child retaining right of residence after parents divorce

[kroketa]

Hi everyone, this is my first post in this forum and I hope to do it well and as clear as possible.

It have been very interesting to read people's truly epic experiences of battling for their retaintion-of-the-residence right after the divorce.

Every such a case that I have read so far has been about the retention of the right of residence by the spouse or civil partner(who is a non EEA national) of an EEA national. My situation is slightly different in the sense that I am a non-EEA national stepchild of an EEA national. In short, I wanted to ask if someone could tell me whether I would be eligible to retain my right of residence when my parents get divorced.

Now, I will try to explain the situation as clearly as I can.

1) My father (non EEA national) get married to a EEA national in 2004
2)My father has been self-employed since 2005 (no claims of public support).
2) I came to the UK in 2006 and get my first "Family member of an EEA national" residence card in the beginning of 2007 for five years.
3) Since 2007 I am constantly in full time education and next year I am studying a degree course at university.
4)I am 20 at the moment, but will turn 21 in December 2010
5)My parents are just about to begin the divorce process (I don't know how log it will take).

Q1: Can I retain the right of residence before I turn 21?
Q2: Can I retain the right of residence after I turn 21?
Q3: If so, what procedure should I follow after the breakdown of the marriage?(i.e. do I need to send the standard EEA2 form?)
Q4: Can I still apply for the PR in 2012 (by that time I will have lived in the UK for 5 years)
Q: And how about British Citizenship and passport?

I have read the Immigration Regulation 2006 and it looks like I meet both paragraphs 10(3) and 10(5). Either of those makes me eligible for the retention of the right. However, I wanted to find out if that is the case and whether someone has had a similar experience (or event the exact answer to my situation).

I have spoken with the HO representatives and the best answer that I received was "You should write to us and we will get back to you ASAP, as the inquiry is too complex". The suggestion was followed and the letter written couple of weeks ago. Yet, there has been no reply whatsoever.

Your suggestions, comments, or any guidance will be highly appreciated. If there is a similar thread, I will be very grateful if you could post me the link.

[kroketa]

Hi everyone,

This is what I have dug out so far:

European Casework Instructions

CHAPTER 5 - RESIDENCE CARD APPLICATIONS ( p38)

5.4.12
The continued right of residence of children if the EEA national dies or the EEA leaves the United Kingdom.
Regulation 10 (3) of the 2006 Regulations makes provision for the following:
The child of either the EEA national, or the child of the EEA national’s spouse, civil partner, former spouse or former civil partner, will retain a right of residence if:
they were attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person, and they continue in education.

If the child is an EEA national then the child will qualify for the issuing of a Registration Card and not a Residence Card.

5.4.13
Making an application for a Residence Card where a non-EEA child retains a right of residence.
Where a child makes an application to remain in the United Kingdom in accordance with the provisions set out above the following documentation is required:
child’s passport;
evidence that the child was the family member of an EEA national who was exercising Treaty rights in the UK :
- Residence Card or
- birth certificate or evidence of dependency if the child if over 21, EEA national’s P60’s, wage slips, accountant’s letter etc;
• evidence that the child is attending education in the UK e.g. a letter from the child’s school; and
• evidence that the child was being educated in the UK prior to the EEA national leaving the UK or dying; and
• confirmation that the EEA national has left the UK or died.

The full text is avaliable from the UKBA website here: http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/


According to that extract from the Instructions I do qualify, don't I? Has anyone got experience in such a case?

[John]

Every such a case that I have read so far has been about the retention of the right of residence by the spouse or civil partner(who is a non EEA national) of an EEA national. My situation is slightly different in the sense that I am a non-EEA national stepchild of an EEA national. In short, I wanted to ask if someone could tell me whether I would be eligible to retain my right of residence when my parents get divorced.

Whilst your situation is different, the result is actually the same. That is if your father has a retained right of residence, then so do you. Article 13.2 of the EU Directive reads :-

Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where: .....

-: and then goes on to detail the conditions. So clearly if the retention conditions are met for your father, they are also met for you (and siblings (if any)). And the retention conditions do indeed appear to be met.

A link to the Directive? Click here.

[Obie]

I don't think his right of residence is only dependant on that of his father, or his father's ability to qualify for a right of retention of residence.

As a child or stepchild of someone who was a migrant worker, before the migrant worker left the UK, or the relationship ended in a divorce, he has a standalone right, by virtue of Regulation 1612/68 Article 12 to remain in the UK until his studies are completed. This part of 1612/68 was not reppealed by Directive 2004/38EC.

His rights are not dependant on the EEA national either, so long as he can prove, which has already been done in light of the fact that a Residence Card was issued, that he was a child or stepchild of a migrant worker, and he is still undertaking educational courses.

[kroketa]

Every such a case that I have read so far has been about the retention of the right of residence by the spouse or civil partner(who is a non EEA national) of an EEA national. My situation is slightly different in the sense that I am a non-EEA national stepchild of an EEA national. In short, I wanted to ask if someone could tell me whether I would be eligible to retain my right of residence when my parents get divorced.

Whilst your situation is different, the result is actually the same. That is if your father has a retained right of residence, then so do you. Article 13.2 of the EU Directive reads :-

Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where: .....

-: and then goes on to detail the conditions. So clearly if the retention conditions are met for your father, they are also met for you (and siblings (if any)). And the retention conditions do indeed appear to be met.

A link to the Directive? Click here.

Hi John, many thanks for your reinforcing reply!

The directive that you pointed out was new for me, and I read it with pleasure. It seems that the EU think tanks do indeed a good research and elaboration of they legislations.

Although I have got an overall picture of the directive, there are some things that I wanted to ask you to clarify, if you don't mind Some of them might be a bit primitive, but certainly important:

1) Does the 2004 Directive has the same legitimate power as the Immigration Regulations 2006?

2)Provided that the Article 13.2 of the EU Directive reads :

"Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where..."

Does "a union citizen's" from "...the right of residence of a union citizen's family member..." refer to the non-EEA national, or in other words, my father? or it refers the my EEA national stepmother?

3)Is it a good idea for my father to apply for the PR before they initiate the divorce? And if so, what effect (if any) will it have on my rights of residence after the divorce?

4) Although I have read both the nanaaddo80's case and the Morpheo's,
could you please tell me what my next step after their divorce should be? e.g. should I send them; (a) the covering letter, with the photocopies of all relevant documents, explaining the situation immediately after the dissolution of the marriage;(b) covering letter explaining the situation, EEA2 form, original documents - immediately after the divorce; (c) covering letter, EEA4 form, original documents - when my RC is about to expire in 2012?

unfortunately my vocabulary is not rich enough to explain the gratitude that I have for the founders of this forum, people who give advice and people who share their experience with others.

[kroketa]

I don't think his right of residence is only dependant on that of his father, or his father's ability to qualify for a right of retention of residence.

As a child or stepchild of someone who was a migrant worker, before the migrant worker left the UK, or the relationship ended in a divorce, he has a standalone right, by virtue of Regulation 1612/68 Article 12 to remain in the UK until his studies are completed. This part of 1612/68 was not reppealed by Directive 2004/38EC.

His rights are not dependant on the EEA national either, so long as he can prove, which has already been done in light of the fact that a Residence Card was issued, that he was a child or stepchild of a migrant worker, and he is still undertaking educational courses.

Hi Obie, thank you for pointing out the Regulation. Do you know if it still applies to the child over 21? Because I think that it might take a while for the court to issue the decree absolute, due to the fact that the petition has not even been submitted to the court.

Having been issued with the RC in 2007, do you know if I will qualify for the PR after the 5 year period ending in 2012, in spite of the divorce of my parents?(provided that I retain the right of residence)

[John]

As a child or stepchild of someone who was a migrant worker, before the migrant worker left the UK, or the relationship ended in a divorce, he has a standalone right, by virtue of Regulation 1612/68 Article 12 to remain in the UK until his studies are completed. This part of 1612/68 was not reppealed by Directive 2004/38EC.

His rights are not dependant on the EEA national either, so long as he can prove, which has already been done in light of the fact that a Residence Card was issued, that he was a child or stepchild of a migrant worker, and he is still undertaking educational courses.

I agree, another reason why he has a retained right of residence.

The directive that you pointed out was new for me, and I read it with pleasure. It seems that the EU think tanks do indeed a good research and elaboration of they legislations.

The Directive IS their legislation!

[kroketa]

As a child or stepchild of someone who was a migrant worker, before the migrant worker left the UK, or the relationship ended in a divorce, he has a standalone right, by virtue of Regulation 1612/68 Article 12 to remain in the UK until his studies are completed. This part of 1612/68 was not reppealed by Directive 2004/38EC.

His rights are not dependant on the EEA national either, so long as he can prove, which has already been done in light of the fact that a Residence Card was issued, that he was a child or stepchild of a migrant worker, and he is still undertaking educational courses.

I agree, another reason why he has a retained right of residence.

The directive that you pointed out was new for me, and I read it with pleasure. It seems that the EU think tanks do indeed a good research and elaboration of they legislations.

The Directive IS their legislation!

Hi John, many thanks for your replies! Could you please clarify if eventually I would qualify for the PR on the basis that I retain the rights?

[John]

Hasn't that already been said?