I am an EEA citizen (one of the A8 states) exercising treaty rights in the UK married to a non-EEA female national (one of the West African countries) but going through divorce at the moment (the category of grounds used was 'unreasonable behaviour', in our case being that the two two of us pursuing separate social lives, which isn't compatible with my idea of a marriage). I am looking for advice on how to best proceed (EU route or non-EU route) to satisfy my goal:
GOAL: Make it as simple and as quick as possible for her to end up not needing me for anything immigration-related in the future, ever, regardless of whether we patch it up or complete the divorce.
Here are all facts presented as a timeline:
Past:
Oct 2004 - she came to the UK on visitor visa, left shortly
Nov 2004 - she came back to the UK on visitor visa (the visa sticker says: issued Sept 2004, valid until Mar 2005, multiple entry, 180 day, type C)
Aug 2005 - I came to the UK and immediately started exercising Treaty rights in the UK - as a job seeker
Aug 2005 - we met (i.e. she was already an overstayer before we met)
Oct 2005 - I continued exercising Treaty rights in the UK - as an employee (after spending Aug & Sep 2005 job-hunting through agencies)
Dec 2005 - we moved in together (cohabitation started)
Sep 2006 - we got married (Church of England), after obtaining a license from the church
Feb 2007 - her Residence Card issued (after applying using form EEA2), valid until Feb 2012. They discussed her overstayer status with us at an interview in person but they didn't say anything.
Aug 2010 - I completed 5 years of exercising Treaty rights, i.e. automatically became a permanent resident (I had no absences from the UK, I have been in continuous employment)
Mar 2011 - we filed for divorce
Apr 2011 - she left the UK
Jul 2011 - judge pronounced Decree Nisi
Nov 2011 - my Permanent Residence document was issued (after applying using form EEA3)
Future:
Nov 2011 - she will come back to the UK
Feb 2012 - her Residence Card will expire
Dec 2013 - her passport will expire
I have not applied for Decree Absolute yet and the divorce isn't final until then, so technically, we are still married. We also live in the UK at the same address.
Notice the complication implied by the above timeline is that when she comes back to the UK this month, she will have spent nearly 7 months in total outside of the UK this calendar year and she is planning to go abroad again. (Her prior calendar years' absences are all below 6 months.)
Her this year's absences, however, were all for the purpose of conducting paid work in the media (on a freelance, not employee basis, plus the agency she uses is not a UK company).
I am not sure if these absences can be forgiven for purposes of immigration rules that apply in her case. I understand that her activity abroad does not exactly help show ties to the UK...
Plus, she has to travel out of the UK again for another media gig, so she will likely not come back to the UK until after Christmas again. She is committed to staying the UK in the long run but her media work isn't performed in the UK. And one has to make a living somehow, even if it means absences from the UK. She considers UK her primary residence.
1. What should be the next step for us?
2a. Given we are still technically married, can we just go ahead with an EEA4 permanent residence application for her?
2b. If so, can we claim her time outside of the UK as exempt? (She has evidence of work assignments being done abroad through contracts and media publications. Note: She has never filed tax returns in the UK.)
3. I know that since I've spent more than 1 year in permanent resident status, I am eligible to apply for naturalization to become a British citizen. I am willing to do that, if needed, or if it makes things easier or faster for her. Should I do it? Will that help us achieve my goal or speed anything up?
4. Does the filing for divorce or issuance of the Decree Nisi mean she must take some action ASAP (e.g. report it to UKBA or re-file anything)?
Thanks.
PS: I've got meticulous documentation of all facts, kept originals of everything. (Except for her past travels, which we are planning to reconstruct by writing a SAR to UKBA and to the airlines she used to travel.)
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