EEA -v- UK -v- Divorce

[TheConfusedOne]

Ok, now I am very confused and now also concerned having just seen http://www.ukba.homeoffice.gov.uk/while ... ip-ended1/

History:

Non-EEA married EEA in 2001 with both being resident outside of the EEA at the time (EEA has dual nationality)

Both entered EEA's home country in 2003

Entered both enter UK Sep 2005

Non-EEA receive's 5 year visa Jan 2006

Couple split Jan 2008

Non-EEA starts relationship with UK citizen Jun 2008

Move in together Nov 2008

Divorce papers submitted Jun 2010


Future plans

Decree Nici to be pronounced Aug 2010

Decree Absolute Sep 2010 (all things being equal)

Marriage outside of UK planned Nov 2010 (now concerned over right to leave and reenter the UK)

Continue living in the UK

Current EEA visa expires Jan 2011


Help
According to that page on the BA non-EEA should have left the UK as soon as the relationship was over however but there are lots of posts on this forum about people applying as family via their ex husbands/wives

Guess this leads to two questions:

1) Is non-EEA currently legal?

2) What is the best route forward?

[TheConfusedOne]

OK, guess it is a fairly complex one.....

Can anyone recommend a good immegration solicitor either in central London (City) or South East Greater London?

[jackEM]

Well it is little tricky... but there is a way round i think...
I know little of EU rules and only once if u r in the UK ... so Gurus and moderators may suggest even better....

Only counting your time in the UK.........

Your marriage is recognised in the UK from September-2005 or Jan-2006.....
Suppose Sept...(Bcuz it a grey area for me)

your divorce started in Janurary-2010..... So technically you were still family member....

This make you a family member of EU national for 4yr and 3months....
If you can have document on both names and if you EX is co-operative to give you his/her employment document for those 4 yrs...... i think you can retain you rights...... And then you will be independent


This assessment ignore the fact that you started your relationship with UK citizen in Jan 2008..... If you bring this into it, i dont think you can do anything except leaving and re-enter UK with new spouse as you are planning to marry you new partner....


Regards

[Ben]

What were the activities of the EEA national in the UK from Sep 2005 until now?

[TheConfusedOne]

The EEA national has been working in the UK but they have all been low level jobs (cleaner, dish washer etc) and frequently as a temp.

To the best of my knowledge they have been employed probably 95% of the time with short gaps between temp work but they have never claimed any benefits.

I believe that almost all of the work has been "official" but wouldn't be surprised if there wasnt at least some time spent with "cash in hand" jobs.

I therefore do not know if:

1) if anything should have been done regarding "retaining rights" - at present when crossing UK border and being asked "where is your spouse?" it has been legitimately answered that they are in London but soon the divorce will come through

2) if the 5 years for EEA4 takes effect from the first date of entry or when the visa was issued

3) if a marriage to a UK national would stop the non-EEA from being able to apply as a family member of the EEA person

4) If EEA4 isnt the correct route, if an extension to visa can be done (now as partner of UK national) within the country or if the non-EEA needs to leave and apply from abroad? BA's website gives the example of changing from Student to Partner not effectively a "change of partner"

5) Ulimately, is it more sensible to apply for PR under EEA4 or for a temp visa as partner of UK national and then PR in 2 years time

[Ben]

If the EEA national has been exercising a Treaty right from Sep 2005 until Sep 2010, then PR is acquired by the EEA national and by the non-EEA national spouse in Sept 2010.

Just make sure that the Decree Absolute is not completed before acquisition of PR.

[TheConfusedOne]

Many thanks for the quick response Ben.

Does the EEA have to formally apply for the PR (presumably EEA3) for the non-EEA to be able to or if the EEA is happy continuing as they are can the non-EEA apply for PR (EEA4) independantly?

My understanding was that a divorcee would be entitled to still claim as a family member but you say not to request the decree until after the PR. Is this to increase probability of achieving the PR or an actual legal requirement?

[Ben]

Does the EEA have to formally apply for the PR (presumably EEA3) for the non-EEA to be able to or if the EEA is happy continuing as they are can the non-EEA apply for PR (EEA4) independantly?

The non-EEA national can apply for a permanent residence card using form EEA4 once permanent residence has been acquired. This can be applied for independently from the EEA national.

My understanding was that a divorcee would be entitled to still claim as a family member but you say not to request the decree until after the PR. Is this to increase probability of achieving the PR or an actual legal requirement?

It's just easier for you. Applying for a permanent residence card as the family member of an EEA national who has been resident in the UK in conformity with the EEA regulations for at least five years is more straightforward than applying on the basis of retained right of residence. It's up to you though, but sometimes snakes are better without legs.

[TheConfusedOne]

The non-EEA national can apply for a permanent residence card using form EEA4 once permanent residence has been acquired. This can be applied for independently from the EEA national.

Apologies for my ignorance but this is new to me.

Are you saying the EEA must get PR first by using EEA3 or can the non-EEA get PR after the 5 years even though the EEA has decided not to apply?

[Ben]

the non-EEA get PR after the 5 years even though the EEA has decided not to apply?

^^ that one.

[TheConfusedOne]

Many thanks

[jackEM]

the non-EEA get PR after the 5 years even though the EEA has decided not to apply?

^^ that one.

Yes but u need the ID of your EU spouse for EEA4 application...
Will you be able to get that?

[jackEM]

Hi guys, I have read and re-read all topics here, but I wondered if you would be kind enough to give me an assessment of my situation.

I am a non EEA citizen.

Married EEA Ciztizen - April 04
Residence Permit refused - August 04
Appeal won - April 06
Residence Permit issued - March 07, expiring March 12

We have lived together from 2004 to 2007, but because of me not being able to leave the country my marriage started to suffer and we separated, then got back together, then separated again. We are still married and see each other regularly, but do not live together.

The documents covering the 2004-2006 were submitted to the court and never returned and we don't have any bills or pretty much any proof of living together as we both moved about a lot and all my bills went to the place I rented rather to my wife's address.

Basically the situation is that I now want to apply for PR and I can provide all the documents proving my wife excercising her treaty rights, but we have nothing to prove that we lived together.

I am pretty sure that the EEA4 application will be refused, and I am prepared to go to court. Do you think I have any chances of winning this?

Thank you very much!

From this person story, i think you need to show that your were living together for 5 years as well..... for EEA4 application...
This may not be the main issue, but usually application is supported by these documents.......

[TheConfusedOne]

Yes but u need the ID of your EU spouse for EEA4 application...
Will you be able to get that?

The split was more or less amicable and doubt getting the ID would be a problem - the non-EEA still is "looking after" a lot of the EEA's paperwork and occasionally fills form for them etc (at their request).


The EEA & non-EEA lived together for 7 years but not 5 years in the UK. My limited understanding was the requirement for retained rights is 3 years in total and at least 1 year in the UK.