Retained Rights of residence for non eea family member

[Musbti]

Hi everyone ,

I have searched a lot of forums but couldn't find similar situation like me so I thought to ask you for help, I will highly appreciate your experienced advice as I am definitely sure that whoever has gone through of the situation would know the pain i am going through.

I am Non EEA national, got married to a Romanian National in June 2012 in UK, now holding a EEA family permit till jan 2018. Last month my wife has broke the relationship and disappeared from home to her sister alleged me with some false allegation to get the non molestation order against me. We have two children from our marriage both hold Romanian passports. One is with her and one is with my parents (out of UK) since birth. She is not letting me see my child who is with her. After facing a lot of insults and fake allegation I have started divorce proceedings on 07-07-2017 ( no response yet).

from start of our marriage she was student then self employed, then a job then again self employed and then she was off for maternity allowance. she has submitted all her self assessment from 2013-14 to 2016-17 late in 2017. By somehow we managed to prove that she is a qualified person when she left the home. at the time filing the divorce petition she was working in my own company which she still has not resigned yet. Now I have filed the divorce from two weeks and I believe she will not be working or self employed now as she would like to affect my visa and she would definitely apply for benefits which she can get till the time of decree absolute, I am expecting some hurdles and delays from her in divorce too. I am going to apply child contact order for my child in the Uk.

In the light of above circumstances what would be the best planing which could lead me to get the PR on retained rights, please advice as I really don't want to go out of visa.

Regards
Sid

[Obie]

You are in a difficult position with the non-molestation order. A breach of it will carry a very hefty prison sentence. By saying she works in your company with this non-molestation order will create problem, as you are not permitted to work in the same place with her.

So watch out how you use her document, as the police can go on you, if she reports you. You will need her consent, and it is something you cannot do with the order in place.

Even though it is an ex-parte order, you could have challenged it, if it was wrongly granted.

[Musbti]

You are in a difficult position with the non-molestation order. A breach of it will carry a very hefty prison sentence. By saying she works in your company with this non-molestation order will create problem, as you are not permitted to work in the same place with her.

So watch out how you use her document, as the police can go on you, if she reports you. You will need her consent, and it is something you cannot do with the order in place.

Even though it is an ex-parte order, you could have challenged it, if it was wrongly granted.

Yes i have challenged it in court, my statement has submited too and the court has given dates to submit any witness statements and given the final hearing trial date of october.

I spoke to our accountant and he said as she is not working neither informed us so her payslip will still show up but the amount of work would be zero.

[Obie]

You need to try and come to an agreement with her. The last thing you want, is her telling the court that you have been abusing her, and took your elder child overseas without her permission.

For retention, there will be a doubt if she cease from exercising treaty rights. In situation where kids are involved, it is better to thread carefully.

[Musbti]

You need to try and come to an agreement with her. The last thing you want, is her telling the court that you have been abusing her, and took your elder child overseas without her permission.

For retention, there will be a doubt if she cease from exercising treaty rights. In situation where kids are involved, it is better to thread carefully.

Thanks obie, you are exactly explaining what i need to know, she already has said this, but the elder child born there and at the time she went there and given birth i was in uk and she went to my family and returned without him, we then wanted to bring him to uk but it took three years to get the romanian passport,
What will be the best planing to keep immigration in a nice planed maner shall i go on the child contact route?

[Obie]

If she tells the court the younger child is at risk of abduction and that you and your famity prevented her from bringing the older child to the UK , then a child contact order will be tough, ubless that aspect is resolved.

Your best option is to get the Non-molestation order rescinded, which will be a bit of a tough one, then seek mediation in regards to the child or children, and then you proceed with contact or child arrangement order, if that dis not work.

Even with the child contact order, you will still need to show that she was a qualified person at time of divorce. The child contact order only ezempts you from the 3 years marriage requirement.

If she cease treaty rights and go to benefit, then the clock for PR will be reset.

[Musbti]

If she tells the court the younger child is at risk of abduction and that you and your famity prevented her from bringing the older child to the UK , then a child contact order will be tough, ubless that aspect is resolved.

Your best option is to get the Non-molestation order rescinded, which will be a bit of a tough one, then seek mediation in regards to the child or children, and then you proceed with contact or child arrangement order, if that dis not work.

Even with the child contact order, you will still need to show that she was a qualified person at time of divorce. The child contact order only ezempts you from the 3 years marriage requirement.

If she cease treaty rights and go to benefit, then the clock for PR will be reset.

What will be then best option in case if she go to benifits, someone told me she will excercise treaty rights for first six months when she apply for benifits,
What visa i can apply then and how long will i have to wait in this case for pr?

[Obie]

The six mon the has been changed to 3 months and it applies to people seeking work. If your wife is not seeking work, then it will not work.

It seems counter productive to put in a divorce at this stage, at least from the Immigration perspective anyway.

[Musbti]

The six mon the has been changed to 3 months and it applies to people seeking work. If your wife is not seeking work, then it will not work.

It seems counter productive to put in a divorce at this stage, at least from the Immigration perspective anyway.

I tried a lot but matter is not coming to reconciling as she is not contacting to me or any of family member at all, even her solicitors haven't replied for the mediation at all, she is on legal aid and solicitors are making good amount of money so they will not even let her think about backing up. Really messed up and dont know what to do

[Obie]

She is on legal aid as she has claimed domestic violence, if the non-molestation order is rescinded then legal aid will discontinue.

By proceeding with divorce, you enable her and her solicitor to apply for ancillary relief and if not careful, you may come out with nothing, so it helps to think strategically.

I accept of course that even if you are refused, the non molestation will automatically rescind by default, once decree nisi is granted.

It will be in your interest to keep record of any service that you do, as that may be relevant down the line, in regards to cost.

[Musbti]

She is on legal aid as she has claimed domestic violence, if the non-molestation order is rescinded then legal aid will discontinue.

By proceeding with divorce, you enable her and her solicitor to apply for ancillary relief and if not careful, you may come out with nothing, so it helps to think strategically.

I accept of course that even if you are refused, the non molestation will automatically rescind by default, once decree nisi is granted.

It will be in your interest to keep record of any service that you do, as that may be relevant down the line, in regards to cost.

Thanks for your kind advice, i will try to take care in every step i take as advised, and will keep sharing the information to help others if needed
In the meantime if you can kindly please advise me would i be eligible for another 5 years family permit on the basis of my 2 years eea national child if i manage to get a contact order through court? (Pls bear in mind my child is with her mother in her custody and currently i do not have any contact with them but seeking to apply through court next week) I tried to find the laws but couldnt really understand, i am keeping this as a last option as i really dont want any lap in my visa,
Your help is much appreciated

[Obie]

Do you not have a solicitor dealing with your matters.

There are series of issues in your case, and the non-molestation order, all of these makes it difficult to advise, added to the fact that one does not know if the activities of your wife was genuine and effective, or she was earning enough or paying tax. There is also the issue as to whether you will have breached the non-molestation order if you used documents relating to her.

All of these complex issue, makes it hard to give concrete advice with confidence.

[Musbti]

Do you not have a solicitor dealing with your matters.

There are series of issues in your case, and the non-molestation order, all of these makes it difficult to advise, added to the fact that one does not know if the activities of your wife was genuine and effective, or she was earning enough or paying tax. There is also the issue as to whether you will have breached the non-molestation order if you used documents relating to her.

All of these complex issue, makes it hard to give concrete advice with confidence.

Hi Obie,
I am back again, I was just going through this forum searching and reading similar situations like me and found that you have helped so many people giving advice over the years, I read through a case story of hopeforee4. It is very similar to me I met a solicitor today got advice he hold my back and told me its not that complicated as i am thinking but it is still very hard to say 100% as you said,

I have a question here,
In one discussion someone has said if eea national already have completed 5 years as qualifying person then they retain pr itself. Can she obtained pr automatically if we are able to prove that her previous five years at the time she left was qualifying period and she already had pr at the time we started divorce?

[Obie]

Based on the information you provided, it does not seem to me, that your wife has accrued Permanent Residence.

She may acquire it by the end of April 2018.

The difficulty for you is, if you file tax return for 2017 to 2018 , claiming she is working in your company, you will encounter many problems. Not only will he accountant who does it, but also you. This is likely to affect your wife.

If or when she makes a benefit claim, she will say she is not working, so if returns are filed, it will indicate she is untruthful, and they will have her for benefit fraud. She will then deny it and this will get you and the accountant implicated.

You mat face several problems, one of which will be breach of the court order and the second will be false representation .

So think things through properly.

[ndson45]

hi all members, just to let you guys know i have receive my residence card without a latter that states i have retained my right independentlly. any know who do i contact and ther email so that them can send the latter thanks

[Musbti]

Hi Obie,

I have an update in my file and would like to share with you and seek for your further advice.

At the final hearing of the non molestation order the judge has discharge the non molestation order against me by way of giving undertaking and no dv have been proved. I have got it in writing from judge in the same order that my ex will not oppose my child contact order and she agreed it in principal.

Decree nici is to be issued on 1st of Nov 17.

Currently my ex is not working and I know thats a problem, But in current situation I am pretty sure that I will defo secure the contact with my EEA Child.

What are the best suitable option for me to secure my PR as I am working since m in Uk and got all the evidences.

I have read one of your thread somewhere in this site where you have said,

5.4.5 Making an application on the basis that Non EEA national has custody of the child
The following documents must be supplied:
Passport of Non eea family member
Divorce Certificate
Birth Certificate of child confirming relationship
Court order confirming custody or access in UK
Evidence that the Non EEA member is worker/self employed/self sufficient

My question again is will it be sufficient to provide child contact order along with my proof of working of last five years and proofs of my ex working till we got separated but not divorced? Need your kind advice please

[Obie]

You can only retain a right if you have one in the first place, and this is what the court has ruled. In light of you not having a right of residence, it is unclear how you will be able to retain one.

[Musbti]

You can only retain a right if you have one in the first place, and this is what the court has ruled. In light of you not having a right of residence, it is unclear how you will be able to retain one.

Thanks for your prompt response obie,

I currently hold Residence Card of a Family Member of and EEA National which has been issued on 31-01-2013 and is to be expired after completion of its five years on 31-01-2018.

Sorry If i previously have not mentioned it to you.

Regards

[Obie]

Having a residence card does not equate to having a right under EU law. To have a right of residence, you need to be a family member of a Qualified person or an EEA national with a right of Permanent Residence, which it does not seem you are at present.

Your case is very complex, and your ex refusing to exercising treaty right complicates thing immensely. It will require a very careful thinking.

I am happy though, that you have been successful in having the NMO discharged. I have been involved in these cases, so i know how much hardship and hindrance it can cause, especially if it was obtained by deception.

[Musbti]

Having a residence card does not equate to having a right under EU law. To have a right of residence, you need to be a family member of a Qualified person or an EEA national with a right of Permanent Residence, which it does not seem you are at present.

Your case is very complex, and your ex refusing to exercising treaty right complicates thing immensely. It will require a very careful thinking.

I am happy though, that you have been successful in having the NMO discharged. I have been involved in these cases, so i know how much hardship and hindrance it can cause, especially if it was obtained by deception.

Thanks again Obie,

The NMO was a big file of lies from my ex judge was very senior and wise he supported my side and put the light on my dbs saying no records of any criminal history,

I understand the complications to prove the excersing of treaty rights during divorce is being finalised and I will liase with my immigration advisor/solicitor soon after decree nice is been issued, But what I am looking to know that My daughter is my real child and I must have the right to access to her there must be some basis which can be helpful, if any?

[Obie]

You have a right to child arrangement order. If you make the necessary application and demonstrate you are worthy of such as order.

Having a child arrangement order does not confer on you any automatic right of residence, you must bear that in mind.

It does not seem there has been much progress in your case. and your Residence Card is due to expire in couple of month, you really need to up your game, with brexit and all the rest.

[Musbti]

You are in a difficult position with the non-molestation order. A breach of it will carry a very hefty prison sentence. By saying she works in your company with this non-molestation order will create problem, as you are not permitted to work in the same place with her.

So watch out how you use her document, as the police can go on you, if she reports you. You will need her consent, and it is something you cannot do with the order in place.

Even though it is an ex-parte order, you could have challenged it, if it was wrongly granted.

HI Obie,
Happy new year in advance,

I am back to your forum once again with some updates on my case.
I have got a supervised contact with my daughter and first session has been done yesterday, and I am pretty sure supervisor report will prove a very strong , good and loving relationship with my eea child, judge said on last hearing that we need to have a fact finding hearing to finalise this contact as mother has put some serious allegations and when saw the evidences from father then she changed her statement they may see her untruthful. but the fortnightly contact has started.

Regarding exercising treaty rights of my ex I have found out from one of her friend that she sent the application for benefits but also she is working as self employer (baby sitting and some private cleaning) this is what her living is at the moment. Decree absolute is coming hopefuly after new year. She still not in contact to provide any kind of evidence to help my case.

My eea resident permit is about to expire on 31 Jan 18 (a month left). When shall I apply for ROR and can I apply for PR straight away now as I have completed 5 years now.

Your Kind Advice is important to me.

Regards

[Musbti]

Also What if she dont apply for decree absolute before my resident card expire as I cant apply until 14th of March, shall I send Application In jan and send the decree absolute later when I have it??

[Obie]

Good to hear that you are able to see your child and now, and that the NMO has been discharged.

Perhaps it will help if you provide financial support for your child and that way, she will not be able to claim benefits.

If you are the petitioner, I really dont understand why you need to wait till March for decree Absolute.

The most difficulties for you is, you do not have her ID, no evidence of her treaty rights, and she is on benefits.

I am concerned that if a decree Absolute is granted before she exercises any treaty rights, you will permanently be unable to secure residence, unless you remarry.

I recall you mentioned an immigration adviser, did you discuss these matters with him/her , and is that person competent in this area of immigration law?

[Musbti]

Good to hear that you are able to see your child and now, and that the NMO has been discharged.

Perhaps it will help if you provide financial support for your child and that way, she will not be able to claim benefits.

If you are the petitioner, I really dont understand why you need to wait till March for decree Absolute.

The most difficulties for you is, you do not have her ID, no evidence of her treaty rights, and she is on benefits.

I am concerned that if a decree Absolute is granted before she exercises any treaty rights, you will permanently be unable to secure residence, unless you remarry.

I recall you mentioned an immigration adviser, did you discuss these matters with him/her , and is that person competent in this area of immigration law?

Hi And thanks for your reply
I am not the petitioner in this divorce, we both filed the petitions but she did not responded to mine and her petition is granted with decree nici,

When should I apply in case of not receiving decree absolute before expiry of my current eea card? Also shall I apply for pr now?