Right of retention of residence after divorce

[goodfellow1]

Hi everyone,

I came to the UK in 2004 on family permit visa because I was married to an EEA natinal.
For some reasons I got 1 year residence permit.
Finally I got 5 years residence permit wich is due to expire in 2011.
I was seperated from my wife in 2007.
she petitioned for the divorce and got the decree nisi last month june 2009
I am waiting on the divorce absolute which is due sometimes in september 2009.
I got married to my wife in 1995 outside the Uk and lived together since, we have 2 children 10 and 12 years, who goes to school and lived here in the Uk.
we lived here together in the Uk from 2004 til 2007 .
My Ex stopped working last year 2008 due to severe ilness and still going under treatment .
I am working full time and paying child maitenance and have regular access to the children .
In August 2009 I would have completed 5 years of residency and like to apply for PR .
Can anyone please give me some advise as I am very confused about this matter .

[John]

My Ex stopped working last year 2008 due to severe ilness and still going under treatment .

She is presumably an EEA Citizen. In what way is she currently exercising her EU Treaty Rights in the UK?

And previously? She was working? And now isn't because of her illness?

[goodfellow1]

Hi John,

Indeed she is an EEA national and was working since we relocated here to the UK in 2004, but in 2008 was diagnosed with cancer and had to go for major operation and chemotherapy, I beleive that she is on some kind of incapacity benefit right now , the treatment isn't over yet and I don't think that she is going back to work soon , this might be a permanent incapacity.
I have been very supportive and we still maitain very good relation, she is prepared to give me any proof or documents that the HO might ask for.
Could you please John clarify this situation as Iam very confused and worried about my status .
Thank you kindly.

[Obie]

You have to have married for at least three years including one year in the Host member state for you to qualify for retention of resident.

The UK controversially states that you have to provide evidence of your wife exercising treaty rights up to the time the decree absolute was issued.

Article 17 state that if your wife becomes incapacitated after having worked for a period of two year, she qualifies for permanent resident.

I suspect based on the above facts you will be approved, even though you will not meet the requirement for point 2. I suspect point three's evidence will suffice.

I suspect you will need to fill in the EEA 4 form and provide them with evidence that she has been exercising treaty rights before the illness. Also notify them that you are awaiting the decree absolute, and also evidence of maintenance that you provide for your children ,payslips and bank statement to show you have not been a burden to public fund.

I am confident it will be approved .

Can i also ask who is caring for the minor children at present. Is it purely your wife, or do they spend time with you as well?

There is a clause which allows you to stay in a member state if you are caring for children who are still attending school in a member state.
As you are supporting children who are in school in the UK, you most likely will be allowed to stay on that basis as well

I think all of this will boast your case greatly.

Have a look at the directive below:

http://europa.eu/eur-lex/pri/en/oj/dat/ ... 350048.pdf

I wish you every success for the future.

[goodfellow1]

Hi Obie,

I have a regular access to the children and I am paying maintenance to the CSA on a monthly basis of shared care the children stays with me 2 days a week.
I hope the HO will take in consideration that I am supporting my children who are still minors .
Thank you so much for you valuable advice, God bless.

[Obie]

Hi Obie,

I have a regular access to the children and I am paying maintenance to the CSA on a monthly basis of shared care the children stays with me 2 days a week.
I hope the HO will take in consideration that I am supporting my children who are still minors .
Thank you so much for you valuable advice, God bless.

I think you will be fine. Your case seems solid. Especially the fact your wife is prepared to provide the supporting documents and the CSA maintenance you have in place for your children.

I am nearly 100% certain you are in an excellent position.

Best of luck for the future