EEA Spouse, Separate/Divorce a none EEA citizen

[DarthRage]

Hi

I've come to this forum to see whether somebody can give me some advise. My wife, who is a British citizen recently left me (a none EEA citizen) and I am now worried about my right to remain in the UK. So far neither of us has filed for divorce, but we will be legally seperated by the end of this month.

The visa I have currently got is the EEA family member permit which i received by the British embassy in Nov 2004. I then got a letter from the home office in Mar 2006 confirming that i would be able to remain in the UK as long as my wife is exercising her EEA Treaty right, with an expiry date of March 2011.

We got married in Nov 2004 so we have been married for approx 4 1/2 years that we spent living together in the UK.
i can easily provide documentation to prove this in form of a joint account, payslips, p60s, bills, council tax ect.

I now need to know what my best chances are to stay in the UK without her.
Do i need to wait until my current visa expires in 2011 or can i apply for PR or something similar now?
Do i have to file for divorce first before i can apply?
Do I need to remain in the house where we lived together so she is still exercising her treaty right?
Also by the time the home office processed my application I have already been staying in the Uk for 1 1/2 years under the EEA Treaty. Will this time be taken into account?

I had so much conflicting information that I'm not sure how to proceed anymore and would be grateful for any advise.

Thank you,

DarthRage

[munisa]

You should have applied for ILR in 2006 when you were legally married and living together. Then you would have naturalised as a British citizen immediately thereafter. By now you would be a British citizen and nothing to worry about. BUT if your marriage has broken down before you get ILR or naturalisation I think the route of obtaining them as a spouse is nil.

[DarthRage]

munisa,

Why I can't applied for it now? I am still married, and still living in the marital house. I don't understand why you said I should have done in 2006 when my situation hasn't officialy changed at the moment. We are only separated physically since 3 weeks now. You said "BUT if your marriage has broken down before you get ILR or naturalisation I think the route of obtaining them as a spouse is nil.", legally it's not the case, unless I need her to apply for ILR.

I don't really understand your post, could you be more specific?

[f2k]

You say you have EEA Permit. were you AND your wife living outside the UK when you applied?

[DarthRage]

f2k,

No. We were already in the UK for one year. Basically, my wife and I were living in Belgium (non married). She is born in Belgium, but she is born as a British citizen because her parents are British. She never lived in Uk until we decided to move in Uk in 2004. I enter UK at 1st with Touristic visa (6 month) because I wasn't sure if I will settle down here. We were planning to get married in Belgium, but the British Embassy in Belgium advised us that it will be more simple that we get married in UK, so they could give me a one year EEA Permit 1st, then advised me to contact HO at then end of that visa to have a 5 years Visa as a member of an EEA citizen. Which I did.

We got married in UK the 6/11/2004. I went back to Belgium to get the one year EEA Permit then enter back the UK the 22/11/2004 with a visa EEA Family Permit Family member. That visa expired 22/11/2005, but following the British Embassy, I did apply for the 5 years one, got a letter from the HO the 10/03/2006 that o have the right to reside in the UK. But they wrote " At present your only claim to remain in the UK is as the family member of a EEA national who residing here. If you wish to stay without your spouse you would have to qualify to remain in the UK on your own right, under the current Immigration Rules."

I hope I have been more clear.

[DarthRage]

Is there anyone who can give me any suggestions please?

I'm really desperate at the moment, I need some advice.

[f2k]

You case is rather puzzling. I think normally you should have applied for spouse of British citizen which would have allowed you to apply for Indefinite leave to remain after 2years and citizenship a year after that, (this is why the earlier poster was asking why you didnt apply for ILR in 2006). You however applied for Family member of EEA Citizen and this has different settling requirements. To apply for permanent residence based on this you would need to look Applying under European Law I believe the form that applies to you is Form EEA4

[thsths]

You however applied for Family member of EEA Citizen and this has different settling requirements. To apply for permanent residence based on this you would need to look Applying under European Law I believe the form that applies to you is Form EEA4

That is true, but I think no harm is done. DarthRage should be able to apply for retention of residence. Unfortunately the UKBA is rather difficult in this area, and they expect that the EEA Citizen is in the UK and working (or exercising treaty rights) right until the divorce is finalised.

Also from a legal perspective, as long as they live under one roof, they are not in separation. So there is nothing to stop him from applying for ILR normally 28 days before 5 years after the marriage.

[DarthRage]

Hi thsths

Thanks for your advise.
See my problem is that at least at the moment it doesn't look like my wife will help me with the application for an ILR or anything else for that matter and as I understand it I will need some of her documents, such as passport or birth certificate and such.

my main worry is that whatever i'm planning to do that my wife has my life in her hands whether i apply for the ILR in the end of the 5 years or apply as family member who has retained the right to stay as for that i would have to get her to sign the divorce papers.

another problem is that she has currently left the country. this is not a problem if she comes back and will work here again, but as she cut the contact completely i can't be sure of that.

I would be grateful for any further advise.

Thanks everybody

DarthRage

[f2k]

You might want to browse the Immigration for Family Members, i think there was a case similar to yours (divorce / separation)

[thsths]

See my problem is that at least at the moment it doesn't look like my wife will help me with the application for an ILR or anything else for that matter and as I understand it I will need some of her documents, such as passport or birth certificate and such.

That is a problem. And I do not want to break up your marriage, but in that case the only option to stay in the long term is a divorce.

another problem is that she has currently left the country.

Now that is a big problem. So she is not living in your house any more? Tricky - certainly not an easy case to solve. You could file for divorce in absence, I believe, but that can take a long time. You would have to argue in court that she was in the UK right until the marriage broke up, and hope that works.