Post
by shandave2001 » Thu Mar 19, 2009 1:13 am
Hello
Have you got decree absolute? The relevant rule says marriage must subsist at least for three years and one year must be in the UK. The ECJ has clarified that the cpouple doesn't have to live under the same roof to prove their relationship. However, from your above posts, it seems, although the divorce was intiated after 3 years of marriage and your x-husband was in UK exercising his treaty rights BUT before the completion of 3 years, u left your husband and went to live with another man (i m not critcising). This means your relationship with ur husband broken down PERMANENTLY before the (needed) 3 years period was completed (unless u can convince a liberal judge that cohabiting with another man doesn't break your relatioship with ur husband). Situation would have different if you have not cohabited with another man and just lived separately from ur husband. In that case you would have right to apply for Retention of Right under EU law.
Now the problem is your claim of cohabitation under British law and claim of Retention of Right under EU are conflicting with each other, as 2 years cohabitation period negate the required post marriage 3 years period needed under EU law.
The problem is visa based on marriage/cohabitaion is dependent on one's partner, regardless it is British route or EU. As soon as relationship end permanently, visa dependent become liable to be removed, until s/he is able to use retntion right. If you apply based on cohabitation, maximum HO can do is to ask you to go back to your country by saying u have no leave to live in UK and apply from there, BUT they can ask you to go back only if you have not STRONG TIES to this country (as House of Lords judgement in a case last year). However, if you get married in the UK then the issue of cohabitation period is wiped away.
By the way, the visa you will get based on cohabitation will still be dependent on your partner. This will be 2 years (probationary) visa and can end if your relatioship break down permanently before completion of 2 years.
In regard to if you apply for Rights of Retention under EU route, I don't know how many and which sort of evidence you have to prove that relation with your x-husband lasted at least 3 years before divorce was initiated.
In regard to HO office asks ex's passport to apply for retention rights under EU law, well I didn't find any legal basis of this. All what needed is Judicail Review. What will happen HO will back down (as they usually do on such issues) or the Hight Court Judge will be staring at treasury solicitor to find out where was the legal or common sense bases to ask ex's passport.
