Retaining rights for non eea national

shalu25 · Post by **shalu25** » Mon Jan 17, 2011 12:33 pm

Hi All,

I have read alot of posts and found them very useful. I wanted to discuss my personal situation and see if anyone will be able to shed any light.

I got married to my ex husband who is a British National in 2005 in India, he lived in Germany at that time and I moved to Germany in January 2006. We lived in Germany till June 2007 and relocated to UK. I have held a stable job and so has my husbands. I was issued a non eea family member permit in October 2007 which expires in October 2012.
We had problems and seperated in November 2009 and got divorced in December 2010 after a rough year of legal battles. I am not in touch with my ex since I left our marital home in November 2009, except through solicitors.
I received a job offer which I have accepted to start on Jan 24, 2011 and am in my notice period. The future employer is questioning my rights to live. I know I have retained my rights to live. I have made an application requesting urgent issuance of a letter to confirm the same.
I have provided bills including 1 council and a few utility bills of the period we have lived together. I have also sent statements of our joint account and savings account. I have also included the tenancy agreement for our flat in addition to payslips for my current job and the contract with the future employer.
I have requested a speedy return of my passport as I am meant to be flying to India on 10 Feb 2010.
Has anyone had any experiences regarding such a case? I am eligible I am sure as I have lived here more than 2.5 years with my ex and we were married 5 years to the day we got divorced. The only problem is I have no access to information about him and have been unable to provide a statment of proof the EEA National is exercising treaty rights. This is impossible due to my bitter divorce He is a british citizen, should that cause me a problem?

Please advise
1. Will I be successful in my application
2. Will I be obliged with a letter confirming my rights at the earliest in order for me to start my job
3. Will I be able to get my passport back in order for me to make a happy trip to India and back?

Thanks for your replies.

Post by **vinny** » Mon Jan 17, 2011 2:06 pm

See also OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003.

shalu25 · Post by **shalu25** » Mon Jan 17, 2011 2:17 pm

Hi,

Thank you for that. Everything according to that tells me I will succeed.
We have lived together for 2 years and 4 months and been married for 5 years.

I am just worried about the processing time and if the home office will consider my urgent request as I have a job to start in a week's time and also return my passport at the earliest. Any advice?

Thanks

ngueda2009 · Post by **ngueda2009** » Mon Jan 17, 2011 6:25 pm

hi shalu25,
i am a bit concerned about the fact that you do not have a proof of your ex exercising treaty rights.
can you tell us if you have any kids

shalu25 · Post by **shalu25** » Mon Jan 17, 2011 7:58 pm

Hi,

All my papers including passport were hidden from me before I left the marital home. My passport was returned just when I was leaving. I received my docs including birth certificate etc as part of the consent order. Hence, me not having any proof of ex husband working. He is a british citizen and very much in his old job as I have heard from friends. I don't see how any ex will supply one with the docs to make it possible for the ex partner to stay in the country. We divorced on bitter terms and I don't have access to his personal information. I have sent the copy of his passport to the home office.

We don't have any children.

Best Regards

shalu25 · Post by **shalu25** » Tue Jun 14, 2011 5:17 pm

Hi All,

I applied for the retainment on the basis of self. I did not provide any of my ex husbands documents.

4 weeks later , I received my documents back and a sheet with a new stamp on it. It was the same EEA Family permit with a cover letter saying this was on the basis of the marriage and I need to inform if anything changes. I emailed them on the services email and 3 days letter received a new cover letter stating I had retained my rights for residency and this was after considering my divorce. So got a 5 year stamp and all is well

Amarula · Post by **Amarula** » Tue Jun 14, 2011 8:00 pm

Congratulations! So did you just use eea2 form without providing any papers from your ex's side and they still accepted your application and not returned it as incomplete? If so, might be great news for me...

shalu25 · Post by **shalu25** » Wed Jun 15, 2011 9:29 am

Hi,

I provided all documents to prove we lived together for 3 years and our marriage certificate and divorce certificate. Also sent joint bank statements and joint savings account statements. I did have a passport copy of his which I provided. I explained that we have not had any contact and its not been a pleasant divorce. These were in addition to the documents that I lived on my own, was self sufficient and doing well for myself.

My lawyer friend seemed to think they had messed up as they sent me a standard cover letter saying this was issued on the condition that I was married to an EEA national and I received the correct cover letter after my email to them. I had a 2.5 kilo bag of documents that I sent. Alls well that ends well.

Guerro · Post by **Guerro** » Sat Jul 02, 2011 11:09 am

i think in the joint bank statements or his own bank statements there were transactions from his employer, am i corret?
if so, was the date of the last bank statement provided after decree absolute granted?
waiting for your answers

Post by **Directive/2004/38/EC** » Sat Jul 02, 2011 2:04 pm

So do you now have a Permanent Residence Card or just a normal Residence Card?

Post by **Obie** » Sat Jul 02, 2011 3:11 pm

A friend of my is leading a test case going on at the upper tribunal on the unreasonableness of requiring the estranged spouse of EEA NATIONAl to provide proof that up to the time of the divorce the EEA NATIONAL was a qualified. The Upper Tribunal is seeking to make a reference to the ECJ, but the HO wants to concede as they know they will loose and a precedent will be established.

If any one has a case pending at Upper Tribunal or First Tier Tribunal, regarding difficulty of discharging burden of proof. I may be able to offer advice and assistance at no cost.

shalu25 · Post by **shalu25** » Sun Jul 03, 2011 12:21 pm

Hi,

The bank statements were only till the time we lived together which was a year before the absolute decree was issued.

I had a permanent residency card from Oct 07 till October 2012. I got seperated in November of 2009 and then divorced in Dec 2010. In January 2011, I applied for the retaining of my residence card. In March this year, I got the permanent residence for the next 5 years till 2016 with a letter which followed later as mentioned above that said I retain my rights to stay.

I believe I will be able to apply for ILR after my 5 years of stay here although I am yet to confirm that.

Please feel free to ask anything else you want to.

bobobo · Post by **bobobo** » Sun Jul 03, 2011 1:11 pm

You have not received "permanent residence" rather just a Family Permit for the next 5 years. A PR stamp is valid for 10 years...Just to avoid the confusion. You will need to apply for PR after 5 years continuous residence in the UK using the new form EEA4, which is quite elaborate and now includes the retain rights scenario.

shalu25 wrote:Hi,

The bank statements were only till the time we lived together which was a year before the absolute decree was issued.

I had a permanent residency card from Oct 07 till October 2012. I got seperated in November of 2009 and then divorced in Dec 2010. In January 2011, I applied for the retaining of my residence card. In March this year, I got the permanent residence for the next 5 years till 2016 with a letter which followed later as mentioned above that said I retain my rights to stay.

I believe I will be able to apply for ILR after my 5 years of stay here although I am yet to confirm that.

Please feel free to ask anything else you want to.

Post by **Directive/2004/38/EC** » Sun Jul 03, 2011 1:44 pm

shalu25,

What exactly does it say on the vignette that you have received from UKBA?

bobobo wrote:You have not received "permanent residence" rather just a Family Permit for the next 5 years.

Sorry bobobo, that is wrong.

The normal progression for a non-EU family member is as follows...
First they get a Family Permit, which is an initial entry visa that is valid for a maximum of 6 months. Then the family member gets a Residence Card valid for a maximum of 5 years. Then the family member gets a Permanent Residence Card valid for 10 years.

Post by **Directive/2004/38/EC** » Sun Jul 03, 2011 1:57 pm

Obie wrote:A friend of my is leading a test case going on at the upper tribunal on the unreasonableness of requiring the estranged spouse of EEA NATIONAl to provide proof that up to the time of the divorce the EEA NATIONAL was a qualified. The Upper Tribunal is seeking to make a reference to the ECJ, but the HO wants to concede as they know they will loose and a precedent will be established.

Not that this should interfere with your case, but there are some interesting options for divorced spouses to get their information about their EU spouse or to have the UKBA get the information themselves:
http://freemovement.wordpress.com/2011/ ... ean-cases/
and a followup at http://freemovement.wordpress.com/2011/ ... rden-post/

Post by **Obie** » Sun Jul 03, 2011 4:46 pm

This case is centred around the legality of asking a divorced couple to provide evidence that their spouse was working prior to divorce. In most cases it will be couples in a relationship of convenience, that may be able to meet this unreasonable requirement with little ease. The reason is that there is great degree of animosity between divorced couples in a majority of cases.

I am aware of the case you mentioned, but in that case, the burden was not entirely left with the Home Office to discharge. It was said that, the appealant could summon their ex to court. I am sure you will appreciate that in most cases this will be overshadowed with enormous difficulties.

It is not my case by the way.

mcovet · Post by **mcovet** » Sun Jul 03, 2011 5:53 pm

You meant sham marriage and not one of convenience. Confusing terms mate. Though not as many people separate acrimoniously as you suggest. There are amicable divorces around, especially where the favour of providing the docs lies with the party guilty of the marriage breakdown, this help being viewed as some kind of repentance.

You also should side with UKBA here as if it accepted unproven submission by non-eea it would leave the door opem exactly for sham marriages where parties dont even see each other and most of the tine eea is long gone back to eastern europe (sorry for stereotyping).

Therefore it is a sword of two edges

Obie wrote:This case is centred around the legality of asking a divorced couple to provide evidence that their spouse was working prior to divorce. In most cases it will be couples in a relationship of convenience, that may be able to meet this unreasonable requirement with little ease. The reason is that there is great degree of animosity between divorced couples in a majority of cases.

I am aware of the case you mentioned, but in that case, the burden was not entirely left with the Home Office to discharge. It was said that, the appealant could summon their ex to court. I am sure you will appreciate that in most cases this will be overshadowed with enormous difficulties.

It is not my case by the way.

Post by **Directive/2004/38/EC** » Sun Jul 03, 2011 7:11 pm

mcovet wrote:You meant sham marriage and not one of convenience. Confusing terms mate. Though not as many people separate acrimoniously as you suggest. There are amicable divorces around, especially where the favour of providing the docs lies with the party guilty of the marriage breakdown, this help being viewed as some kind of repentance.

There amicable divorces around, and there are also a lot of unamicable ones. For amicable ones, it should be pretty easy to get together the documentation. For unamicable ones, it is very difficult (unless you went copying all your spouse's documentation when you notice the relationship going bad).

The point is that the rights of the family member to stay do not depend on whether it was amicable or not.

mcovet wrote:You also should side with UKBA here as if it accepted unproven submission by non-eea it would leave the door opem exactly for sham marriages where parties dont even see each other and most of the tine eea is long gone back to eastern europe (sorry for stereotyping).

I don't think you are sorry for stereotyping. I think you are thriving on it!

Nobody suggests UKBA should accept "unproven submission [which] would leave the door opem exactly for sham marriages where parties dont even see each other and most of the tine eea is long gone back to eastern europe (sorry for stereotyping)."

Think about it for a minute. UKBA has direct access to the employment records of the EEA citizen. So if they used them, it would prevent exactly the type of fraud you are talking about! If the EU citizen buggered off home, there would be no employment record!

UKBA needs to do the right and effective thing to recognize people's existing rights under the law and to fight fraud, not demand documentation that applicants are often not in a position to provide.

Post by **Obie** » Sun Jul 03, 2011 7:11 pm

I quite frankly don't have any personal issues with people who contract marriage of convenience, or sham marriages, as you would like to describe or distinguish it. I dont judge people. In fact an argument could be constructed in favour of people who engage in such practices, that national law has made things so difficult, with the increasing immigration restrictions, that these people feel they are left with no alternative but to engage in these desperate act.

This obviously does not justifies those actions, but it somehow provides some sorts of explanition.

I strongly believe people who engage in sham marriages which they paid for are more likely to be able to pay to get divorce and pay to get the employment record of the EEA nation through illicit means. Although you also have a strong argument, i dont believe it went far enough to discard mine.

The definition of sham marriage or marriage of convenience are different or synonymous depending on whether you are dealing with community law or national law.

In community law, marriage of convenience is synonymous with sham marriages because it is fraud and no rights can be derived from either of it, from the immigration point of view at least. It is a complete sham as both party knew from the onset that it was not a genuine matrinony. This is the only circumstance in which rights could be withdrawn or curtailed.

Under national rules i believe they are different terms. Marriage of convenience in national rules terms is permissable in community terms. As there may be some love or a sizeable amount of love, but the primary purpose was to gain immigration benefit. This is where the term 'Primary Purpose rule ' which has thankfully being deleted from UK IMMIGRATION RULES came about.. In national rules a visa may be refused in marriage of convenience cases, especially if there are no children, but will most certainly be refused in sham marriage cases.

mcovet · Post by **mcovet** » Sun Jul 03, 2011 7:38 pm

How would ukba obtain confirmation of eea national SEEKING WORK/ being allegedly self employed and not making any money (registering as one doesnt prove much), being self sufficient for periods of time etc. I agree 100% that ukba demand docs which by virtue of the nature of divorces in 80-90% of the time would be impossible to get from the eea national. But one has to see the ukba position in trying to get as mch proof from non-eea before delving into hmrc records etc

If u think about it for a minute, without proof of 5 years' continuous exercise by eea national, non-eea isnt entitled to pr and by retaining rights without submitting proof leaves a door ajar for those struggling to satisfy the 5 year continuity. All they have to do is divorce after 3 and carry on the working for the other 2 as no one would check eligibility of the first 3 years.

The system is messed up and chaotic with requirements from both community law and implementation in practice

bobobo · Post by **bobobo** » Mon Jul 04, 2011 8:54 am

What I meant was that only a Family Permit is valid for 5 years, hence OP
saying she has received PR for 5 years is wrong. I wanted to point out if she gets PR then the sticker would read July 2011- July 2021

I agree with the process you have outlined though, sorry for the confusion.

Directive/2004/38/EC wrote:shalu25,

What exactly does it say on the vignette that you have received from UKBA?

bobobo wrote:You have not received "permanent residence" rather just a Family Permit for the next 5 years.
Sorry bobobo, that is wrong.

The normal progression for a non-EU family member is as follows...
First they get a Family Permit, which is an initial entry visa that is valid for a maximum of 6 months. Then the family member gets a Residence Card valid for a maximum of 5 years. Then the family member gets a Permanent Residence Card valid for 10 years.

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Retaining rights for non eea national

Retaining rights for non eea national