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isceon wrote:HI sorry for the refusal.
Under EU law any revocation of residence card attract right of appeal.
Did u appeal?
If the answer is yes then He still has a right of residence and cannot be removed until the court has ruled about it .
For this reason I am convinced that u will get your COA if u proved that ur marriage is genuine.
However this won't solve ur residency problem if the AIT does not rule in ur favour.
Make sure to win ur appeal get a good sollicitor specialised in EU law.
I think u should convince the court that it is not reasonable to expect a divorced spouse to prove that his ex EEA was exercising treaty right at the time of the divorce as the relationship could have broke in an unpleasant manner.The Ho could easily check that the EEA was or not exercising treaty right at that time with the national insurance contribution or taxes contributions.
The provision of retention of residence in the 2004 directive is supposed to protect family member of EEA citizens not to punish them.
Good luck and good fight
isceon wrote:Hi swan I don 't agree with bebe2 .Your partner's case is totally different from bebe2's brother who was only separated from the EEA not divorced and by consequence did not apply for residence retention like ur partner did.anyway..
quote :As for his ex-wife, we just discovered now that she wasn't working and on job seekers allowance since they seprated...but we thought that didn't matter as long as he was working all the time as the rule stated ..it shouldn't matter because he is not asking for ILR he just wanted to keep his residence until it expires ...
If the ex EEA spouse was working and lost her job (not her own will) and is duly recorded with job centre then You have to prove that his ex was at the time of divorce on jobseekers allowance (wich they can easily cross check with National insurance number .It will be considered as exercising treaty right. that s the law and my understanding of it only .
U will get ur COA be happy.
Good luck
bebe thanks for the reply, can u explain your brother's case a bit more?bebe2 wrote:hi swan
welcome to our world,
exactly same thing happened to my bro 2 mths ago. although he wasnt divorced. they wanted him to prove he was exercising treaty. my bro appealed but he lost it. he asked for a review of the decision . it was refused now he is appealing again this has cost him over 3000 pounds and counting. his barrister keep assuring him but nothing positive has happened.
Morpheo wrote:I'm afraid that babe2 is right.
the law is very clear and it was explained many times in this forum.
The non EU spouse right to reside is linked to the status of the EU spouse.
it means that if the EU spouse wasn't exercising the right at the time of divorce then the no EU spouse ceases to exercise the right.
Hence, the HO is requesting evidence of the EU spouse exercising the right at the time of divorce.
However, I would have expected the HO to have better or clever ways of tracking this. ie: NI contributions.
M
I am not so sure about the first statement. If you read the Directive 2004/38 carefully, the 3 years count from marriage to the start of divorce proceedings. Although there is no mention when the retention of residence actually takes place (as an event), it would be logical to do it when all the requirements are satisfied, that is when the divorce proceedings are started.Morpheo wrote:If the divorce is not final and if the EU member leaves the country, then you go.
When divorced, that's another story and you will need to check if you meet the criteria to retain the status.
Retention applies when married for 3 years and both of you were living in the member state, in this case the UK.
I agree, and I guess a court has to set a precedent how that is supposed to happen. Because to the untrained observer, this seems like a real snag.ID is not required, but evidence that the EU member was exercising the treaty right during the 3 years of marriage is a must.
Sorry to insist Morpheo ( our lawyer seems to be convinced it's not the case ! and I am starting to get scared !)Morpheo wrote:Hey guys,
ID is not required, but evidence that the EU member was exercising the treaty right during the 3 years of marriage is a must. hence evidence for employment at the time of divorce.
Swan wrote:Hi all
me and my partner are very stressed and would appreciate any help
He was on a family dependent visa of an EEA national then got divorced after 4 years, he informed the home office of his divorce hoping to retain his residence according to rule 10 of EU regulation of retaining the right of residence. after 3 months they asked for information about his ex wife and what she was doing at the time of the divorce proceeding. He was unable to provide anything because she simply refused to cooperate, so he did inform them about that. They then sent a letter (received this week) saying they are not satisfied and that his residence has been revoked and that he could appeal.
meanwhile, naively thinking that he retianed his residence, I applied for a COA to marry him (I am not an EEA, but on workpermit and soon will be settled under 10 yr ILR), after almost 4 months, the COA people asked for more documents + affidavits + they asked for him to apply for a COA in his own merit (because they were told that his residence was stopped). We sent everything today and we are now waiting, we are also going to appeal for his retain of right of residence on the other side
Now our question is:
If we get COA can we marry even if his residence card (was due to expire in july 09) has been revoked?
Is he considered an overstayer now ? (the COA peoploe have both our passports)
any help or advice would be appreciated
thanks