Applying for RR of R when EU national is not in the UK WDYT?

[felicia]

Hi there!
I'm a non EU national who was married to an Italian for 7 years. We lived in UK 4 years (from 2001 to 2005 and got married in 2003 which means I was on a student visa fo 2 years), then we moved away to other countries and came back together to UK and live from Jul 2008 to April 2010 and I then got a PR until 2014. (We have lived in different countries due to the nature of my husband's job). Unfortunately after many month deliberating in april 2010 we decided to spend some time apart and in dec 2010 we both ended up deciding to get divorced.
We both had very good jobs and even bought a house together in UK (where I still live in). As we lived here in the previous years we have a lot of friends and we can fairly say that our lives were/are pretty settled here.
My 'catch' is that as soon as we separated (before knowing it was going to be for good as we didn't know how we would feel about it) my husband moved out of UK and since then has lived in 2 other European countries (not part of the EU).
I'm petitioning for divorce and hope to get the 'Absolute decree' in a couple of months. My lawyer said that once I'm finally divorce we can apply for me to retained right of residence, but the fact that my husband is not exercising his rights in the UK, makes my case a 'gray' area and that it will entirely depends of the judge I get...(and we can appeal that if necessary)
I wonder if you know of anyone who's been in a similar situation and if you know the outcomes.... If I’m not wrong I'm currently illegal in the UK without even knowing how did I get myself in this situation :S
I'm scare of travelling as I'm not sure what the IOs will say...
Any advice???

Thanks in advance!

[felicia]

Does anyone have any piece of advice at all? It'll be very much appreciated!

[aleyandra]

I'm pretty sure you are wrong about being illegal in the country - your visa is valid and you are not divorced yet. When you get your decree absolute through you will apply for retention of rights which means you are legal in the country at least whilst your documents are being considered.

Sorry I can't help more as I am not hugely familiar with the EU side of immigration, but good luck, hope things go well for you!

[EU_lawyer]

Am I correct in thinking you already have permanent residence?

[fysicus]

If your lawyer says it's a grey area, I would say it is a very dark grade of grey. Sorry for the bad news.

As I understand you are still (legally) married and your husband left the UK about a year ago to work and live elsewhere. This is far more than the six months temporary absence normally allowed without breaking the continuity of residence, so it seems from November 2010 or so you can no longer claim he is exercising treaty rights in the UK. Your right of residence is derived from him exercising treaty rights so that right also disappeared some months ago.
Your only hope is that UKBA (or an appeal judge) accepts that your marriage in fact already ended in April last year, and allow retention of rights on that basis, but I'm afraid your chances are low.

[toni34]

didyou say you have permant residency?then you r not under immigration control.simple what is left is for you to get ur bc.except it is not pr you have got but rc.

[felicia]

Am I correct in thinking you already have permanent residence?

No sorry, toni34 is right I got a residence card not PR... I've applied for this in 2008 and got it in 2009 until 2014. txs!

[felicia]

If your lawyer says it's a grey area, I would say it is a very dark grade of grey. Sorry for the bad news.

As I understand you are still (legally) married and your husband left the UK about a year ago to work and live elsewhere. This is far more than the six months temporary absence normally allowed without breaking the continuity of residence, so it seems from November 2010 or so you can no longer claim he is exercising treaty rights in the UK. Your right of residence is derived from him exercising treaty rights so that right also disappeared some months ago.
Your only hope is that UKBA (or an appeal judge) accepts that your marriage in fact already ended in April last year, and allow retention of rights on that basis, but I'm afraid your chances are low.

Thanks for this I appreciate your honesty... so does this mean that I'm illegal at the moment then? Can I travel? txs!

[felicia]

didyou say you have permant residency?then you r not under immigration control.simple what is left is for you to get ur bc.except it is not pr you have got but rc.

Thanks! I think you are right I got RC not PR. and what does BC mean? txs!

[fysicus]

Thanks for this I appreciate your honesty... so does this mean that I'm illegal at the moment then? Can I travel? txs!

Strictly speaking I would think, yes, you are illegal right now; unless you can argue successfully that you are entitled to Retention of Rights. However, as UKBA is probably not aware that your husband left the UK, nothing bad is expected to happen on short notice, and as long as your Residence Card is not formally revoked I think you can even travel in and out of the country without problems.
But when you submit a new application, either for Retention of Rights or Permanent Residency, you will have to disclose the status of your husband and I cannot predict what will happen then.

[86ti]

and as long as your Residence Card is not formally revoked I think you can even travel in and out of the country without problems.

Until an immigration officers feels like asking about the husband...

[fysicus]

and as long as your Residence Card is not formally revoked I think you can even travel in and out of the country without problems.

Until an immigration officers feels like asking about the husband...

in which case you can answer with a big smile: I hope he is waiting for me behind that door...
as my wife once did. Of course, on that occasion I was indeed waiting for her at the airport. But the IO didn't ask any further questions.

But now serious again: I admit that felicia's situation is a bit more tricky.

[felicia]

and as long as your Residence Card is not formally revoked I think you can even travel in and out of the country without problems.

Until an immigration officers feels like asking about the husband...

in which case you can answer with a big smile: I hope he is waiting for me behind that door...
as my wife once did. Of course, on that occasion I was indeed waiting for her at the airport. But the IO didn't ask any further questions.

But now serious again: I admit that felicia's situation is a bit more tricky.

Thanks guys! as a matter of fact the last time I travelled (in Jan) the IO gave me a hard time about my husband's whereabouts. So I guess I won't be travelling until I get this situation more sorted... oh well I have to give it a try. Thanks for all your advice and comments!