Assistance - Retaining Rights

[M96]

Background
I got married in the UK in July 2008 to an Irish national after receiving a Certificate of Approval. Before this, we had been living together since 2007.

After this, I applied for residency using EEA 2 and received Five year residency card in November 08. Documents sent to the HO include the marriage certificate, her Irish passport and letter from my landlord that we were cohabiting at the time.

In 2009 we bought a house together which we have continued to live in and we have both always been working. All bills are in my name and come out of my account. Only thing in her name is her bank statement and the only thing in both our name is the mortgage documents.

Request
Unfortunately the relationship is now on its last leg and I would be grateful for some advice regarding my status.

Once the relationship, I am sure that she will not be cooperative and therefore I am trying to get the necessary information and paperwork before the relationship is finished.

Having read some of the threads on the site on retention of right, it seems that I can claim to have retained my right of residence as we have lived together in the UK for over three years and she has exercised her treaty right.

At the moment, I can get her P60 for the past three years and some of her payslips from April 2011 up to now. I am not and will not be able to get anything from her employers.

As I will be unable to get any document from her in the future, would it be advisable that the divorce process be started as soon as the relationship is over?

Moreover, once the relationship is over and received the decree absolute document, what is my next step with the home office? Is it at this time that I complete and send in the EEA 4 form or do I simply send a letter updating them on my divorce along with the decree absolute?

Thank you for your assistance in this matter.

[Nimitta]

Moreover, once the relationship is over and received the decree absolute document, what is my next step with the home office? Is it at this time that I complete and send in the EEA 4 form or do I simply send a letter updating them on my divorce along with the decree absolute?

Thank you for your assistance in this matter.

Not EEA4. EEA4 is for permanent residence, you cannot apply for that because of two reasons.

1. You won't have been living in the UK as a EU family member for 5 years yet.
2. You will not be a EU family member anymore after your divorce.

So this road is closed. You can and should apply for retaining your right of residence after receiving your divorce papers, that is filling in a EEA2 form. It has a special section for retaining right of residence.

[Kitty]

M96, I would add that you cannot apply for confirmation that you have retained a right of residence until your divorce is final.

Until that point you continue to be legitimately in the UK as the family member of an EEA national, albeit that right still depends on your wife exercising treaty rights.

When you start the divorce process, make sure that any lawyer you instruct knows your residence status, and that you will need proof of your ex's activity and UK residence up to the date of the decree absolute. It seems that you already have payslips to date: for a retained right of residence you need evidence that your spouse was exercising treaty rights at the time the divorce became final. You may be able to request the documents you need as part of the divorce process.