Residence revoked while COA pending, any advice?

[Swan]

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 They then sent a letter (received this week) saying they are not satisfied and that his residence has been revoked and that he could appeal.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If we get COA can we marry even if his residence card (was due to expire in july 09) has been revoked?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

[isceon]

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

[Swan]

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

Thank you so much for the detailed reply, you are absolutely right, I just wish the HO were a little bit reasonable..but obviosuly they are so robotic that they don't take anything into consideration...the lawyer we hired is an immigration specialist and a barrister...our only worry is the delay in sending us the appeal notice..the UKBA took 5 months to reply and when they did, they asked us to act in "minus" two days !
The solicitor said that he needs to justify the delay and show royal mail delivery proofs and ask for an extension when submitting the appeal (which will at least give us time to think and act) ..now if they even refuse that ...it will be a real problem...


As for the COA, the same delivery problem happened, the case worker gave us seven days from the date of his letter to send him back a bunch of documents and affidavits that require a week to gather, he sent the letter by second class post, we didn't get it until saturday ...the deadline was for monday !
With all this, we managed with the short notice to gather everything and pay a 50£ for a notary who was luckily offering sunday emergency service, posted the application on monday next day delivery hoping if he gets it next day he will not make a decision...the snow delayed the royal mail and the mail hasn't been delivered yet !!!

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 ...

I am just so frustrated and angry with their unprofessionalism...why do they treat honest and hard working people like this? and why do they expect people to act in an extremely short amount of time to their multiple requests when they take forever to process anything and don't even bother to use first class mail....

Thanks again and wish us luck ...

[bebe2]

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 arrister keep assuring him but nothing positive has happened.

[isceon]

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

[bebe2]

my brother wasnt divorce as i atated but my point is he needs to have evidence of his ex wife was exercising treaty at the time of the divorce is one of the conditions on the eea 2006 regulation.

[Swan]

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

Thank you so much for the reply, it does help !

We have sent the appeal through and the COA application has also been received on their end...we are waiting on pins!

the Eu directive does not ask for the whereabouts of the EEA national...this is the paragraph:

5.2 Retention of a right of residence following divorce or annulment of marriage /
dissolution of civil partnership
Regulation 10(5) of the 2006 Regulations makes provision for the following:
If the marriage or civil partnership has lasted for at least three years immediately before
the initiation of proceedings for divorce, annulment or dissolution, and the parties to the
marriage or civil partnership had resided in the UK for at least one year during the
duration of the marriage or civil partnership, then the third country national retains a
right of residence if:
(a) they are pursuing activity which would make them a worker or a self-employed
person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the UK who is either a worker, selfemployed,
or is a self-sufficient person.
If the non-EEA national is a student then they will not qualify, unless they are a student
with sufficient resources to be self-sufficient.

5.3 Making an application following divorce or annulment of marriage / dissolution of
civil 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, selfemployed
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 UK
with the EEA national prior to divorce / dissolution of civil partnership, and that EEA was
exercising Treaty rights during that time.

our lawyer sent the appeal on grounds of this rule and human rights ...let's hope it works...
I will keep everyone up-to-date with my experience ...

[Swan]

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.

bebe thanks for the reply, can u explain your brother's case a bit more?
how long did it take to recieve the result of the appeal?
did he hear anything so far ?

[Morpheo]

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

[isceon]

I am sorry to disagree with you Morpheo but the law u are talking about is the EEA 2006 regulation wich is the uk transposition of the 2004 /38 Eu directive and in my opinion not a perfect one.
The condition you are refering to do not exist in the EU directive and one can argue that it is a misapplication of EU directive and can be challenged surely in a court case.
Anyway the European commission named the uk as one of the member states who has badly or wrongly transposed the particular article of retention of residence for non EEA.
ECj is going to be busy for sure.

[porkpie]

If you've been together for more than 3 years during which time the eea national is exercising treaty rights then it shouldn't have been revoked.

Morpheo, you need to go read the Home Office law and IDIs

PPie

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

[Morpheo]

Hey guys,

I think we are all agreeing to some extend:

As long as you are still married to the EU member, your status derives from her/his status.

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.

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.

M




[/u]

[thsths]

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 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.

So once you have separated/handed in the divorce (it is not quite clear which one), the situation of the EEA partner should no longer matter. This is also consistent with the stated intention of the directive to protect working family members in case of a divorce.

ID is not required, but evidence that the EU member was exercising the treaty right during the 3 years of marriage is a must.

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.

[Swan]

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.

Sorry to insist Morpheo ( our lawyer seems to be convinced it's not the case ! and I am starting to get scared !)

What do you make of the following taken from the 2005 directive ?

5.3 Making an application following divorce or annulment of marriage / dissolution of civil 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, selfemployed 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 UK with the EEA national prior to divorce / dissolution of civil partnership, and that EEA was exercising Treaty rights during that time.

[jude]

I am sorry to heard that
But what Morpheo is saying is right . you have to show prove that ur EEA wife/husband was exercising treaty right at the time of divorce or you are going to lose ur right .
What about if the EEA is a full time student at the time of divorce ? Do you need comprehensive medical Insurnace ?

[Swan]

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

Just to update everyone, we just recieved both COA's and passports after a long wait, we are so happy
the case of the residence is still in the appeal process, but at least we can get married now ! thanks to everyone who replied and helped with their experience ..
will post again if any developments

[Mary1]

Congratulations Swan, u finaly got what you really needed anyway!. Have a beautiful wedding am sure your both looking foward to getting on with your lives. As for the appeal do keep us posted, it would be interesting to hear of the outcome.

Mary

[irakro97]

Hello Swan

Have u got the hearing date set yet ?
how did it go ?

irakro97