Is Divorce Necessary after 5 years living together with eea spouse

[gigtom]

i am wondering if anyone can help here.
i married my eea wife in Oct of 2012 received my RC in Feb 2013.
We separated in May 2018. I have evidence to show we had lived together until may 2018.
We are NOT Divorced yet, proceedings for divorce have not started.

My question is will i need to be divorced or have proceedings in place to stand a chance of succeeding with PR Application.

Thanks in advance for your response

[kamoe]

My question is will i need to be divorced or have proceedings in place to stand a chance of succeeding with PR Application.

Depends on whether you are in reasonable good speaking terms with your wife, or not.

If she is willing to cooperate with your application, and she is willing to apply for PR herself and include you in the application; or, if she's willing to give you access to her passport for you to apply on your own, then you do not need to get divorced yet, and as a separated-only spouse you can apply for an RC by virtue of the still existing legal marriage.

Now... If you go for Settled Status, and if your wife has applied, you don't need her passport, you only need her application number when you apply. This will link your application together (I'm unsure if the application will ask you to upload a copy of your marriage certificate though).

If, on the contrary, it will be difficult for you to procure her passport or her application number, then the alternative is to get legally divorced, and then apply for a Retained Right of Residence, a route where you can justify not procuring her passport because of difficult circumstances in your relationship. Note that you need to be legally divorced and be residing in the UK to apply through this route. I'm unsure if ti will be possible to make RoR applications after March 29th though.

[gigtom]

Unfortunately as is very common the relationship has irrevocably broken down.
There is a child involved and shes stopped me from having contact with the child,
so for the last few months we've been in and out of court hence i've had very little time to start divorce proceedings.

She has given me absolutely nothing to aid my application in way of her passport or HMRC docs.
I have been working with this solicitor who has advised me months earlier that as i have done 5 years with EEA spouse i attained PR status in Feb 2018 meaning i would be applying for PR and not RoR, hence a divorce not being necessary. I have questioned her on this several times but shes insisted she is right which i doubt.
We both prepared a covering letter which included letters from my Family solicitor to highlight the issues weve had. Several emails sent to ex requesting id/hmrc docs which she has not responded to, in addition to my sister who has been to visit my ex to ask for her assistance in providing her ID/hmrc docs to which she flatly refused. My sister has written a statement to verify the contact she made which will be to added to the application.

The cover letter will indicate that getting hold of my exes id and hmrc doc are beyond my control as i have made every attempt.

The only evidence i have in way of Id is a Photo Copy valid until 2022.
A photocopy of our daughters British Passport which indicates that ex acquired her permanent residency status which i have explained clearly to the home office. For an eea child to hold a BP either one of the parents must have settled status ie should have exercised treaty rights for 5 years straight. We have advised the home office to check exes Hmrc record.

So ultimately what you are saying here Kamoe is that without the divorce in place this application is still subject to refusal. Am i right saying that, please advise.

Many thanks

[kamoe]

So ultimately what you are saying here Kamoe is that without the divorce in place this application is still subject to refusal. Am i right saying that, please advise.

No, that is not what I am saying. I have not in any way commented on the likely outcome of your application (specially considering you had not explained your specific circumstances).

What I'm saying is, purey answering your initial question, and for the benefit of anyone reading this post:

1. In general terms, it is not absolutely necessary to be divorced in order to apply for PR as a separated partner. I give you the example where it would be even straightforward if you have the cooperation of your wife. Now that you have clarified your circumstances, this example does not really apply to your case.

2. That the route where you need the divorce in place is not PR but RoR, which I suggested as an alternative route. I suggested this, because not being able to provide your ex-spouse documentation is a common thing on RoR applications, in which it is all but normal that the HO procures and cross-checks the EU national record separately.

Again, I have not commented on PR applications where the applicant does not have the cooperation of the EU partner. I do not know if the HO is also in a disposition to accept these, or what the chances of success are if you apply for PR and cannot provide your EU spouse documents, acknowledging the breakdown of your relationship.

[gigtom]

Kamoe i very much appreciate your time .Thanks for your response, i will be heading for the courts tomorrow morning to kickstart the divorce process.
Just for further reference i read the guidance on settled status it says a non-eea national that can show evidence of working over a 5 year period via NI number together with evidence to show they resided with eea national over that same period and that they are now former family members can apply for settled status. They still require the EEa national id /passport however they will accept application if compelling circumstance prevents you from getting hold of the EEA id