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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.Morpheo wrote:However, we got another dilema: The need of the new biometric ID card .
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.Swan wrote: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
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 leastthsths wrote: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.Swan wrote: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
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.
isceon wrote: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
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.isceon wrote: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.
hijuicybiscuit wrote: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!).
It would seem so, although it should not be called Leave to Remain, because that is a term from UKÂ law and not applicable here.juicybiscuit wrote: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?
No, IÂ 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.shandave2001 wrote: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?
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).In other words, is it must the couple have resided together for 3 years?
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).On return, should she expect questions or even proof from the UK immigration authorites whether her marriage to an EU national still subsist?
If the divorce took place when the eea was exercising treaty rights in the UK, then u can apply for retention of rights.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?