retention of residence after divorce: APPEAL dismissed,help

[Swan]

Dear all
I am writing to see if anyone has any suggestions for my husbands case, this is a brief summary for those who don't know about my case



-he came to the UK in 2001 on a student visa
-got married in 2004 to an EEA member and was issued a residence card expiring july 2009
-got divorced in august 2008
- informed the HO of his divorce and applied to retain his residence under regulation 10(5)
-got rejected and his residence revoked in januray 2009
-filed for a PAPER appeal to the AIT
-given a deadline by the AIT for submission 30 march
now waiting and no news from the court


-meanwhile we both applied for COA to get married and got them
-we got married in march 2009
- I am now an ILR holder (under 10 years rule)


my questions are:

1-is it better for him to wait for his appeal to go through and may be get PR through the EEA route or should he apply to become my dependent and have to wait another 2 years before he can get ILR?
2-if he does apply on FLR(M), will he need to leave the country or can he do it from within the UK? (he doesn't want to lose his job if he went back home, as we don't know how long it will take to process his visa from home, and we don't want to be separated )
3-if he submits an FLR application, will that interfere with his appeal ?

I am just wondering if there is an easier option, the waiting is really killing us..
any advice will be appreciated ..
thanks a lot

[John]

Are you able to give any information about why the application for PR was rejected?

What I am thinking is that the strength, or otherwise, of his case, to win the appeal, might dictate which is the better option to choose.

[Swan]

Are you able to give any information about why the application for PR was rejected?

What I am thinking is that the strength, or otherwise, of his case, to win the appeal, might dictate which is the better option to choose.

Thanks for the response John, I get your point, he got refused because we couldn't give details of his ex-wife's employment at the time of the divorce (she wasn't cooperating), but he has been working through the whole time and we showed proof of that.

the grounds of appeal included the following:

7. 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.â€

[John]

I shall post in the other topic as regards the appeal, but as I see it, he is legal in this country at the moment, pending the determination of the appeal, and should that appeal fail, until the time for further appealing against that failed appeal has expired.

So I think, at this moment in time, just wait and see how the appeal goes, and of course if the appeal is won, there is no need to make the application on form FLR(M).

But if the appeal is lost, promptly submit the FLR(M) ... which can indeed be done from inside the UK, as he will be "legal" in the UK when the application is made. The submission of the form FLR(M) will further extend the Section 3C protection, and keep him "legal" while that application is considered.

[Swan]

I shall post in the other topic as regards the appeal, but as I see it, he is legal in this country at the moment, pending the determination of the appeal, and should that appeal fail, until the time for further appealing against that failed appeal has expired.

So I think, at this moment in time, just wait and see how the appeal goes, and of course if the appeal is won, there is no need to make the application on form FLR(M).

But if the appeal is lost, promptly submit the FLR(M) ... which can indeed be done from inside the UK, as he will be "legal" in the UK when the application is made. The submission of the form FLR(M) will further extend the Section 3C protection, and keep him "legal" while that application is considered.

Thank you so much for the prompt reply,
if I understand what you are saying is that he will be legal during the right of appeal deadline which means he can apply for FLR(M) from within the UK immediately after receiving the appeal refusal and before the expiry of the deadline
what you say makes sense, we will wait and do as you suggested, thanks again for your time and the valuable advice

Swan

[Swan]

I shall post in the other topic as regards the appeal, but as I see it, he is legal in this country at the moment, pending the determination of the appeal, and should that appeal fail, until the time for further appealing against that failed appeal has expired.

So I think, at this moment in time, just wait and see how the appeal goes, and of course if the appeal is won, there is no need to make the application on form FLR(M).

But if the appeal is lost, promptly submit the FLR(M) ... which can indeed be done from inside the UK, as he will be "legal" in the UK when the application is made. The submission of the form FLR(M) will further extend the Section 3C protection, and keep him "legal" while that application is considered.

Hi Jonh and everyone

this is a sad update on my husband's case

we received the court decision today on my husband's appeal, it was dismissed, this is part of the words of the judge on the determination letter form: "the appelant failed to provide sufficient evidence to show that his former wife was, in the immediate period prior to the dissolution of the mariage, a "qualified" person within the meaning of regulation 6 of the EEA regulations.

What do we do now, we are in a state of shock

1- is he an overstayer now? how long does he have now after receiving the court letter? does he have to leave the uk and apply as my spouse or:
2- can we apply for him to join me on an FLR(M) here from the uk (i am an ILR holder)? and what is the deadline for us to do that?
we don't want to apply from outside the uk, we don't know how long it will take from home and he may lose his job in the NHS here + i don't want to be separated from him..
please help with any advice

thanks
Swan

[John]

You probably will not appreciate me saying this first part, but it is useful clarification for those wanting to make a similar application to the one your husband made .... it is essential that proof is supplied that the ex-spouse is still exercising EU Treaty Rights in the UK when the divorce is finalised.

Right, looking forward. At this moment the Section 3C protection is still in force, but only until the deadline for further appealing against the dismissal. That is just a few days. So at the moment he is still "legal" in the UK.

Accordingly I suggest you spend this long weekend break preparing a form FLR(M), and applying for a spouse visa. Given the background I suggest you don't apply in person at a PEO, but instead apply by post. If I were you I would now be planning to spend a few minutes on Tuesday morning at the Post Office posting the application by Special Delivery.

You can download the form FLR(M) by going to this UKBA webpage.

I think the evidence you enclose with the application should include the letter received this morning, to which you will attach your own letter stating at as the appeal has only just been dismissed, the Section 3C protection is still in force when this application is made. In view of that, and this further application, the Section 3C protection will continue while the application now made is considered .... the letter should go on to say.

Hope it all works out.

[Swan]

You probably will not appreciate me saying this first part, but it is useful clarification for those wanting to make a similar application to the one your husband made .... it is essential that proof is supplied that the ex-spouse is still exercising EU Treaty Rights in the UK when the divorce is finalised.

Right, looking forward. At this moment the Section 3C protection is still in force, but only until the deadline for further appealing against the dismissal. That is just a few days. So at the moment he is still "legal" in the UK.

Accordingly I suggest you spend this long weekend break preparing a form FLR(M), and applying for a spouse visa. Given the background I suggest you don't apply in person at a PEO, but instead apply by post. If I were you I would now be planning to spend a few minutes on Tuesday morning at the Post Office posting the application by Special Delivery.

You can download the form FLR(M) by going to this UKBA webpage.

I think the evidence you enclose with the application should include the letter received this morning, to which you will attach your own letter stating at as the appeal has only just been dismissed, the Section 3C protection is still in force when this application is made. In view of that, and this further application, the Section 3C protection will continue while the application now made is considered .... the letter should go on to say.

Hope it all works out.

Thanks for the speedy and concise reply John, 2 more questions
1- do you mean by few days the 5 days mentioned on the determintaion letter as a deadline for the submission of the reconsideration? or is it 28 days?

2- should we forget completely about his EEA right and not even apply for reconsideration having heard of 2 similar cases where there was no evidence of the spouse exercising treaty rights but the appeal was won/or HO withdrew their decision? especially that it is not his fault if his ex-wife refused to communicate or help by giving evidence

I know the case sounds hopeless, but we just want to be sure we are making the right decision
thanks for your trouble

Swan

[irakro97]

Hello Swan

I am sorry to hear that your Husband had his appeal refused.
please let me inform you that my brother's appeal was refused as well
we went on the ground that the Judge should follow the EU directive and the HO was mis interpreted the directive in its regulation 2006. as the EU directive does not mentioned anything about the EEA member to have been exercising the right at the time of the divorce.
we are in the process of going to a senior Judge for reconsideration.
could you please provide us with details of the two other cases similar were the EEA member did not give his/her documents and still that the cases were won ?

Please thanks for understanding these can be useful in court

irakro

[Swan]

Hello Swan

I am sorry to hear that your Husband had his appeal refused.
please let me inform you that my brother's appeal was refused as well
we went on the ground that the Judge should follow the EU directive and the HO was mis interpreted the directive in its regulation 2006. as the EU directive does not mentioned anything about the EEA member to have been exercising the right at the time of the divorce.
we are in the process of going to a senior Judge for reconsideration.
could you please provide us with details of the two other cases similar were the EEA member did not give his/her documents and still that the cases were won ?

Please thanks for understanding these can be useful in court

irakro

Hello Irakro
thank you for the update and I am sorry about your brother's appeal too

we went for reconsideration and got the reply back almost 3 weeks later , it was not accepted and the higher judges did not find that the appeal judge made an error in law.
My husband is leaving the UK and submitting his spouse application from home this week.
I am sorry but I do not have more details about the other two cases, i know that the barrister of one of them managed to convince the HO to pull out in front of the judge for bad interpretation of the directive, I also know that the guy is still waiting for the HO to confirm his residence, he has been waiting for more than a year now !
Get a good lawyer (i don't think now that ours was that good) and don't give up. My husband gave up because he is tired and thinks it's a waste of time...but it doesn't mean everyone should give up.
Good luck
Swan

[irakro97]

Swan

I have to ask you, you's husband ex-wife, is she living and work in the UK and she just doesn't want to give him the document he needs ?

If that s the case, am sure he can get the documents he needs such as proof of her working here ...

if she is no longer living in Uk the it becomes a different matter

irakro

[matinuk2]

Hi,
well i'm not an expert but according to my understanding and the information i've got from my solicitor, different sites and pages on net and British immigration, nationality and refugee law handbook.
it is my understanding and can be challenged that for the people trying to retain their residency permit after 3 years they have to provide as much evidence to HO as they can, such as all the documents they have provided to HO for their spouse and themselves at the time they've applied for their EEA1 & EEA2.
for example what i did in my case, i have provided a copy of all my ex payslips, employer letter, even her EEA1 approval letter from HO and my EEA2, letter from her solicitor for request of divorce, the divorce absolute from court, even all the emails i had from her, i asking her to provide me a prof that she was working at the time and her respond that she refused to cooperate.
her original NI number letter from jobcenter, and at the end a letter from her solicitor confirming that she was present and living in uk at the time of divorce. all and all i think it's HO job to prove she was not in uk after providing all these documents.
even if it goes to court i think i can argue that i have proven she is in uk or can be done trough her NI number but i can not force her to provide me with documents as she clearly refused to provide me of any documents and i have her email to prove it.
so i think if you can somehow prove to court that you did everything to provide the evidence of ex spouse living in uk and you couldn't give any physical paperwork and show that the spouse is not willing to cooperate then you will have the court on your side.
even if you have to go to higher court or European court of justice.
as some people might have the other ways of getting their residency permit but some people like me don't, and my only chance to live here is to go trough the court of appeal until i get result.

if you like to know more about my situation, i have my own link and my hole story in:

http://www.immigrationboards.com/viewtopic.php?t=38372

[irakro97]

Hi Swan

Have you and your husband given up ?

I hope You did not

let me know please

Thanks

Irakro97