EEA Family Member - Divorce and Right of Residence

[Boarderlass]

Hi there, I've been trawling through the forum and not found any situation quite like mine and hoping someone can give me some advice.

My partner (Irish) and I (New Zealander) live in the UK and received our EEA residence cards in NOV 2006 at that time we had been been together for 7 years but not married. We were married in JAN 2008 but unfortunately will be getting a divorce. We have not lived together since NOV 2008.

What I want to know is that while I understand under EEA regulation we are still seen as 'married' we have not lived together since about NOV 2008. I am wondering if this situation still makes me eligible for Right of Residence? I understand the rules state that we must be married for three years one of those in the UK. Therefore I meet that criteria but only if you are still considered to be 'married' while living apart i.e separated.

Questions are:
- Am I eligible for Right of Residence?
- Will I need to provide proof of living together - because as a married couple for less than a year, but had a nine year relationship?
- Should I just see out the 5 years (NOV 11) and apply for an EEA4 - our split was amicable so potentially I could wait to be divorced

Hoping you can help!

Thank you.

[giardaella]

I have definitely read somewhere that, as opposed to the Immigration Rules applying to the internal applications (FLR(M), SET(M) etc.) under the EU law, until you are finally divorced (obtain decree absolute) you are still regarded as married, even though living apart.

Thus, if you don't wish to form another partnership and your partner doesn't mind either, don't do anything until the 5 years have passed, living separately is absolutely fine. The reason for this is that, you could, potentially, decide to get together any time up to decree absolute, so still regarded as a couple, and you as a family member of an EEA national.

Hope this helps

Hi there, I've been trawling through the forum and not found any situation quite like mine and hoping someone can give me some advice.

My partner (Irish) and I (New Zealander) live in the UK and received our EEA residence cards in NOV 2006 at that time we had been been together for 7 years but not married. We were married in JAN 2008 but unfortunately will be getting a divorce. We have not lived together since NOV 2008.

What I want to know is that while I understand under EEA regulation we are still seen as 'married' we have not lived together since about NOV 2008. I am wondering if this situation still makes me eligible for Right of Residence? I understand the rules state that we must be married for three years one of those in the UK. Therefore I meet that criteria but only if you are still considered to be 'married' while living apart i.e separated.

Questions are:
- Am I eligible for Right of Residence?
- Will I need to provide proof of living together - because as a married couple for less than a year, but had a nine year relationship?
- Should I just see out the 5 years (NOV 11) and apply for an EEA4 - our split was amicable so potentially I could wait to be divorced

Hoping you can help!

Thank you.

[Hubbitten]

hi sorry this is not reply but a question arising from this situation in which i m also in , what if EEA national leaves UK before this period or decree of divorce.???????

[ngueda2009]

if your partner leave uk before divorce absolute that means you lose your right of residency as she is not exercising her treaty rights

[giardaella]

hi sorry this is not reply but a question arising from this situation in which i m also in , what if EEA national leaves UK before this period or decree of divorce.???????

If the decree absolute is issued before the EEA national has been outside the UK for over 6 months, then it follows that the EEA national would still be exercising her treaty rights if within the 6 month period. The only thing is that exercising treaty rights consists of 2 parts, therefore, whilst:

1) residence is regarded continuous even with absences under 6 months per year;
2) the other requirement, the "working"/"self-sufficient" bit will still need to be satisfied during the absence. So, if the EEA national is unemployed at the time they left, take out a comprehensive sickness insurance in order to allow him to be officially exercising Treaty Rights even during the absence, as technically, EEA national could still have returned and continued to exercise their rights. (this second requirement is quite subtle, caseworkers may disregard it)/

I think you are asking about it in retrospect, therefore, if the EEA national left the country, i.e. was about to stop exercising treaty rights in this way, if your decree absolute was issued within 6 months of them leaving the UK, you are SAFE! If it took longer than that, then it could pose a risk.

Give you an example. Presume the EEA national is in the UK with the non-EEA national. They live here for 3 years and during those years the EEA national has been exercising treaty rights. If he then divorces the Non-EEA, the rights can be retained, subject to satsifactory proof of EEA exercising treaty rights etc.

If, however, the EEA national, WITHOUT divorcing, simply decides to leave the UK, and stays outside the UK for over 6 months, thus breaking the requirement of continuous residence, the non-EEA, who derives his/her rights from the EEA, loses the right to reside in the UK.

Both the Directive 2004/38 (EU Law) and the Regulations 2006 (the statutory element which transposed the Directive 2004/38 into the UK law) only mention specific situations where one can retain their rights. Divorce IS one of those cases, but the EEA national DESERTING non-EEA without the divorce does NOT give rise to the right to retain the residence.

Hope this was clear, ask if you need further clarification.

[Hubbitten]

Hi thank you for your response.

please find below the details of my case:


I am married for six and half yrs and is living in uk for four and half yrs .All this time my spouse has been exercising treaty rights .Currently I am separated from my EEA spouse after domestic voilence incidents.

I am working .

I have a child of four yrs living with me and is in nursery education and is going to start reception in september.(child was in nursery education/government funded education when we separated)

My child is non EEA national born in UK BUT HE IS CHILD OF MY EEA SPOUSE.

I have filed my application for retained right of residence in may 2010.

filed divorce petition in june 2010.



My eea spouse is very clever and has moved to another EEA country(to harm my immigration status and divorce case) but is still employed with UK employer (on SSP with UK employer and is said to be working with some other employer in other eea country.)

My concerns are that as he has left UK (though his pay slips are being generated with his UK employer-SSP)would his leaving UK before the decree absolute would result in refusal of my retained right of residence application??.

My five years residence in UK would be completed in October 2010.

Or if i should withdraw my application and apply again on some other grounds?

PS :my visa is valid until december 2010.

plsssssss help .

My life would be ruined if i had to go back(cultural reasons)

Once again thank you for your help.

[jackEM]

Well if u can get the divorce finalised asap

and somehow get a letter from his employer...

or any payslip or transactions on the bank statement from the employer...
Dated after the divorce is finalised

that will do the job

Do u have any of these things in ur hands?

[Hubbitten]

hi JacjEM,

Thank you for advise but the problem is to get hold of these douments as how and why employer would give me these doc. .

I have my case pending with child support agency who is in contct with his employers but i dont think they would get me any written proof from employer.

Ant other idea from where i can manage to get documents???

I am in catch 22 position.

ANY ADVISE IS WELCOME.

Many thanks

[Hubbitten]

any ideas plzzzzzzz

[larswell]

MSG deleted

[mcovet]

It's 5 years of living "in accordance with the 2006 Regulations" (I think it's Reg 15). So, Jan 2012, provided you can prove that you actually did retain right of residence (i.e. your EEA was living and exercising treaty rights from the time you initiated the divorce until the decree absolute). The evidence could be difficult to obtain if your EEA is non-cooperative.

Also, from Nov 2010, YOU should do what would be classed as exercising treaty rights if it were an EEA national (i.e. work, be self-sufficient + private medical insurance etc.)

You are also right that the UKBA does NOT have a separate form or guidance for those retaining right of residence.

It seems that if you are applying to Retain your rights (confirm that after divorcing you are still eligible to remain in the UK- not compulsory, can go straight for PR application, but would help if did this first) you would use the EEA2 form.

If you then apply for PR (whether you first applied to retain the right of residence or not), you would use EEA4.

I agree that taking into account the fact that so many people apply to retain rights, they COULD have come up with a separate application form to make it easier and avoid case workers issuing the same standard letters to divorced non-EEAs as before the divorce.

Hi! I was wondering if someone could help me with my questions, b4 i ask ill just quickly explain what my situation is ...

married to a europen in jan 2007, divorced in nov 2010 ( 3 years and 10 months)
been living in the uk since jan 2007

So according i believe i can apply for right of resident and have got a lawyer to sort out everything for me

I also believe when they issue the right of residence it'll expire in 5 years from the issue date.

Do I have to wait for this visa to expire for me to apply for permanent residence? Or as I have already been living here for over 4 years I only have to wait until it reaches 5 years to apply for permanent residence?

And if I dont have to wait for my right of residence to expire to apply for a permanent residence, which form should use? There seems to be no information about my situation on the homeoffice website

THANKS A LOT FOR UR HELP GUYS!!!

[larswell]

MSG deleted

[racim]

[quote="larswell"]Hi! I was wondering if someone could help me with my questions, b4 i ask ill just quickly explain what my situation is ...

Code: Select all

married to a europen in jan 2007, divorced in nov 2010 ( 3 years and 10 months)
been living in the uk since jan 2007

Hi
Did you get married in jan 2007 !! Or ur RC !! Can u give us more details pls when was your certificate of marriage been issued and when did u get RC .
Thank u

[larswell]

MSG deleted

[mcovet]

Larswell, what do you do?

You only need health insurance if you are NOT working! If you are, then you do NOT need health insurance. If you feel you will lose your job or want to leave the job, then before you do so, just get the health insurance. Otherwise, no need for it, noone will ask you for it.

http://www.legislation.gov.uk/uksi/2006 ... ion/4/made

Note in particular that under par.4(1)(a) and (b) for workers and self-employed, there is NO mention of the insurance. Whereas for students and self-sufficient persons par.4(1)(c)&(d) (if you were NOT working and were relying on your funds to exercise treaty rights) the comprehensive sickness insurance IS a prerequisite!!!

Hope this helps.

First of all thank you very much for taking the time to reply to my questions! You have been very clear!

The lawyer who is taking care of my case said that I dont need private health Insurance. But everyone here seems to say I should have just in case the HomeOffice requires it!

Would you say getting private health insurance is a must?

Thanks very much again!!!

It's 5 years of living "in accordance with the 2006 Regulations" (I think it's Reg 15). So, Jan 2012, provided you can prove that you actually did retain right of residence (i.e. your EEA was living and exercising treaty rights from the time you initiated the divorce until the decree absolute). The evidence could be difficult to obtain if your EEA is non-cooperative.

Also, from Nov 2010, YOU should do what would be classed as exercising treaty rights if it were an EEA national (i.e. work, be self-sufficient + private medical insurance etc.)

You are also right that the UKBA does NOT have a separate form or guidance for those retaining right of residence.

It seems that if you are applying to Retain your rights (confirm that after divorcing you are still eligible to remain in the UK- not compulsory, can go straight for PR application, but would help if did this first) you would use the EEA2 form.

If you then apply for PR (whether you first applied to retain the right of residence or not), you would use EEA4.

I agree that taking into account the fact that so many people apply to retain rights, they COULD have come up with a separate application form to make it easier and avoid case workers issuing the same standard letters to divorced non-EEAs as before the divorce.

Hi! I was wondering if someone could help me with my questions, b4 i ask ill just quickly explain what my situation is ...

married to a europen in jan 2007, divorced in nov 2010 ( 3 years and 10 months)
been living in the uk since jan 2007

So according i believe i can apply for right of resident and have got a lawyer to sort out everything for me

I also believe when they issue the right of residence it'll expire in 5 years from the issue date.

Do I have to wait for this visa to expire for me to apply for permanent residence? Or as I have already been living here for over 4 years I only have to wait until it reaches 5 years to apply for permanent residence?

And if I dont have to wait for my right of residence to expire to apply for a permanent residence, which form should use? There seems to be no information about my situation on the homeoffice website

THANKS A LOT FOR UR HELP GUYS!!!

[larswell]

GJhhghj vbn

[jackEM]

Morning Everyone.


It says in "European Casework Instructions" 5.4.1 that

Policy is to revoke or to refuse to issue / renew a Residence Card in the event of divorce / dissolution of civil partnership, or when there is evidence that the EEA national has left the United Kingdom, UNLESS the non-EEA qualifies for a retention of a right of residence.

And then it goes on in 5.4.2 as how to retain the right
i.e

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 United Kingdom 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:
34
(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 United Kingdom who is either a worker, self-employed, or is a self-sufficient person.

It seems that Non-EEA National can retain rights in case EEA National Leaves UK, if the conditions 'a' or 'b' can be met.

But i wonder how this will be applicable e.g. in the light of 6months absence rule, i.e if divorce is finalised within the 6months since EEA National left the UK.

Any clarification appreciated.

THANKS ALL IN ADVANCE
PEACE TO ALL

[86ti]

it seems from this that after this condition even if the EEA National has left the Uk, Non-EEA National can retain the right.

Not generally and this becomes clear when you read the other subsections. Children and maybe domestic violence can be a reason. 6 months absence mean for the UKBA temporary absence, i.e. no intentions to leave the UK.

[brummie123]

Hi everyone

I have found this thread and forum to be very useful.

I was wondering if anyone can help with my query.

Our solicitor applied for permanent residence/residence card on the basis that divorce with wife who is EEA national. We lived together in the UK since 2005 until Nov 2009. She left the UK then and returned to her home country. Have been working in UK self-employed operating a business. Basically now the UKBA has refused the application stating that we have failed to provide evidence that the EEA sponsor has exercised Treaty rights in the UK up to the date of the divorce. Divorce is being done abroad and has not been finalised yet.

I am a bit lost on this now and considering appealing the decision.

But I dont know if I have a losing case as are they in effect trying to say that she has only been here from 2005 to 2009 and therefore could not have exercised treaty rights up to date of divorce???

Happy to give more info if anyone can help. Looking to appeal asap so any help is appreciated!!

thanks in advance!

[Obie]

It might be best to firstly open your own thread. Then give us an idea of what documentation you provided in support of your application, how long you have lived in the UK and in what capacity you have resided.

On the basis of what you have said, you have not resided in the UK for 5 years with your EEA Spouse, or have a decree absolute. On what basis therefore did you and your solicitor applied for PR. On what basis do you wish to appeal. Surely, you solicitor should have percieve this eventuality, if you did not provide documentary showing you wife having exercised treaty rights for complete five years.

[brummie123]

Thanks for your help.

I will try and start a new thred.

I have lived in UK since 2005 as a non-eea national spouse of eea national. I had the 5yr permit.

I'm confused as solicitor applied on form eea4 requesting permanent residence or further residence card. What's the difference and was this the right application?

My spouse left in nov 2009, and started divorce proceedings abroad. With the application we submitted the divorce petition but the actual decree absolute has not come through yet. After reading up on this last night, I am beginning to think solicitor should have used form eea2 and applied for residence card on basis of divorce and then I would not need to show that eea spouse exercised her rights in uk for full 5yrs??

[Nimitta]

Our solicitor applied for permanent residence/residence card on the basis that divorce with wife who is EEA national. We lived together in the UK since 2005 until Nov 2009. She left the UK then and returned to her home country.

There is no such thing as permanent residence card or residence card on the basis of divorce. What gives you the right to apply for permanent residence/residence card is your wife's exercising treaty rights and living in the UK. If she lives and works in another country, she is not exercising the Treaty rights in the UK. If she is not, neither are you. In short, a third country national is exercising Treaty rights in a given country only if he/she is in a given country with his/her EU spouse who is exercising Treaty rights.

Let us go from general principles to your case. It does not look good. You cannot apply for permanent residence card because your wife (you are still married) cannot prove she was exercising treaty rights for 5 years. She left, I guess, a few month earlier, right?

In order to retain the right of residence after divorce which means getting a residence card of your own (you would hold status in the UK independently from your wife's exercising Treaty rights and residing in the UK) your wife (again, wife, not you) should exercise her Treaty rights in the UK for one year up until you get the decree absolute is issued. Since she has not lived in the UK for nearly two years and have not exercised the Treaty rights, you won't retain the right of residence in the UK.

Again, the point you seemed to overlook is it does not matter what you are doing in the UK - you can work or do nothing. Your rights in the UK hinge on her exercising Treaty rights in the UK. As soon as she left and do not intend to reside in the UK, you loose any rights you might have.

As I see it, you can stay only if you both reconsider your decision to break you marriage and she comes back to the UK.

[bobobo]

Again, the point you seemed to overlook is it does not matter what you are doing in the UK

I disagree with the statement. There are two vital trigger points here:
1. The EEA Notional should be exercising rights in the UK especially during the initiation to the grant of Decree Absolute.
2. To Retain Rights or for PR the Non EEA national will have to prove that they have been exercising treaty rights as well just like the EEA national would have done.
See Section 6.2 Retained Rights of residence
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[brummie123]

Thanks for your reply.

I'm really confused on this now.

So from what u guys are saying it appears I don't have much of a case. The home office refusal talks about the decree absolute and from some of their guidance notes it seemed that if the divorce has taken place then I would not need to show any documents for my ex wife exercising treaty rights and instead only show that we lived together.

[Nimitta]

[
I disagree with the statement. There are two vital trigger points here:
1. The EEA Notional should be exercising rights in the UK especially during the initiation to the grant of Decree Absolute.
2. To Retain Rights or for PR the Non EEA national will have to prove that they have been exercising treaty rights as well just like the EEA national would have done.
See Section 6.2 Retained Rights of residence
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Thank you very much. I overlooked that one. Of course, since nonEEA national is applying for an independent residence card, he/she has to exercise treaty rights on his own.

About that "The EEA Notional should be exercising rights in the UK especially during the initiation to the grant of Decree Absolute" can you provide me with a reference? As far as I know, any period of time during that year before DA is as special as any other one. One has to exercise the TR during the whole year.