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

[bebe2]

without pr she cant apply for citizenship. right?

[Ale13]

ohhhh my godddddddddd!!! what a story!!!
well. I'm still waiting for my passport and EEA2 for more than a year,
so I know how you feel...but hopefully will have it soon,just got an answer of my second complaint letter saying that my documents will be send to me "shortly".
I don't think you will have a problem having your residence in your old passport, this happened to me, have to travel always with both passports.
please keep us updated, about what answer they give you after the letter you just sent.
and CONGRATULATIONS!! [/b]

[Morpheo]

Ohh My,

First congratulation, sad to know u got the same situation as mine, but at least it is something

I am due to apply for my PR on May.

but this time I won't make the same mistake of sending my passport, instead, I will be sending a copy and ask them to let me know when is needed to attach the sticker.

However, we got another dilema: The need of the new biometric ID card .

Well, I wil keep everyone updated about my new mini adventure with the HO.

to be continued ...

[walesky28]

It is advisable to travel with both. You can travel with your old passport attached (mine are stapled) to your new passport. If your new passport is biometric, you're fine as long as you attach the cover page and not the page your personal details are on.

Any Visa in your old passport that is still valid carries on to your new passport. I have valid visas in my old passport and have not encountered problems even when my new one was blank (Visaless) but attached to the old one.

Hope this helps.

Morpheo's post about the (new) requirement for an ID card before PR (if i read that correctly) is a bit frustrating though. These guys seem to be moving the goalposts all the time!

[thsths]

However, we got another dilema: The need of the new biometric ID card .

Are they really asking for that? I would be very surprised if they do, because the ID card is not really compatible with EU law. I thought so far the UKBA was aware of that, and they only issue ID cards to non-EEA applicants under UK law. But maybe they have changed that.

And of course the problem is not actually the card, but the database (national identity register) that is behind it. The card is so insignificant that the UK does not even have readers for it: http://www.techradar.com/news/world-of- ... ers-525668

[Swan]

my fiance is in the same dilemma you were in (divorced after 4 years), the difference is that we were adviced to inform the HO only with a letter and copies of documents to show them he satisfied directive 10(5) of EU law and ask them to confirm his retention of the right of residence (not asking for PR)

the outcome:
after 2 months they sent a letter asking for details of what his ex-wife was doing during the divorce proceedings, we replied saying we are unable to obtain proofs and details from her, she is simply unwilling to help. (the EU directive doesn't ask for that as long as he was working)
2 months later they reply with a decision to revoke his residence with no explanation! no we are in the process of appealing against the unexplained decision of the HO


you were adviced to apply using EEA4 (you need proofs for 5 years) and may be they weren't satisfied with the period of time you were married? so they thought they could keep you a dependent for longer...doesn't make sense!
I really think these bunch are illetrates who don't have a grain of sense and logic ...

hope you manage to sort out things, at least you are not under the threat to be removed !

will keep my post up-to-date with any developments

[thsths]

my fiance is in the same dilemma you were in (divorced after 4 years), the difference is that we were adviced to inform the HO only with a letter and copies of documents to show them he satisfied directive 10(5) of EU law and ask them to confirm his retention of the right of residence (not asking for PR)

the outcome:
after 2 months they sent a letter asking for details of what his ex-wife was doing during the divorce proceedings

That is interesting, because it is probably a misunderstanding. The law says that you have a right of residence until the divorce is final. So it may seem that the whereabouts of the EEA citizen during the divorce proceedings matter.

However, that is not the case. The law says that retention of the right of residence requires 3 years marriage before the divorce is *initiated*. So retaining the right of residence can happen before the divorce is final!

(On a side note, any other arrangement would not make the least amount of sense. If the EEA citizen could affect the right of residence during the divorce, that would just create an opportunity for abuse.)

So yes, this probably needs to be discussed in an appeal. I wonder whether the UKBA will actually defend the case, or whether they will just ignore it.

[Swan]

my fiance is in the same dilemma you were in (divorced after 4 years), the difference is that we were adviced to inform the HO only with a letter and copies of documents to show them he satisfied directive 10(5) of EU law and ask them to confirm his retention of the right of residence (not asking for PR)

the outcome:
after 2 months they sent a letter asking for details of what his ex-wife was doing during the divorce proceedings

That is interesting, because it is probably a misunderstanding. The law says that you have a right of residence until the divorce is final. So it may seem that the whereabouts of the EEA citizen during the divorce proceedings matter.

However, that is not the case. The law says that retention of the right of residence requires 3 years marriage before the divorce is *initiated*. So retaining the right of residence can happen before the divorce is final!

(On a side note, any other arrangement would not make the least amount of sense. If the EEA citizen could affect the right of residence during the divorce, that would just create an opportunity for abuse.)

So yes, this probably needs to be discussed in an appeal. I wonder whether the UKBA will actually defend the case, or whether they will just ignore it.

I am a little confused here, according to our lawyer and to the paragraph bellow, you retain the right of residence if the marriage has terminated (i.e=divorce) after 3 years at least

I refer to the diretcive bellow, what is your interpretation?


The first part of this paragraph (not the bold section ) is probably what you were talking about
the bold section is the one we used to suuport our appeal and case

5) The continued right of residence of non-EEA nationals
There are various ways in which a non-EEA national may retain a right of residence.

5.1 Divorce or annulment of marriage / dissolution of civil partnership
A non-EEA national who is the spouse / civil partner of an EEA national does not
cease to be a family member in the event of marital breakdown / separation as long as
the EEA national continues to exercise Treaty rights in the UK.
The non-EEA national continues to have a right of residence until such time as a
divorce is finalised, (Decree Absolute obtained) / the civil partnership is dissolved.
However, a non-EEA national spouse / civil partner will lose their right of residence if the
EEA national leaves the UK, unless the non-EEA qualifies for a retention right of
residence as detailed in the following section.

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.

[Swan]

delete

[isceon]

hi everybody
I am going to scream
my PR as a non EEA Ex family member who retains right of residence following divorce has been refused with no right of appeal after 13 months of wait


2000 married EEA member
2001 issued 5 years residence card
2005 petitioned divorce
2006 decree nisi and decree absolute granted
2007 applied EEA4 (retention of residence following divorce )with all required docs
8 months later HO request spouses EU passport and proof of employment at time of divorce What is going on?
Ex would never hand her passport or anything.
I worked and paid taxes for the last 8 years my ex-spouse as well until we divorced .

I managed to get a letter of employement from my ex but not her passport impossible.
I notified the HO about it and told them that my ex would not hand her passport after all we are divorced.
6 month later today (13 month in total) I received the refusal with no right of appeal on the ground that I have not suplied ID of the EEA national as required.
They considered my application as an Non EEA family member of an EEA and not of a non EEA who is retaining right following divorce.
I cannot believe how incompetent my caseworker is.
I sent the EEA4 form without filling section 3 relating to the EEA family member(as I am not anymore one),I joined a cover letter explaining that I was divorced and fulfill all the conditions for the retention of residence following divorce (included decree absolute 2006) I suplied proof that she was working at the time of divorce.I included a print of the 2006 EEA regulation(article 10 retention of residence following divorce)
After all those detailled explanations my caseworker managed to consider my application as a family member of an EEA under article 15 of the EEA 2006.
I really don't get it.I have been married for 6 years but I divorced why are they doing this to me?
What should I do?contact solvit?try a JR?reapply and wait 13 more month?

PS they had all the required docs (my 6 p60,my last pay slips,divorce certificate decree absolute proof of my ex's employment at the time of divorce.)
The funny thing is that they asked me about that last point for the period of decree nisi to decree absolute with the exact dates wich tells me they read the divorce

[Swan]

hi everybody
I am going to scream
my PR as a non EEA Ex family member who retains right of residence following divorce has been refused with no right of appeal after 13 months of wait


2000 married EEA member
2001 issued 5 years residence card
2005 petitioned divorce
2006 decree nisi and decree absolute granted
2007 applied EEA4 (retention of residence following divorce )with all required docs
8 months later HO request spouses EU passport and proof of employment at time of divorce What is going on?
Ex would never hand her passport or anything.
I worked and paid taxes for the last 8 years my ex-spouse as well until we divorced .

I managed to get a letter of employement from my ex but not her passport impossible.
I notified the HO about it and told them that my ex would not hand her passport after all we are divorced.
6 month later today (13 month in total) I received the refusal with no right of appeal on the ground that I have not suplied ID of the EEA national as required.
They considered my application as an Non EEA family member of an EEA and not of a non EEA who is retaining right following divorce.
I cannot believe how incompetent my caseworker is.
I sent the EEA4 form without filling section 3 relating to the EEA family member(as I am not anymore one),I joined a cover letter explaining that I was divorced and fulfill all the conditions for the retention of residence following divorce (included decree absolute 2006) I suplied proof that she was working at the time of divorce.I included a print of the 2006 EEA regulation(article 10 retention of residence following divorce)
After all those detailled explanations my caseworker managed to consider my application as a family member of an EEA under article 15 of the EEA 2006.
I really don't get it.I have been married for 6 years but I divorced why are they doing this to me?
What should I do?contact solvit?try a JR?reapply and wait 13 more month?

PS they had all the required docs (my 6 p60,my last pay slips,divorce certificate decree absolute proof of my ex's employment at the time of divorce.)
The funny thing is that they asked me about that last point for the period of decree nisi to decree absolute with the exact dates wich tells me they read the divorce

sorry to hear that, i know exactly what you feel, they are so wierd about this retention of residence and I don't think they understand it themselves!
the rules say something and they do something else and invent requirements that are not justified ...our lawyer was also surprised at their requests ...
get a good lawyer..don't give up.. wish you all teh luck and keep us informed
what is solvit/ JR that you mentioned by the way ?

[juicybiscuit]

That's awful news Isceon.

If it's just a matter of them not having ID of the ex it's ridiculous. They obviously had that ID to grant an initial residence card!

Sounds like they've got confused somewhere along the line (wouldn't surprise me).

I would get a good solicitor.

I think the only good thing is that they haven't revoked your current visa meaning it should still be valid.

Good luck. Keep us posted.

p.s. maybe it's worth you starting a new thread with your particular circumstances seeing as they've now taken a different turn.

[thsths]

I notified the HO about it and told them that my ex would not hand her passport after all we are divorced.
6 month later today (13 month in total) I received the refusal with no right of appeal on the ground that I have not suplied ID of the EEA national as required.

I am sorry to hear that - and I fail to see why they would not give you a right to appeal. It seems the only formal option is judicial review - do you know what kind of restrictions you have for that (time limit)? Otherwise I would try an informal option first - SOLVIT or you MP. And you can always ask for reconsideration, although it seems that the UKBA is determined to take a nearly impossible stance on this.

And you should certainly send a complaint to the European commission. Do not expect a fast response, but it may still be faster than the JR.

[isceon]

Thanks all for the responses .I will never give up on my rights and will fight to the end.It is not an incompetent caseworker who is gonna break me no way.
Solvit has been contacted yesterday,I have instructed my sollicittor to seek a JR.I am also filing a complaint to the European commission.
I have nothing to lose. I know that I am right and they are wrong.
If the HO cannot expect a victim of domestic violence to provide the passport or anything else of her agressor(the EEA spouse) why Would they expect a divorced non EEA (from an ex EEA)to do so?where is the logic?
The liverpool caseworkers have been very poorly trained and I am one of their victims.
Most of the members of this forum have a better knowledge of EU directive 38/2004 (even its transposition in EEA 2006 regulations wich I think is not really a good one) than them.
Anyway I will keep you updated.

[Morpheo]

It really sounds crazy.

I am puzzled to hear that they have requested your EX spouse ID or Passport.
The law is very clear however Form EEA4 is misleading and not adapted to people retaining the right of residence.

I have one question, have you provided evidence that she was working and living in the UK at the time when the divorce become final (Decree absolute)?

please keep us updated

I got Married on May 2004 so my fun story will start in 3 months

M

[isceon]

Hello Morpheo
as you suggested to me some time ago I approached my ex and it was very hard I managed to get an employment letter but the passport was a no go area and I undestand why .The Ho sent me the refusal letter 6 month after I forwarded further doc without the passport.Why would my EX be obliged to stay for that long without passport for me the most hated person on this planet for (her)?
I think you won't have a problem for ur PR because u already had recognition of ur retention right of residence.
In my case they just ignored the fact that I was divorced and refused my PR as a family member of an EEA who has lived in the uk for 5 years but who did not present the EEA passport as requested .It is true that I have been married more than 6 years but I divorced and that point should be primordial not secondary.
Anyway we will see what the judge had to say and may be my case will be a lesson for the ho not to request such docs to divorced .
Just imagine a victim of domestic violence (they are protected by directive 2004 and retain their right of residence in certain conditions) will they be asked to provide their agressor's passport or even proof of employment ?I don't think so.Why should it be different for divorced?
Now I really don't know if it was just a mistake from the caseworker or a policy from HO disregarding directive 2004 .

[juicybiscuit]

Please do keep us updated with things.

It really is a very complicated system and the caseworkers seem to not have any room for using their own initiative. It's almost like they have a flowchart and have to follow it no matter what! Crazy.

I can only guess that your case and application for PR after you had divorced is so unusual that they simply did not know what to do. I hope that I won't have trouble when applying for PR but I suspect that I will despite the fact I've retained my existing rights. I know I shouldn't but the fact there aren't any guidelines for situations like mine means I will.

Could somebody actually confirm that a non-eea family member can apply for PR from 5 years FROM THE DATE OF MARRIAGE as opposed to being able to apply from the date of their original RC?

Let's face it - it's going to be an uphill struggle trying to apply for PR after livign here 5 years and going through a divorce. When I do I will write a hugely detailed letter explaining my situation and try and hold the HO's hand through the whole process (which seems needed!).

[kapil_24uk]

Please do keep us updated with things.

It really is a very complicated system and the caseworkers seem to not have any room for using their own initiative. It's almost like they have a flowchart and have to follow it no matter what! Crazy.

I can only guess that your case and application for PR after you had divorced is so unusual that they simply did not know what to do. I hope that I won't have trouble when applying for PR but I suspect that I will despite the fact I've retained my existing rights. I know I shouldn't but the fact there aren't any guidelines for situations like mine means I will.

Could somebody actually confirm that a non-eea family member can apply for PR from 5 years FROM THE DATE OF MARRIAGE as opposed to being able to apply from the date of their original RC?

Let's face it - it's going to be an uphill struggle trying to apply for PR after livign here 5 years and going through a divorce. When I do I will write a hugely detailed letter explaining my situation and try and hold the HO's hand through the whole process (which seems needed!).

hi
thanx for posting ur experience so far i would likeu to read my thread"non eea divorcing eea spouse and applying PR" please advice me sumthing
thanx
kapil

[juicybiscuit]

Looks all good. Finally.

I complained about the endorsement that was put in my passport to which they replied was indeed the wrong one.

I then returned my passport with a covering letter which stated that perhaps I was due PR due to my marriage being in 2003. My solicitor mailed me this morning to say the passport had returned with a Leave to Remain endorsement that will expire 2019 - so ten years.

Is that PR?

Looks all good nonetheless - finally it looks like this is all over!

[bebe2]

YES, YES, YES that is pr. you can apply foy british after i1 year.
did you eventually give thenm your ex hubbies passport or id card.

did they really admit it was an error?

[thsths]

I then returned my passport with a covering letter which stated that perhaps I was due PR due to my marriage being in 2003. My solicitor mailed me this morning to say the passport had returned with a Leave to Remain endorsement that will expire 2019 - so ten years.

Is that PR?

It would seem so, although it should not be called Leave to Remain, because that is a term from UK law and not applicable here.

[Mary1]

Congratulations Juicy B

Looks like your all set now. Out of interest did you write or email. I havent heard from them since sending my letter. Do give some details if you can please.

Congratulations again.

Mary

[shandave2001]

thsths and others

One way to retain residence of non-EU married with an EU national is: their marriage must subsist at least 3 years before divirce is initiated, further, couple must have lived at least one year in the UK from the above mentioned total 3 years.

If post marriage, the couple lived one year together in the UK and then EU national moved to his own country, making his PR there, but there is no initiation of divorce before further 2 years have passed. Is non-EU entitled to retain her residence right in the UK or to apply for PR after 5 years post marriage?

In other words, is it must the couple have resided together for 3 years?

My second question is: there is lot in this forum about non-EU 5 years EU familiy permit holder having problems when traveling WITHOUT their EU spouses in EU countries. What about if non-EU 5 yaers EU family permit holder in UK needs to travel non-EU country? Does she needs to take her EU national husband or marriage certficate with her? On return, should she expect questions or even proof from the UK immigration authorites whether her marriage to an EU national still subsist?

[thsths]

If post marriage, the couple lived one year together in the UK and then EU national moved to his own country, making his PR there, but there is no initiation of divorce before further 2 years have passed. Is non-EU entitled to retain her residence right in the UK or to apply for PR after 5 years post marriage?

No, I don't think so. If the EEA national leave the UK, treaty rights are no longer exercised, and the partner therefore loses the right of residence.

In other words, is it must the couple have resided together for 3 years?

That is a different question. I think there may be corner cases, especially if the couple is not living together (which is fine according to the ECJ).

On return, should she expect questions or even proof from the UK immigration authorites whether her marriage to an EU national still subsist?

That is possible. As I said, one condition is that the EEA national is still resident in the UK (although it may be ok if he/she is temporarily absent).

[Mary1]

Hi shandave2001

I can answer question 1 and will leave for others to help on 2.

If post marriage, the couple lived one year together in the UK and then EU national moved to his own country, making his PR there, but there is no initiation of divorce before further 2 years have passed. Is non-EU entitled to retain her residence right in the UK or to apply for PR after 5 years post marriage?

If the divorce took place when the eea was exercising treaty rights in the UK, then u can apply for retention of rights.

If the divorce took place after the eea left, then the non eu lost thier right automatically and technically the non eu should have left when the eea permanently left the UK.

During your application and i know this because i applied: you would have to produce evidence of your ex spous exercising treaty rights in the UK during the divorce and when the decree absolute was granted. ie if divorce was granted in March 2009 your ex spouse would have to be excersising reaty rights all the way until that point in the UK.

Depending on the case worker who deals with your application, they may or may not ask you to provide your ex spouses passport. You may have already read http://www.immigrationboards.com/viewto ... a2+divorce[/b][/b]

This is of course my interpretation of the uk immigration rules when applying for retention of rights

Mary

Mary[/b]