EEA Retained Right of residency declined

[Kay77]

I am a non EU married to an EU national in 2002.

We separated in 2006, but he has refused to grant me a divorce and has since left the country.

Last year (at the end of my 5 years permit), I was advised by my solicitors to apply for retained right of residency, and they invited the HO to check his tax and NI records as unfortunately, I didnot keep any of his documents. To my horror, the HO declined the application because 1. We are not divorced and 2. We didnot supply documentary evidence of his exercising his treaty rights.

Any advise? I have got upto this Friday to appeal.

[thsths]

I am a non EU married to an EU national in 2002.

We separated in 2006, but he has refused to grant me a divorce and has since left the country.

Was that before June or after? And did you pursue a divorce from your side?

I think you need to talk to your solicitor. You should probably appeal, although you may also have the option of sitting still and waiting for the HO to take the first step.

Unfortunately the law is rather vague on what happen in case of separation, and I think this gap has to be filled in by the judges. You stand a good chance of winning, but you need to make sure that your case is "convincing". It would probably help if you start a divorce. Part of the agreement would be his support for your application.

Tom

[bebe2]

did they really say because you re not divorced? from my understanding if you are separated and he lives the country then you can retain your residence . i will say appeal and get all your paper work together. if you go on the net there is a website that does p60s or you can ask inland revenue for some they will advice you if they cant help.you can also check the electoral register even friend can write you a covering letter.
judges are much more understanding.

[Wanderer]

did they really say because you re not divorced? from my understanding if you are separated and he lives the country then you can retain your residence . i will say appeal and get all your paper work together. if you go on the net there is a website that does p60s or you can ask inland revenue for some they will advice you if they cant help.you can also check the electoral register even friend can write you a covering letter.
judges are much more understanding.

I don't think that's true, the whole point is the OP is here 'on the back' of her husbands EU Treaty right, as they are still married, he goes, she goes. If divorced after marriage for three years, one year in UK then no problem, the lack of divorce leaves the OP in limbo.....

[Kay77]

I am a non EU married to an EU national in 2002.

We separated in 2006, but he has refused to grant me a divorce and has since left the country.

Was that before June or after? And did you pursue a divorce from your side?

I think you need to talk to your solicitor. You should probably appeal, although you may also have the option of sitting still and waiting for the HO to take the first step.

Unfortunately the law is rather vague on what happen in case of separation, and I think this gap has to be filled in by the judges. You stand a good chance of winning, but you need to make sure that your case is "convincing". It would probably help if you start a divorce. Part of the agreement would be his support for your application.

Tom

I applied in Oct 07.

Yes it is very vague, but a quote from their refusal notice "you are not divorced, and therefore do not qualify under regulation 10", they require one to be divorced before pursuing this route. What do you mean by waiting for the HO to take the first step?

[Morpheo]

I am far from defending the HO, however, the guidelines are clear

if not divorced, you are still considered as a family member, hence, you depend on him. if he goes you go.

even if you get divorced, you will need evidence that he was exercising the treaty right at the time of divorce. (payslips...)

The way I see it: you have two solutions and I am afraid to say that both of them require your spouse to be in the UK.

- EU spouse in the UK and ask him to help and provide the needed documents to gain the PR.

- EU spouse in the UK, start the divorce proceeding, this options will take time depending when the decree will become absolute.

M

[thsths]

however, the guidelines are clear

if not divorced, you are still considered as a family member, hence, you depend on him. if he goes you go.

Yes, that is what the law says, but it does not make a lot sense. So I think this is for the judges to decide, and it will have to be the ECJ for a definitive answer.

even if you get divorced, you will need evidence that he was exercising the treaty right at the time of divorce. (payslips...)

I agree, although there should also be a viable procedure in place if the spouse does not cooperate. At no place does the law require that you are still on good terms, so this cannot be implied in the rules, either.

The way I see it: you have two solutions and I am afraid to say that both of them require your spouse to be in the UK.

And there is solution number 3: go to court. But getting divorced is certainly the safer option.

Tom

[Kay77]

even if you get divorced, you will need evidence that he was exercising the treaty right at the time of divorce. (payslips...)

The way I see it: you have two solutions and I am afraid to say that both of them require your spouse to be in the UK.

- EU spouse in the UK and ask him to help and provide the needed documents to gain the PR.

- EU spouse in the UK, start the divorce proceeding, this options will take time depending when the decree will become absolute.

M[/quote]

My spouse has refused to coorporate and is not in the UK. I have evidence of his treaty rights up to 2006 when we separated. If I start divorce proceedings now, would I have to provide evidence of his treaty rights up until now? As I only have info up until the separation, will that cause problems?

On the subject of starting divorce proceedings, can I then ask the Tribunal to reconsider my EEA4 application at the tribunal as I have intiated proceedings?

[thsths]

My spouse has refused to coorporate and is not in the UK. I have evidence of his treaty rights up to 2006 when we separated. If I start divorce proceedings now, would I have to provide evidence of his treaty rights up until now?

That is a complicated situation. I think you should get a lawyer who is familiar with European law. It is quite possible that you have to appeal to get your residence.

[bebe2]

why does she need payslips of when the divorce took place ,shouldnt the one year and three tears treaty payslips be enough .most divorce happen after a long separation how is she going to get the payslips if the hubby does not co-operate?

[Morpheo]

it seems that the HO has found a back door, technically, if your spouse leaves the country and you being a dependent you will need to leave the country or you will be in breach of the treaty right, hence, being illegal.


the HO is applying the logic of, you can only retain the status that you had before the divorce.

Spouse leaves == you leave == after divorce you leave
Spouse exercises the treaty right == you stay and exercise the treaty right == after divorce you retain the status

I guess that in the situation that the ex spouse was exercising the treaty right at the time of divorce and NOT willing to collaborate, you can inform the HO about it and they could run a back check with his National Insurance number.

But, if the ex spouse left before the divorce was final, then the HO could deny the right to retain.

M

[jude]

Morpheo, I just don't understand the whole issue here . I spoke to a senior member in OF and I was told The only proff you need for your EEA is that the marraige last more 3 years and living togther in uk for 1 year which is bills , non need to sent payslip for ur EEA and also you need to wait till the end of your five year befor you apply was that right?

[Morpheo]

Hi Jude,

Talking from experience, I am afraid that this is not the case and believe me when I say that i was under the very same impression.

here is the answer I got from UK SOLVIT Centre

The right to reside for the non EU spouse of an EU citizen following divorce is defined in Article 13 of Directive 2004/38/EC, a citizen cannot lose the right to reside if at the time that the proceedings began they were legally resident in the Member State, to have been legally resident at the time of initiation of divorce proceedings the non EU spouse would have to be residing with an EU citizen who complied with the requirements of Article 7, employed, self employed or self sufficient, definitely resident in the Member State.

The Home Office is seeking from you confirmation that your wife was legally resident in the UK at the time that the divorce began, if she was not legally resident in the UK then you would not have been legally resident, as your rights derive from her rights. The Home Office cannot dictate to you which documents you must provide, only that you must present to them confirmation, and they can only require you to provide evidence that at the time of your divorce she was legally resident, hence their request that, if she has left the UK, the date that she left, to ensure that she was still in the UK on the date that the divorce began.

I hope this helps

M

[Frontier Mole]

This is not a very common situation but it is well known. The issue is simple in terms of EEA regulations.

Non EEA spouse in the UK with husband / wife exercising treaty rights. Marriage subsists for 3 years or more of which 1 year is in the UK, then at point of divorce the non EEA spouse can have UK residency.

The problem in this case is there is no divorce and equally no evidence of the EEA spouse exercising their treaty rights in the UK. Hence without the evidence of either event the extension can not be granted. The EEA spouse will no doubt not support a home country visa entry so that leaves the non EEA spouse without any recourse to legal stay in the UK or the EEA spouse home country. It really is very nasty; it is a form of abandonment that leaves very little in the way of options for the non EEA spouse.
I believe there may be a method of resolving the position by seeking divorce in the EEA spouses country or alternatively in the country where they married if not the UK or the EEA spouses country.

You need professional advice from someone who is aware of the divorce & immigration laws in the EEA spouse country as you may have rights that are better there than in the UK.

[jude]

Thx for your reply guys , Is it possible for EEA to exercise treaty rights. through study full time course and looking for job? Does she need private medical Insurance ?

[No Name]

Thanks to Morpheo for sharing the answer from the UK SOLVIT CENTRE.

Something that people often seem to forget is that the "Solvit centres" are NOT the EU. If you read carefully on:
http://ec.europa.eu/youreurope/nav/en/c ... l#11444_14

You will find the sentence: "SOLVIT Centres are part of the national administration and are committed to provide real solutions to real problems within a short deadline of ten weeks."

Please remark the words: "national administration" in that sentence. It is therefore not surprising that the Solvit Centres usually agrees with the position of their respective government.

To get the position of the EU on questions like the one discussed in this thread, the European Commission needs to be contacted and not the Solvit Centres (In my opinion the best way to use assistance from Solvit is first to make a complaint to the European Commission and then wait for the answer. You can then ask for assistance from Solvit (send them a copy of the answer from the European Commission and then they might help you))