaution is:

*i'm a non-EEA national
*got married to EEA national in 2001
*I've been granted the 5 years residency in March 2002
*separated in Nov2006 and start divorce procedure in April2007
*i applied for my "PR" under EU/EEA regulations that came into force on 30.04.06

i've filled the EEA4, and add a covering letter as John advised me to do explaining my situation in details and attatched of course all my P60, ect ect

the big surprise is that yesterday i received a letter from HO asking me to send them :

1) the original passport of the EEA national
2) evidence that the EEA national has exercised treaty rights ( P60,....)for last 5 years
3)evidence that the EEA national presently exercising Treaty rights( recent payslips....)


it seems like they have ignored my cover letter and they dealt with my case as i'm applying with my wife...i start having a doubt if that retention of residence existe or not, Sorry john but this is a real case

could someone helps please, specially i cannot provide what they asked me for as my ex-wife didn't want to give me non of those evidence

is that means my application will be refused?????

Thank you very much

[djayMath]

i'm still waiting for an answer, advise, or explanation to what have hapened

please help...i got only three weeks to reply to HO

Thank you so Much

[SYH]

You have 3 weeks so why are you freaking out and expecting instant service. You posted last night. It is Sunday and people are off to a slow start.
Frankly, HO is entitled to ask for this info because anyone can claim they were here because of a partner and oh gosh darnit, we are no longer together at the 5 year mark.

So first things first, did you actually ask your x-partner for these documents?
Second, you are in divorce proceedings, you can make it part of your settlement to get this info or an understanding that she won't interfere in your obtaining a PR permit which in turn means cooperation and providing the documents.
Third, maybe Victoria can chime in but maybe there is some legal basis to compel her to produce the documents.
Finally, the best suggestion is to suck up to your x and get her to provide the documents, it is always better to get cooperation through their consent than forcing the issue legally.
Maybe the rest of the board, after they have had their morning cup of coffee will stop by and add their two cents but hold your horses. You are not the only person with issues on this board

[djayMath]

thank you SHY for your prompt reply and the interest you have given to my post

first and second: i've asked my x ( now she's in holiday to italy for 4 weeks) she said : No way i'll give you my documents, but she confirm she wont interfer in my case with H.O

third: i didn't understand your third point, sorry could you plz explain a bit more

finally, i've provided the three points they ask for in the directive 2004/38 to retain the residence after the breakdown of mariage
1) i've send all my work history for last 5 years (P60, payslips,....) just for your information i've never been in unployement
2) a long list to prove that we were living together for at least 3 years ( we lived togother for (5 years and 7 months EXACTLY)
3) proof that we've lived together in the UK for at least 1 year ( actually we've lived all this period in the UK

if my post is not clear enough, you can ask me and i'll reply starightaway

Thank you again SHY for your

[djayMath]

hi everyone!!!

john, if you see my post could you please tell me what you think

if anyone esle could help i will apreciate it

thank you so much

[Docterror]

Hi! The way I see it, one of the possibilities that the HO might ask for these documents is because you had only started your divorce proceeding back in April, and assuming that you applied for the confirmation of your PR in March, they MIGHT not see you as having 'retention of residence' but rather 'continuing right of residence' for which they are entitled to ask for the proof.

But If you had a covering letter explaining the facts, and still has the the documents asked for, then the only possibilties that I see are that is that either the covering letter is missing or the rest of the documents are! Whatever be the case, you are perfectly entitled to PR in your own right after exercising treaty rights for 5 years as they any rejection on the basis of no proof of EEA family member warrants an appeal and if it does indeed go to an appeal, then you should win, as the law is entirely on your side.

I would advice you to have a bit more patience as it really takes something special to make me be stuck indoors hacking away at a keyboard when blessed with a rare weekend when we atcually get to see how the sun is supposed to look like other than on television.

[djayMath]

Hi Docterror!!!!!!!!!!!!!!!!

you can't imagine how your reply make a big relief to me befor i go to bed

Thank you sooo much

i was entirely with your thinking (lost documents) , because thers is a big contradiction to ask me for those documents while i was explaining everything in details about our mariage breakdown

even befor applying i called the HO and asked for wich application to fill up as i'm applying on my own right, they told me to fill the EEA4 and ignore every part concerning your wife!!!!!

My last question Docterror : am i entitled to PR without having a final decree of divorce ??

good news : Next week seems to be very sunny, so you will enjoy sun for real not on TV

Thak you so much for your cooperation

[Docterror]

am i entitled to PR without having a final decree of divorce ??

The problem is that, this is a grey area. According to the HO, you either have a 'right of residence' in which case you will submit your spouse's EEA passport or you have a 'right of retention of residence' in which case you will submit the Absolute Decree. So, an application with neither of them takes a wee bit of thinking from whoever sees your case and there is where the trouble lies. Come on! this is the immigration and HO we are talking about.

So, chances are your case will be refered to a SCW who will look into all the details that you have submitted (assuming they haven't lost them) and then decide that you have the PR all along. In the rare possibilty they decide that you do not have PR, you have the right to appeal in which case I hope you have a 5 year old who can represent you at the appeal with the copy of the UK Immigration (EEA) Regulations 2006 and a copy of your Decree Absolute while you go get some candy for him to thank him on his success! Sending anyone older than that is an insult to the intelligence of the person involved.

While I may not have been entirely serious in the last statement, in case you are looking forward to naturalisation, see (5) of these notes on naturalisation which says, and I quote-

Since 30 April 2006, EEA nationals (or their family members) who have been exercising free movement rights in the UK for a continuous period of five years will, at the end of that 5 year period, be automatically entitled to permaent residence in the UK and will not need to obtain indefinite leave to remain in the United Kingdom before applying for naturalisation

Also note a statement a bit further down that states-

If you are a family member of an EEA national, you may meet the "no time limit" requirement in your own right.

So, relax and get ready in case you have a bit of a fight in your hands.

[VictoriaS]

I had a long chat with the guy from the EEA department at the Home Office about this last week, as I have a client with a very similar case.

I was told by this guy that those in your situation need to supply either the documents from your spouse or the decree absolute. He then got a bit vague, and seemed to say that a decree nisi would be suitable, and I think that you could very probably get approved with the nisi, with a bit of argument. But until the nisi is issued, then you are going to need your spouse's documnets as requested.

One other thing - if your spouse has applied for her blue card, then you can request that they cross reference your application with hers.

Victoria

[djayMath]

thank you so much jabi and Victoria for your help !! very much appreciated

couldn't go back to you earlier as i just come back from work, jabi hope you have enjoyed the sun today


jabi:

1) i understand very clear the grey area you were talking about, so if the SCW decide that my case will be considered under the retention of residence I will need to provide the final decree or the nisi as victoria have said, by the way Victoria what nisi is ??

in that case i'm wondering how long my divorce is going to take as my wife take such a long time to answer the court letter on top of she keep changing addresses ...Now she told me that she's planning to move to Scotland, just i'm giving you a few points to say that my divorce will take long time and i don't know if HO will wait for me until i provide them with the final decree???

So mathematically talking for "Retention i will need Divorce or so" !!!!!!!!!!!

the other side of the grey area i don't want even to think about it As i know she will not give me her documents

2) i'm very interested to your second point ( naturalisation), i read it more than 10 times since i become an expert of the new regulation April2006 but i've never understood it ..
if i'm automatically entitled to PR then apply for BC (after 5years) why all this then ??and they said without having ILR ..as far as i know the technical word is PR for the EEA case and not ILR ..but you are the expert and you can clarify this for me

3) you have mentioned in the rare case they can refuse my PR, in witch case in your opinion ??

4) Victoria, thank you so much to give me this similar example of my case, that make me more stronger to be ready for some fight as jabi has said

5) A big thanks to both of you !!!!!!!!!

[Docterror]

I will need to provide the final decree or the nisi as victoria have said, by the way Victoria what nisi is ??

It is interesting that Victoria has gotten a CW to agree to accepting a Decree nisi rather than the absolute one. But if you can get neither of them nor the identity documents, man, that really isn't upto me to comment on.

if i'm automatically entitled to PR then apply for BC (after 5years) why all this then ??

I am beginning to wonder the same thing. But it sure does make the naturalisation step easier.

Don't get confused by the statement given. When they say " will not need to obtain indefinite leave to remain in the United Kingdom before applying for naturalisation", they mean PR and the reason you don't need to get one is because, you already have one. So, the wording should have been more like "you do not need to obtain an endorsement confirming Permanent Residence before applying for naturalisation" rather than the former statement.

you have mentioned in the rare case they can refuse my PR, in witch case in your opinion

In case you have neither the Decree Absolute nor nisi nor the EEA identity documents, you MAY get refused. You must have some sort of proof from the court that you filed for the divorce, don't you?

jabi hope you have enjoyed the sun today

Thanks! The sun 'as seen on TV' was available locally. But, alas! Thanks to my employers I am safely stuck here with my head as far way from it as possible. Columbine, anyone?

...and Jabi... with a capital 'J' pls!

[johnny red fly]

Hiya

could anyone spread some light of what would happen in my case where i am getting divorce via the 2 years seperation route?
Married April 02 - seperated Sept 05 - applying for Divorce Sept 07 - Residence visa received Aug 02 - expires now

I am applying now under the new regulations, with cover letter, the ex wifes (Although not legally) passport, p60s etc which i have but in the eyes of the law still married although seperated for last two years

Am i still allowed to apply under this regulation?

[djayMath]

Hi Jabi

thank you for your reply, i have already two letters from the court concerning my divorce and i'm still waiting for the NISI decree

if i you go back to your last point where you start wondering as well, i think i found where is the misunderstanding

Since 30 April 2006, EEA nationals (or their family members) who have been exercising free movement rights in the UK for a continuous period of five years will, at the end of that 5 year period, be automatically entitled to permaent residence in the UK and will not need to obtain indefinite leave to remain in the United Kingdom before applying for naturalisation

the sentence said : who have been exrecising FREE MOVEMENT in the UK, they mean by free movement basically European family member and not non-EEA

what do you think ??

Last question : what shall i do while waiting for my NISI decree and cannot send the documents requested by HO

i'm thinking to write another letter and explain again that i'm separated as i mentioned in my last cover letter in case is missing

is there any suggestion ??

i'm so sorry to be a pain, but you and Victoria are the Only one helping me

thank you so much

PS: jonny i think you have much more chance than me, just be clever

[Docterror]

who have been exrecising FREE MOVEMENT in the UK, they mean by free movement basically European family member and not non-EEA

'Free movement' here is anyone covered by the FMOP (Freedom of Movement of People) Directive, which is currently Directive 38/2004/EC and easily covers non-EEA family members in your situation as well. Don't crack your head fussing over whether you are covered or not. You are!

what shall i do while waiting for my NISI decree and cannot send the documents requested by HO

I do not know for sure... lest you forget... IANAL. But my suggestion is to write a further letter again but this time also supply a certified copy of the 2 court letters to show that you are no longer with your EEA national. I'll let Victoria add in something if she knows better.

[Docterror]

johnny red fly, if you have all the required documents and have not yet applied for divorce yet, why do you ythink you will not be considered as having 'continued right of residence'?

[johnny red fly]

I am just wanting to clear up whether you have to be divorced or started proceedings to be able to apply under the 2006 regulations.?

In the case Diatta ECJ 267/83 establish that a spouse did not cease to be a family member in the event of separation until such time as the divorce was finalised, Decree Absolute obtained. So do I just fill in the EA4 form as if I am a am going along in a happy marriage and then when they do check and see different address etc refuse the visa or do I go ahead or am allowed to go ahead with a cover letter saying I am separated and wanting to apply under the 2006 regulations.
Maybe I am making a mountain over a mole hill?

[Docterror]

It's better to anticipate a potential mountain, than assume that it will be a molehill.

and then when they do check and see different address etc refuse the visa

They are not allowed to do that just because you have different addresses or seperate accommodations. Part of the Diatta case ruling was,-

MOREOVER , REGULATION NO 1612/68 CANNOT BE INTERPRETED AS REQUIRING A MARRIED COUPLE TO LIVE TOGETHER

IT IS NOT FOR THE IMMIGRATION AUTHORITIES TO DECIDE WHETHER A RECONCILIATION IS STILL POSSIBLE . MOREOVER , IF CO-HABITATION OF THE SPOUSES WERE A MANDATORY CONDITION , THE WORKER COULD AT ANY MOMENT CAUSE THE EXPULSION OF HIS SPOUSE BY DEPRIVING HER OF A ROOF . FINALLY , ARTICLE 11 OF THE REGULATION ESTABLISHES A MORE EXTENSIVE RIGHT OF RESIDENCE THAN ARTICLE 10 AND IS NECESSARILY BASED ON THE ASSUMPTION THAT IT IS POSSIBLE TO CHOOSE TO LIVE IN SEPARATE ACCOMMODATION

Strong and important words, indeed! Agreed that Article 11 of Regulation NO 1612/68/EC has been repealed by Directive 2004/38/EC, but the basic idea still is incorporated into the Immigration (EEA) Regulations 2006.

So, as long as you are making an application with all the documents required in EEA4, I would not even suggest send a covering letter explaining the whole thing right now, but rather wait for them to contact you and depending on whether you are divorced by then or not you can reply accordingly. Any alternative suggestions from other posters would be greatly welcomed.

[VictoriaS]

This is the problem - that if you are seperated but not divorced you need to show your spouse's documents. I have been advised that without this is will be refused. Of course, you have a right of appeal, and you may be able to stretch the appeal process out so that by the time it is heard you have the decree nisi....this is what I am hoping for my other client.


Victoria

[djayMath]

Hi

thank you Jabi for the advise

Victoria your last post made everything clear now

thanks to both of you

D-Math

[jamesadegoroye]

Hi John, Compliment of the season to you, i have just contacted my wife again and she is refusing to divorce me or do separation. At the moment we are not living together, i have got my own flat, and i have moved on with my life. I have all the document to show that we lived together for 5 yrs during our marriage and i have the photocopies of her passport, birth certificate and the green card that she was given when we applied for the residence permit under the EEC law. My situation now is that i am going to apply for the Permanent residence in 2008 under the current immigration law, but i am wondering what will happen if i didn't summit her passport with the application as she has refused to give me the passport
or her ID.
In addition, i also want to seek your advice on what i should be doing before my residence runs out, i am currently studying social work degree and i am in the final year, i also do part time jobs with my studies, but i am thinking of differing my admission for a year so i can do full time jobs as this might help the application.

I have gone to the family solicitor for divorce but they said they would need her to agree to it before the divorce can take place, but she doesnt want to give her conscent to the divorce and neither does she want to legally separate.
Please i need urgent advice on these issues
thanks
JA

[judde]

Victorias , i don't understand what u mean ? so what happen if you have the decree of nisi do you need to provide ur EEA husban/wife document or just yours with the decree of nisi?

[SYH]

but she doesnt want to give her conscent to the divorce and neither does she want to legally separate.

Why not?

[thirdwave]

but she doesnt want to give her conscent to the divorce and neither does she want to legally separate.

Why not?

I think its called blackmail in local parlance

[SYH]

but she doesnt want to give her conscent to the divorce and neither does she want to legally separate.

Why not?

Id rather hear it from james

[thirdwave]

but she doesnt want to give her conscent to the divorce and neither does she want to legally separate.

Why not?

Id rather hear it from james

He's been banned from the forum,BTW