Non EEA divorced right of retention - My experience so far..

juicybiscuit · Post by **juicybiscuit** » Thu Nov 06, 2008 5:38 pm

I'm posting here with the hope that someone can give me some advice. Also to let others in a similar situation have some advice as what to do or expect when applying to retain residency following a divorce from an EEA.

I am a non EEA who is living in the UK (for over 5 years). I was married to an EEA man who I divorced last year. We were married for over 3 years and lived in the UK throughout this time. Upon deciding to divorce I took it upon myself to apply to the Home Office to retain my residency as outlined in the immigration rules.

I then sought legal advice from a solicitor who assured me that I met all the criteria and as such made an application using the EEA4 form. Upon applying I submitted evidence of my employment, evidence in the form of letters and documents showing that we lived together in a subsisting marriage for over 3 years.

The application was sent out in December 2007. I got a reply from the HO in Feb 2008. I heard nothing until July 2008 when I got a letter asking for yet more evidence of my ex-husband excerising treaty rights. I then sent on what P-60's I could get my hands on from him. In addition they requested more of my payslips (no problem).

Then no word from the HO until August 2008, again asking for yet more documentation to show our marriage was subsisting and evidence of my ex-husbands treaty rights. I then sent back on Aug 12th what remaining documents I could (letter of employment from his ex-employer plus photos of the 2 of use on holidays over the years). Communication with my ex-husband has now broken to the point where he won't provide me with any more documentation. I pointed this out when sending the last lot of documents that he was unwilling to help any further.

Since that last letter I have heard nothing. I was then advised to contact my MP who wrote the the HO. They got a reply within a week stating that my case was with a caseworker and under consideration. So same stock answer as before!

That was over a month ago. I feel like I am in limbo now as it will soon be a year since my application was sent. My solicitor is also lost for a solution . The HO seem to either not be processing my application or delaying it. The last lot of evidence was sent in August and yet still no answer!

Can someone suggest what the problem may be? The evidence of our marriage and treaty rights being met was in my opinion quite thorough and there was a lot of it.

For anyone intending on doing the same bear in mind the following:

1. Send as much evidence about your marriage as possible. More the merrier. They seem to want a lot of evidence - more so than most people would normally keep.

2. The HO seem inept. Letters to me have had spelling mistakes - frequent misinterpretation of the law and have been sent to the wrong address.

3. The HO seem to have a really issue with whether your marriage was 'subsisting' for 3 years. We never had a joint bank account and he was in part time work / used savings etc so has been difficult to prove.

4. The HO wrongly insisted that I send a decree absolute even though I was yet to have it when applying. I then sent it on.

5. Be prepared for a LONG wait. The HO deem it acceptable to withhold your passport for a LONG time (nearly 1 yr and counting).

I've searched these forums a lot and cannot find any example of someone making a successful application for PR in similar circumstances so now I am worried. I know that I meet all the criteria and whilst they require a LOT of evidence I believe I have sent enough to prove I meet the conditions.

I'm really lost now though and feel as if the HO is stalling or ignoring me. I have just mailed my MP to try and yet again write on my behalf as the wait is unacceptable....

Thanks for any advice

bebe2 · Post by **bebe2** » Thu Nov 06, 2008 5:56 pm

hi
i am in the same position, my rc expires on the 17th if this month so i just posted my doc to the ho about four hours ago, i am in the process of getting a divorce, could only provide them with a decree nissi as the absolute is yet to be applied for. i gave them everthing i have so if the came for more i would have nithing to give as my ex and the new fling are nowhere to be found.
here is a list of what i gave them
me-passport
payslips
p60
letter from home office
employment letter

for ex
payslips
p60
ho letter
ho residence card
decree nissiand an explanatory letter
marraige certificate.

did they ask for your husbands passport?

and i think they will soon send yours bcos a friend who submitted his nov2007 got a letter today today saying it has been refused. but he did not divorce his wife he went on the grounds of separation.[/list]

daria · Post by **daria** » Thu Nov 06, 2008 7:32 pm

http://www.immigrationboards.com/viewto ... ht=morpheo

thsths · Post by **thsths** » Thu Nov 06, 2008 7:56 pm

juicybiscuit wrote:2. The HO seem inept. Letters to me have had spelling mistakes - frequent misinterpretation of the law and have been sent to the wrong address.

...

5. Be prepared for a LONG wait. The HO deem it acceptable to withhold your passport for a LONG time (nearly 1 yr and counting).

Is there any reason for posting this several times?

Apart from that, yes, the HO is certainly not doing a good job. But what do you expect from hastily trained "new staff"? The whole move to Liverpool was an accident waiting to happen, and now it is here.

But you do not have to be without your passport for the whole time. You can ask for it to be sent back, and it has no influence on the application. I would even suggest to sent it in only after you have received a promised time frame for the decision.

juicybiscuit · Post by **juicybiscuit** » Thu Nov 06, 2008 8:54 pm

thsths wrote:
juicybiscuit wrote:2. The HO seem inept. Letters to me have had spelling mistakes - frequent misinterpretation of the law and have been sent to the wrong address.

...

5. Be prepared for a LONG wait. The HO deem it acceptable to withhold your passport for a LONG time (nearly 1 yr and counting).
Is there any reason for posting this several times?

Apart from that, yes, the HO is certainly not doing a good job. But what do you expect from hastily trained "new staff"? The whole move to Liverpool was an accident waiting to happen, and now it is here.

But you do not have to be without your passport for the whole time. You can ask for it to be sent back, and it has no influence on the application. I would even suggest to sent it in only after you have received a promised time frame for the decision.

I did see that I could request the passport back but it looked like you had to have a blooody good reason else they will cancel the whole process. Another issue to take into account is that I am worried that even if they did send me back my passport it would only delay what has already been a horribly long (and so far unproductive) process.

I just cannot understand why it is taking so long. You mention about getting a time frame for the decision but how on earth do I get this. I phone up the HO only to be told that it is under consideration. My MP writes a letter and gets exactly the same response.

I feel utterly lost....

Bebe2 - They do not require your spouses passport (and mine would have certainly not allowed it to be sent when I made the original application). I did however manage to send a photocopy of it.

I sent similar stuff to what you did although a lot of it. They did seem more concerned that my ex husband was exercising treaty rights at the time the divorce was initiated. Seems strange to me but I was able to satisfy this I think.

thsths · Post by **thsths** » Fri Nov 07, 2008 9:31 am

juicybiscuit wrote:I just cannot understand why it is taking so long. You mention about getting a time frame for the decision but how on earth do I get this. I phone up the HO only to be told that it is under consideration. My MP writes a letter and gets exactly the same response.

You write a letter and ask. I never said it would be easy, and it is entirely possible that you will not get a response before Christmas. But that would probably mean that you would not have gotten the passport back before Christmas.

Threat the Home Office like a business you do not trust, but you have to deal with. Do everything in writing. Always set a deadline for the response (2 weeks is usually appropriate). And never assume anything.

juicybiscuit · Post by **juicybiscuit** » Fri Nov 07, 2008 3:14 pm

Hi again thsths. Thanks for the advice.

I think I'll look into at least getting my passport back but only if new possible new residency visa is not needed to be stamped inside it. I think looking around I may get a residency card instead of what I currently have (ink stamp with the name of my ex husband in passport). Does that sound about right?

Also, I'm not sure if you know but do the HO generally require passports to grant residency at the moment it's granted? They've had mine since Dec 2007 so surely if there's not going to be a physical stamp in it then we won't require it? Any ideas?

I read Morpheos posts (link above) and it seems very odd as they sent back his passport with what looks to be the same residency status as when he was married. I was hoping I would get PR but if it's only a simple retention of my exisiting visa status then I guess that will do - so long it's not dependent on an ex-husband of mine!!

bebe2 · Post by **bebe2** » Sat Nov 08, 2008 11:19 am

juicybiscuit,
has the ho asked you for evidence of your ex exercising treaty at the time of the divorce? i have heard people been that and thought it was ridiculous but i just found it on the 2006 eea reg.

A person satisfies the conditions in this paragraph ifâ€”

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination

juicybiscuit · Post by **juicybiscuit** » Sat Nov 08, 2008 2:39 pm

Yes the HO asked for that which I as well thought was odd. I think I satisfied it with a letter from his employer though. It's good that we were in contact before I needed it...

juicybiscuit · Post by **juicybiscuit** » Mon Nov 10, 2008 3:12 pm

juicybiscuit wrote:
Also, I'm not sure if you know but do the HO generally require passports to grant residency at the moment it's granted? They've had mine since Dec 2007 so surely if there's not going to be a physical stamp in it then we won't require it? Any ideas?

I read Morpheos posts (link above) and it seems very odd as they sent back his passport with what looks to be the same residency status as when he was married. I was hoping I would get PR but if it's only a simple retention of my exisiting visa status then I guess that will do - so long it's not dependent on an ex-husband of mine!!

Any ideas anyone?

bebe2 · Post by **bebe2** » Thu Nov 27, 2008 11:13 pm

hi juicybiscuit, any news on your application?
just thinking you might want to check your coa letter and get the name of your caseworker then write of ask to speak to them directly pple seem to be getting quick answers with them.

juicybiscuit · Post by **juicybiscuit** » Mon Dec 22, 2008 3:00 pm

bebe2 wrote:hi juicybiscuit, any news on your application?
just thinking you might want to check your coa letter and get the name of your caseworker then write of ask to speak to them directly pple seem to be getting quick answers with them.

No word still - ONE YEAR ON!

I have just lodged an official complaint with the North West Customer Service department. They initially told me they would investigate and get back to me within 20 working days. I'm now on about day 6. Given my experience so far I'm not holding out much hope of getting any sort of resolution.

....one year and still now word..... unacceptable.

*edit* regards the name of the caseworker - there have been 3 chase up letters written directly to my caseworker all of which have not been acknowledged or replied to. Hence my formal complaint.

thsths · Post by **thsths** » Mon Dec 22, 2008 3:44 pm

juicybiscuit wrote:No word still - ONE YEAR ON!

I know it is a disgrace, but I am not really surprised. Even the simple applications are taking 8 or 9 months, so I am sure that complicated cases are not a high priority right now.

Have you considered complaining to someone outside of the UKBA? I think you can contact your MP and refer the case to the Parliamentary Ombudsman, or you can send a complaint to the European commission.

juicybiscuit · Post by **juicybiscuit** » Mon Dec 22, 2008 5:51 pm

thsths wrote:
juicybiscuit wrote:No word still - ONE YEAR ON!
I know it is a disgrace, but I am not really surprised. Even the simple applications are taking 8 or 9 months, so I am sure that complicated cases are not a high priority right now.

Have you considered complaining to someone outside of the UKBA? I think you can contact your MP and refer the case to the Parliamentary Ombudsman, or you can send a complaint to the European commission.

My MP wrote a letter on my behalf to which they replied with a stock 'under consideration' reply. I then asked her to push again for a more satisfactory reply to which she told me to contact her again in 6 months if I STILL hadn't heard anything. Fat lot of good that did....

juicybiscuit · Post by **juicybiscuit** » Mon Jan 19, 2009 5:22 pm

Another update.

Over one year and still no decision on my case.

I have complained to the NWCSU and received a letter stating that my case was now under 'priority consideration' with a case worker and that a decision was expected 'imminently'. Still no time frame though.

Anyone had a similar letter after complaining? Imminently?

bebe2 · Post by **bebe2** » Mon Jan 19, 2009 5:44 pm

i dnt believe this. its a record. come to think of it i have heard of any one that got their pr on grounds of divorce have you?. and to think i just applied last month.

good luck

juicybiscuit · Post by **juicybiscuit** » Thu Jan 22, 2009 10:42 am

bebe2 wrote:i dnt believe this. its a record. come to think of it i have heard of any one that got their pr on grounds of divorce have you?. and to think i just applied last month.

good luck

I'm only applying to retain my existing rights. If I get PR it's a bonus.

juicybiscuit · Post by **juicybiscuit** » Thu Feb 05, 2009 11:43 am

An update FINALLY.

I finally got my documents back (13 months after sending them away).

Like Morpheo the HO have simply sent me a new residence card which states I am a family member of an EEA national (slightly odd as the whole reason for me applying is that I have just ceased to be a family member).

The residence card is a photo one on a sticker attached to my passport and is valid for 5 years.

In addition I got a bog standard letter stating my only claim to remain here is a a family member of an EEA citizen and should he leave or I cease to be a family member (which is the case) then I should notify the HO.

WHAT A BUNCH OF IDIOTS.

So long and short is:

- HO looks like they're happy for me to retain my rights.

- HO haven't got a suitable Microsoft Word template set up which deals with such circumstances so decide to throw in a bog standard letter which isn't relevant to me.

- HO haven't got a suitable residence card for my circumstances so just use the bog standard family member one.

I've now written a scathing email to them requesting they send at the very least a letter stating that I have retained my rights of residence having ceased to be a family member of an EEA citizen.

There's no way in hell my rights of residence are dependent on an ex-husband (and ex-family member).

It's really sad (but totally expected) that the HO just can't be bothered to try and give me a little more clarity, or at very least some documentation that I can show at the airport if needed.

isceon · Post by **isceon** » Thu Feb 05, 2009 12:00 pm

Thanks for keeping us informed and congratulations. After such a long wait u deserve a very long nice holyday.
So when can u apply for PR did they say anythink(I was genuinely persuaded that u were entitled to PR already but hey this is the HO )
Anyway I am very happy for U good luck in ur life.

juicybiscuit · Post by **juicybiscuit** » Thu Feb 05, 2009 12:05 pm

I applied for a residence card using the EEA4 form.

Not sure why I couldn't get PR - perhaps it was due to me applying simply to retain my existing rights?

My passport with the new card in has now expired. I really hope this doesn't cause me headaches as I was hoping to attach it to my new one (that I'm now applying for) and use it that way (which I think the HO told me was ok).....

isceon · Post by **isceon** » Thu Feb 05, 2009 12:20 pm

I think u should not have any problem to extend the validity of ur passport by ur embassy now that u have a valid uk residence sticker in it.

juicybiscuit · Post by **juicybiscuit** » Thu Feb 05, 2009 12:22 pm

That's not the issue. I just hope the immigration officials at the airport are happy to see the residence card in my old passport whilst I use my new one. I heard some people staple them together and do it that way.

Plum70 · Post by **Plum70** » Thu Feb 05, 2009 12:28 pm

juicybiscuit wrote:That's not the issue. I just hope the immigration officials at the airport are happy to see the residence card in my old passport whilst I use my new one. I heard some people staple them together and do it that way.

Don't staple together if you have biometric passports though!

juicybiscuit · Post by **juicybiscuit** » Thu Feb 05, 2009 1:58 pm

Plum70 wrote:
juicybiscuit wrote:That's not the issue. I just hope the immigration officials at the airport are happy to see the residence card in my old passport whilst I use my new one. I heard some people staple them together and do it that way.
Don't staple together if you have biometric passports though!

I'm sure my new one won't be of that type but thanks for the advice!!

irakra · Post by **irakra** » Thu Feb 05, 2009 4:15 pm

I can't believe that!!!! It's the same thing as what happened to Morpheo.

Is it to much to ask just a letter reflecting the retention of rights.

Anyway, thank you very much for keeping us all updated. Somehow I suspected that outcome, still you can apply for any visa without your spouse's passport. Hopefully by the time you apply for pr they would be more sensible.

Otherwise, I wish you good luck, make sure that you don't need to apply again if you change your passport.

THANK YOU VERY MUCH FOR YOUR HELP

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Non EEA divorced right of retention - My experience so far..

Non EEA divorced right of retention - My experience so far..

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