Retention of rights

[Mary1]

Hi All, I have since posting my question

http://www.immigrationboards.com/viewto ... a2+divorce)

I have received a letter from h/o requesting more documents from my ex parner. I had not at this point adviced them of my divorce so i simply enclosed my decree absolute and the required proof of living together,bills, bank statements, latest payslips,certified pp of my ex

I also follwed similar devorcee posters and included my ex's pay slips leading to and after divorce granted.

My questions are

1.Do i qualify for a RC

2.If i get a residency card when will i be eligable for PR is it from when we got married or from the date the RC is issued.

Your thoughts are welcome

Mary

[porkpie]

I'd read section 6 of this guide:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

You may want to read it properly.

PP

[Mary1]

Thanks porkpie: I guess am looking for other peoples interpretion of the rules. I have read the said piece quite a few times.

Thanks

[porkpie]

Erm, yes, well i'd go by the rules as that's what the home office *should* follow (but of course be prepared for 'fun')

You may want to speak to the Immigration Advisory Service for more info, or even better an OSIC qualified person.


PPie

[juicybiscuit]

Not that his directly helps but here is my experience of applying for the same thing:

http://www.immigrationboards.com/viewto ... highlight=

[Mary1]

Thanks juicybiscuit, I have read your post as well and i imagine you havent received your reply yet. I hope we can all have some sort of respite in the new year. Seems when your circumstances change the BIA want to take up as much of your time to give desicions on retention of rights .....Good luck to you anyhow and lets keep posting our experiences to help others in the boat we are in..

Merry xmas to all and a happy new year.........

Mary

[Mary1]

Hi all an update

I received a letter from h/o requesting further information ....bills to shows 3 years of a subsisting relationship, my employment, and my ex spouses passport.(all documents are to be originals)

Having read a few posters today you wonder how the h/o conclude you will have a relationship good enough to request for such an item from an ex???....it baffles me.....i returned the docs on the 22.01,,,,,, called on friday 7.02...and of course since my application was made in march i was told a decision was reached last thursday and letter issued to me....

The h/o simply refused to tell me the outcome saying she would be breaking dpa although she confirmed she was speaking to the applicant??????

i guess i will have to wait until snail mail gets here ....cant even tell you all how anxious i am after reading of the refusals recently given for people applying in the same category.....

Mary anxious as hell

[Mary1]

Hi all an update

I received a letter from h/o requesting further information ....bills to shows 3 years of a subsisting relationship, my employment, and my ex spouses passport.(all documents are to be originals)

Having read a few posters today you wonder how the h/o conclude you will have a relationship good enough to request for such an item from an ex???....it baffles me.....i returned the docs on the 22.01,,,,,, called on friday 7.02...and of course since my application was made in march i was told a decision was reached last thursday and letter issued to me....

The h/o simply refused to tell me the outcome saying she would be breaking dpa although she confirmed she was speaking to the applicant??????

i guess i will have to wait until snail mail gets here ....cant even tell you all how anxious i am after reading of the refusals recently given for people applying in the same category.....

Mary anxious as hell

[isceon]

did you send the EEA 's passport as requested?
They made the same request to me and my ex refused to give me her passport,I sent all the other doc and I have been refused on the ground of no EEA ID or passport sumited as requested.
Pure madness >Those new caseworkers are from another planet.I wonder if they read their own EEA casework instructions wher there is no such requirement for retention rights.

[Mary1]

Hi isceon

I did manage to get the pp sent, luckily the ex and i still communicate but i dont know why i would have done. They have a certified copy that i original sent but they ignored it. sorry to hear about your refusal, It seems when you read Morpheo and jucy b posts you will find they both sent copies and it worked out well for them. the h/o seem to differ on how they process the retention of rights. I hope you can sort out an appeal coz wat they have done to you is just wrong.

Mary

[Swan]

Mary1

It sounds from reading yoru posts that you have provided them with all the documents they asked for, so no reason for them to refuse or reject you
It's funny they ask different people for different things, they asked us to provide employment details of my fiance's ex-wife at the time of the divorce proceedings..they never asked for her passport, I guess because he didn't apply using form EEA4 like everyone seems to be doing(i wonder whether we should have done that) we were adived by our lawyer ...
their answer was negative ..and was speeded up (took 3 months and a half) by our application for a certificate of approval to get married, so they felt they had to make a quick decision and tell him you have no right to retain your residence just to make our lives hell and prevent us from marrying ...I am sure if we hadn't applied for a COA, we would have been waiting for 13 months ...
any way ..we have appealed ..and we are now waiting ..

The irony in all this, is that the EU rule of renetion of right of residence is quite clear and does not require the divorcee to beg his ex for documents...these people are expecting you to have a loving caring relationship with your ex to the point where he/she can assist you with any requests for multiple documents...don't they realise that some poeple don't want to hear from their ex's ..and that marriages can break in very complicated and difficult circumstances...are these humans? and what gives them the right to invent rules and request things that are not covered by the directives...this gets me so angryyyyyyyyyyyy


anyway ...good luck and keep us posted, I am sure you will get a positive response either RC or PR
I will keep updating my case ...

[Mary1]

Thanks Swan,

Unlike other posters i applied using the eea2 since i had never applied for a RC before, it just so happend we split up and the divorce was put in while application was still in a queue. i then submitted the decree absolute when they req for more docs in december.

Its obvious that if you held a RC prior to a divorce you will most definatley get another RC anyway and PR is out of the question even if you have reached the 5 year Pr period. I dont know how the h/o gets by with such incompetence.

Sorry to see your partner's application was declined, its seems the h/o cannot be botherd to check if any NI contributions are being made by the ex thus making it easy for the applicant. but no they have to send you a refusal and then follows a court case which in my view is likley to go your way as the burden of proof lies with the h/o esp seeing that your partner sent a letter explaining all this.

if you do read the case worker instructions as you have, showing that your ex was exercising treaty rights at time of divorce is mandatory so i think if a judge if faced with your case proof can then be requested by legal means (i assume)

i really wish you the best and hope you get the outcome your partner deserves.

Mary

[Swan]

Thanks Swan,

Unlike other posters i applied using the eea2 since i had never applied for a RC before, it just so happend we split up and the divorce was put in while application was still in a queue. i then submitted the decree absolute when they req for more docs in december.

Its obvious that if you held a RC prior to a divorce you will most definatley get another RC anyway and PR is out of the question even if you have reached the 5 year Pr period. I dont know how the h/o gets by with such incompetence.

Sorry to see your partner's application was declined, its seems the h/o cannot be botherd to check if any NI contributions are being made by the ex thus making it easy for the applicant. but no they have to send you a refusal and then follows a court case which in my view is likley to go your way as the burden of proof lies with the h/o esp seeing that your partner sent a letter explaining all this.

if you do read the case worker instructions as you have, showing that your ex was exercising treaty rights at time of divorce is mandatory so i think if a judge if faced with your case proof can then be requested by legal means (i assume)

i really wish you the best and hope you get the outcome your partner deserves.

Mary

Thank you so much, your reply is much appreciated

I do hope things get sorted out for you too and everyone who is fighting for their right

(if you are lucky with the case worker who is dealng with your case) and if they ask for further documents and the applicant provides them within the time frame, they usually process the applications quicker
good luck

[isceon]

Those caseworkers don't even read their own caseworker instructions from their web site.
I start to think that they refused me because I did not apply for the retention of residence when I divorced but waited that I complete 5 year for PR (5 P60's evidence).

this is from their website it states :

5.3 Making an application following divorce or annulment of marriage / dissolution ofcivil partnership
The following documents must be supplied:
• Passports of the non-EEA family members
• Divorce certificate/certificate showing termination of civil partnership
• Evidence that at least one of the non-EEA family members is a worker, self-employed
or self-sufficient.
If we have not previously issued a residence card we must be satisfied that the alleged
EEA national is an EEA national and that the non-EEA nationals were living in the UKwith the EEA national prior to divorce / dissolution of civil partnership, and that EEA was
exercising Treaty rights during that time.

They specify clearly where they need to see the EEA passport when no residence card has been issued previousely,this why they asked mary to see her ex passport.
But in my case I had been issued by a residence card and they have seen my ex spouse passport on 2 occasions:
_when we applied for the residence card
-when we applied for ILR just before our marriage has brokendown and the application withdrawn.we divorced a year later.
They have no reason to ask for the EEA passport at all and I am counting on The judge to humiliate the HO representative.

[Swan]

Those caseworkers don't even read their own caseworker instructions from their web site.
I start to think that they refused me because I did not apply for the retention of residence when I divorced but waited that I complete 5 year for PR (5 P60's evidence).

this is from their website it states :

5.3 Making an application following divorce or annulment of marriage / dissolution ofcivil partnership
The following documents must be supplied:
• Passports of the non-EEA family members
• Divorce certificate/certificate showing termination of civil partnership
• Evidence that at least one of the non-EEA family members is a worker, self-employed
or self-sufficient.
If we have not previously issued a residence card we must be satisfied that the alleged
EEA national is an EEA national and that the non-EEA nationals were living in the UKwith the EEA national prior to divorce / dissolution of civil partnership, and that EEA was
exercising Treaty rights during that time.

They specify clearly where they need to see the EEA passport when no residence card has been issued previousely,this why they asked mary to see her ex passport.
But in my case I had been issued by a residence card and they have seen my ex spouse passport on 2 occasions:
_when we applied for the residence card
-when we applied for ILR just before our marriage has brokendown and the application withdrawn.we divorced a year later.
They have no reason to ask for the EEA passport at all and I am counting on The judge to humiliate the HO representative.

This is exactly the point that I am trying to make, and the basis on which we defended our appeal, our lawyer is convinced that the HO have no right to ask about the ex employment or ID since the non EEA applicant was and is still working and self sufficiant and was married for more than 3 years ..

[Mary1]

Hi all

My passport arrived(':D') and endorsed with the wrong RC of course .....seems the h/o dont actually have a RC that states a non eea has retained their right on his/her own merits. The same letter template as Morpheo and Juicy B and after 11 months i still will have to chase the h/o to send me a letter reflecting my correct status atleast. The most annoying thing is the letter request my case worker sent me ....See Below

Dear ,,,,

Thank you for your letter dated 8 December 2008 and for all the evidence provided in support of your application.
Further to providing 2 years worth of evidence of a subsisting relationship, can
you provide evidence for all of 2005 of a subsisting relationship, making a total of 3 years as
deemed so by the European regulations regarding the retained right of residence.

He then sends the wrong correspondence(':twisted:') I suppose the worst is over and i can look foward some sleep tonite...cant tell you enough how rough a ride it has been to get here...I hope my posts will continue to help others ..

Mary

[juicybiscuit]

Well done!

Good to hear another (semi) successful case.

it really is increadible that the HO are SOOOO useles they send you the RC with a letter for more information! It rely does defy belief.

I got an email back saying that a caseworker would review my complaint (about not sending me a letter stating that I had in fact retained my rights rather than one stating that I was a family member - duhhh). The best that can happen is that I get a letter back in a few weeeks.


Fingers crossed!

[Mary1]

Thanks Jb

I today finaly got a letter confirming am here still on my ex spouses merrits......same thing you got...i think they realised when i called the mistake they did......still doesnt help me but hey ho i kidna expected that. I will write to h/o on mon and also fax thorugh my request. They enclosed a fax number and department as well so will give that a try.. Keep us posted on how you get on with your complaint,as i will.

Mary

[datuchi]

Hi everyone,

A quick question here.

My parents recently obtained their EEA2 Residence Cards on the basis of being Direct dependant Ascendants of a non-EU national married to an EU national.
The Directive 2004/38 DOES NOT mention what the parents can do to retain the right of residence upon the divorce of their child with a EU national. As the child had been married for 4 years and can in his own right retain the right of residence, what is the position of his parents upon DVIORCE of their child? The Directive only mentions the position of children who are in custody etc. who retained the right of residence, but it doesn't mention children who are really adults and retained the right of residence. Clearly the parents are still dependant on the person who retained the right of residence, thus they should automatically be given right to retain the residence in their own right?
But how then and under what category does one apply? They would have not lived in this country for a required minimum of 3 years etc, are they to be treated similarly to the parents of children under certain age, who retained the right of residence (through education, domestic violence etc)?

Many, many thanks,

Davit

[Mary1]

Hi datuchi

Logic would imply that once you retain your rights then the assumption is your parents would as well. If you look at the eea2 and eea4 forms, there is a sections to include other family members in the application. I would ring the bia if i was you( try and speak to more than 5 advisors) and enquire...although the information you will receive is unlikley to yield and real answers. Try solvit or any other european based body for clarification.

Could you please give more information on what requirements you had to fulfill for your parents to obtain their RC on your dependancy as a Married couple. I only ask because if the original application included a financial aspect as a familiy unit(you and your ex) wheather this is a factor when re applying now that your a divorced

Other posters may have a different opinion. You will find your case is quite unique and i cant say i have seen this kind of situation before on this forum

Mary

[datuchi]

Hi Mary,

My situation is unique only because noone else seems to care about their parents
Logic... yes, if the parents are in this country on the basis that they have nowhere to live back home, and the non-eu national divorces, what does one expect the parents to do??? Clearly not to go back wherever they had come from.
I assume, provided they do not become burden on society... and the non-eu national can provide proof of financial stability, then it should be fine.

My situation is, in fact, a bit more complicated. My parents are actually, on paper, dependant on my brother (either of us could've applied) (who has the same status as myself) and his EU-national wife. Obviously, both myself and my brother provide for our parents, and in any case, they work themselves, so it's not like they're incapacitated, disabled dependants (god forbid).
Now, my brother might decide to go, wherever he wants to go in Europe, for good. What happens if he forsakes our parents here? Is he responsible for the 2 grown-ups upon whom it had assumed responsibility in the eyes of the HO? I want them to remain here with myself once my brother leaves. (he might want to take them with him, but that's another issue)
I was thinking of notifying the HO of the change of plan in writing, but I think we'll have to make a fresh application.
Everything boils down to the fact that, by the time my brother makes his move abroad, I would have (hopefully) retained the so-called rights of residence. And how would I get my parents to stay??? What form would they use? I cannot apply on the EEA2 as they won't be the fparents of the spouse of the EU national, they would be family members of the non-eu national who simply retained his lousy rights... what's their status?
I'm sure it'd be easy to prove that they can't go back to the country of their origin, cause that's the reason they had come here in the first place. They DEPEND on us. But, can they force my brother to take our parents with him wherever he goes?
And, even further, if he does go abroad within EU, that EU country would require proof of our parents' dependancy on my brother anyway (regular transactions, accommodation etc), which he won't have, as they work here in their own right (since the RC allows employment and business etc) and god knows might earn more than us held together.
So, being dependants here, doesn't mean they're going to be dependants FOREVER!!! Shouldn't legislation ENCOURAGE and not discourage taking up of employment??? Or, once they earned certain amount of fortune, they will be required to go away. Should the fact that they make their own leaving be concealed, as this would invalidate the Residence Card the very next day it's been issued on the grounds that they're not dependants anymore???

Sorry people who HATE TO READ... I hope one can follow the story line.

Thank you

[juicybiscuit]

Hi datuchi

Logic would imply that once you retain your rights then the assumption is your parents would as well. If you look at the eea2 and eea4 forms, there is a sections to include other family members in the application. I would ring the bia if i was you( try and speak to more than 5 advisors) and enquire...although the information you will receive is unlikley to yield and real answers. Try solvit or any other european based body for clarification.

Could you please give more information on what requirements you had to fulfill for your parents to obtain their RC on your dependancy as a Married couple. I only ask because if the original application included a financial aspect as a familiy unit(you and your ex) wheather this is a factor when re applying now that your a divorced

Other posters may have a different opinion. You will find your case is quite unique and i cant say i have seen this kind of situation before on this forum

Mary

Hey Mary,

Looks all good. Finally.

I complained about the endorsement that was put in my passport to which they replied was indeed the wrong one.

I then returned my passport with a covering letter which stated that perhaps I was due PR due to my marriage being in 2003. My solicitor mailed me this morning to say the passport had returned with a Leave to Remain endorsement that will expire 2019 - so ten years.

Is that PR?

Looks all good nonetheless - finally it looks like this is all over!