Retention of Rights EEA and marrying British National

[irakra]

Hi everybody!!

Does anyone know if I divorce my spouse (EEA) and qualify for retention of rights according to all these rules that we all talk about, if I want to get married with my partner who is a British national, if I would be able to do it in the UK and then apply for 2 years spouse visa while having this EEA family member residence card

[walesky28]

You'll need to apply for a Certificate Of Approval First. Even though you have retained rights, as far as the home office are concerned you are not an EEA family member. As a result of this, you will have to apply for a certificate of approval first and when you've received that (normally within 14 weeks), apply to marry at a registry within the UK. This certificate of approval is valid for any registrar of your choice within the UK for 3 months (you don't have to get married within 3 months, you just have to register to get married at a registrar's within this specified time).
Hope this helps.

[irakra]

thank you for your reply,
I just think they wouldn't give me this certificate of approval, coz I need to proove my new relationship, and they might suspect it's a marriage of convenience, as I recently divorced. I don't know. I think ho will need to see my divorce certificate and proove of our marriage was subsisting, i mean with my ex.

[Plum70]

I just think they wouldn't give me this certificate of approval, coz I need to proove my new relationship, and they might suspect it's a marriage of convenience, as I recently divorced. I don't know.

The burden of proof rests on you to satisfy the UKBA that it isn't a marriage of convenience. Of course if you plan to marry your current British partner shortly after divorcing your EU husband alarm bells are sure to go off.

Questions like: Where and when did you meet your current partner? How long has your r/ship been subsisting between you and your present partner? If you were still married to your ex at the time, how can you by way of documentary evidence prove the authenticity of this current r/ship?

I don't mean to sound pessimistic or judgmental but from from the UKBA's point of view it may look like a marriage of convenience at first glance.

[JA13I]

While I agree that it can look like a marriage of convenience, there is always ways to use it for your advantage!

For example, if the divorce was on the basis of a seperation for 2 years, can it not be argued that the reason for the divorce is that during the 2 years the EEA couple was seperated, another relationship blossomed and hence the reason for the divorce?

It can also be argued that as the OP already retains the right to stay in UK anyway, why would he/she get married to someone else for the very same right?

Getting to the main topic in discussion, why is the OP worried about getting the CoA in the first place? Do your homework properly. Let me make it easy for you here!

The rules on certificate of approval do not apply to you if you:

are a British citizen; or
are a national of a country in the European Economic Area (EEA); or
are the family member of an EEA national and have right of residence in the United Kingdom but are not yourself an EEA national; or
have in your passport a certificate of entitlement giving you right of abode in the United Kingdom; or
are not subject to immigration control.

[walesky28]

Like i said, you would have to apply for a CoA. I have been in the same situation, so i know.

Even though you are retaining rights, the Home Office's interpretation of the law is that you are technically not a family member of an EEA national anymore- it's a bit of a grey area, but under the strict definition of family member, you would happen not to be one.

I initially went to a registry office with my Residence Card Sticker as well as the CoA guide (link sent in the previous post from Jabi). The registry office then called the home office for more clarification on this (they have a special line they dial), and upon the home office getting back, they told the registry office that i was no longer a family member so had to apply for the C of A- which on the face of it seeems to go against the C of A letter guidelines- but the key to the HO interpretation would be their definition of a 'family member'.

The good news is that the C of A process is pretty straightforward and they do not do too much vetting. As long as you are still legally resident here, you would not really encounter problems with this.

[irakra]

Thanks a lot for your advice.

Tell me if you applied for this CoA yourself and how it was. My fear is that if I apply for CoA they might come back to me with the fact that I didn't inform HO that I got divorced when divorce took place. I didn't inform them yet, don't know if I should. Don't want to wait for 13 months like other guys from this forum. I thought maybe it's easier to get married with my boyfriend and apply for 2 year spousal visa, so that to avoid all this hustle with retention of rights and then after my RC expires go through another hell of PR application, they might want ex's passport and you know the rest from other guys experience...

[JA13I]

Even though you are retaining rights, the Home Office's interpretation of the law is that you are technically not a family member of an EEA national anymore- it's a bit of a grey area, but under the strict definition of family member, you would happen not to be one.

That is a strange interpretation for me because when the HO made the list of the people who are exempted, the first one they would have thought of when exempting for the CoA with 'the family member of an EEA national and have right of residence in the United Kingdom but are not themself an EEA national' part, is the partner of the EEA national.

So, when you were faced with such a problem, the right thing to have done was to make a written complain to the Registry that you have been denied a right that is given by the HO guidelines.

But if you found it easy to apply for the CoA, it might well have been OK from your point of view. To note, in similar circumstances, there has been instances in this forum in which the marriage was allowed to be registered without a CoA.

irakra, have to tried to register your new marriage with just the Residence Card or atleast made inquiries in your local Registry whether you will be allowed to do so, if needed, without a CoA?

[datuchi]

the family member bit applies to the non-EU parents/children of EU nationals and NOT to the spouses/civil partners. It makes perfect sense, you are NOT a family member once you've divorced.

Why don't you make your life easier and marry ABROAD in your NON-EU country or wherever you're from. Then they can't do jack as you'd be:
a) Married to a British citizen etc;
b) Would have retained the right of residence anyway.

[Directive/2004/38/EC]

Does anyone know if I divorce my spouse (EEA) and qualify for retention of rights according to all these rules that we all talk about, if I want to get married with my partner who is a British national, if I would be able to do it in the UK and then apply for 2 years spouse visa while having this EEA family member residence card

When did you marry the EEA citizen? When did you start living in the UK? When did you get divorced?

[JA13I]

the family member bit applies to the non-EU parents/children of EU nationals and NOT to the spouses/civil partners. It makes perfect sense, you are NOT a family member once you've divorced.

I am not debating that at all. Let me break it down to make it simple-

Who is the first person you think of when you say 'the family member of an EEA national and have right of residence in the United Kingdom but are not themself an EEA national'?

Of course- the wife/civil partner itself, is it not?

Yet amongst the exception for CoA, does the HO point out that these very first people should NOT be exempted and only the others (children/parents etc) should be exempted?

This is after I being not pedantic enough to debate that if dependant children of EEA nationals are still family members, if they can get married and thus stopping to be family member by becoming "independant" of the EEA national.

[irakra]

Thank you very much for your advice, but I spoke to HO and they said that I will be rejected CoA, if I don't apply for retention of rights and submit all necessary documents. As they said, in the eyes of HO I am still married to my EU husband, hence can't stay legally here, hence apply for CoA.

So there is no escape from doing it!!!!

[Directive/2004/38/EC]

So there is no escape from doing it!!!!

When did you marry the EEA citizen? When did you start living in the UK?

[Mnc]

Ok
Got married to an EEA member in Jan 2007, got the 5 year visa/residence document (using EEA1), in June 2007.

Things are not going too well just now, called the home office and found out that we should be married for 3 years before I can retain a right to stay here. Well a problem but not a big one, since we guys are planning an amicable divorce and would probably remain friends, so I can stretch it to 3 years, she would be concerned if I lost my right to live here.

Now what I wanted to know was, How do you apply for this who retaining the right thing?
Is there a form or something?
Also what happens at the end of 5 year period? What forms do I use? Would it still be EEA4, or will I have use the normal form for indefinite leave that you use after a 5 year period?
Is there any chance they can refuse me the right of retention?


Our 3 years will complete in Jan 2010 which apparently is closer then my cars next MOT, so we can workout things, but I need to know where I stand.


I would really appreciate help from people who know the procedure and related law, or those who have been through similar situation.

Thanks