Retaining right of residence

Nimitta · Post by **Nimitta** » Mon Jul 23, 2012 10:09 am

A friend of mine lost his wife recently and I am trying to help him with retaining right of residence.

They got married on May 2010 and have been residing in the UK since December 2010, both working. She was diagnosed with a terminal form of cancer and died soon after that on July 5 2012. He has been working since arrival, she had been working until April 2012 when she was hospitalized.

I have two questions, and maybe you can help me answer them. Is there a requirement of 3-year marriage for retaining rights of residence in case of death? Does he have to apply for retaining rights of residence immediately after death certificate has been issued? He is in state of shock and wants to to go to Ukraine to be with his family. Although understandable, I am not sure this would be wise because as far as I understand the law, after his wife died his status is somewhat undetermined.

That is, in case 3-year marriage requirement is lifted for the case of spouse's death, he does has the right to stay in the UK, but his Residence card strictly speaking is not valid anymore, and as soon as he leaves the UK, he might be (I emphasize "might") refused entrance. Am I right?

Post by **Jambo** » Mon Jul 23, 2012 10:20 am

See Regulation 10 (2).

Nimitta · Post by **Nimitta** » Mon Jul 23, 2012 4:49 pm

Jambo wrote:See Regulation 10 (2).

Thank you, Jambo, I read it. However, I thought that 3-year condition could have been mentioned somewhere else.

How about applying for retaining right of residence? Can my friend go to Ukraine for a week or two and then come back and send the application?

Post by **Jambo** » Mon Jul 23, 2012 5:05 pm

The requirement of 3 years marriage is for cases of divorce. Not death of the EEA national.

Under the EEA regulations, he didn't lose his right to reside in the UK because of the death of the EEA national. The HO will just confirm that he has retained his rights. I believe the new RC would still say "Family member of EEA national" so he will be likely still be asked on the whereabouts of his wife in future entries. The only difference would be a letter from the HO confirming he has retained his rights.

He can travel and should be aware that he might be asked on the whereabouts of his wife on his return. If the IO doesn't know the law, he should ask for the Chief Immigration Officer.

Nimitta · Post by **Nimitta** » Mon Jul 23, 2012 8:05 pm

Jambo wrote:He can travel and should be aware that he might be asked on the whereabouts of his wife on his return. If the IO doesn't know the law, he should ask for the Chief Immigration Officer.

Just to be sure I understood it correctly, do you mean he still can travel on his "old" Residence card? He would like to go to Ukraine before applying for retaining right of residence. So, he won't have a HO letter confirming he has retained right of residence.

thsths · Post by **thsths** » Mon Jul 23, 2012 8:20 pm

Nimitta wrote:Just to be sure I understood it correctly, do you mean he still can travel on his "old" Residence card?

Yes, I believe so. There is no process to retain residence, just as there is no process to acquire the right of residence. There is a process to apply for a residence card, but since he already has one, that is not the right process.

I would just write a letter to the UKBA detailing the circumstances, and see what happens. And I would do that rather soon. They do not really keep track of applications or applications anyway, at least in my experience.

Nimitta · Post by **Nimitta** » Tue Jul 24, 2012 8:27 am

thsths wrote:I would just write a letter to the UKBA detailing the circumstances, and see what happens. And I would do that rather soon. They do not really keep track of applications or applications anyway, at least in my experience.

So, if an IO asks him about his wife, he can say that she passed away recently. And if the IO says his RC is not valid anymore and refuse entrance he should call the Chief Immigration Officer. Is that right?

Nimitta · Post by **Nimitta** » Sat Sep 01, 2012 7:13 am

I have one more question, just to be sure I understand everything correctly.

His wife has Permanent Residence card.

As I understand it, PR card holder are not required to show they are exercising Treaty Rights and in this case he is not required to include into his ROR application payslips showing she had been exercising Treaty Rights during one year preceding the time of her death. Is that correct?

He has been working in the UK since his arrival, so no problem with that.

Nimitta · Post by **Nimitta** » Sat Sep 01, 2012 3:06 pm

And another question. In which section of the EEA2 application non-EEA should write information about his (nonEEA) employer?

Guerro · Post by **Guerro** » Sat Sep 01, 2012 6:43 pm

Nimitta wrote:I have one more question, just to be sure I understand everything correctly.

His wife has Permanent Residence card.

As I understand it, PR card holder are not required to show they are exercising Treaty Rights and in this case he is not required to include into his ROR application payslips showing she had been exercising Treaty Rights during one year preceding the time of her death. Is that correct?

He has been working in the UK since his arrival, so no problem with that.

In that case, he just needs to show his wife's PR which means she was a qualified person as long as she wasn't absent from the UK for more than 2 continuous years

Nimitta · Post by **Nimitta** » Sun Sep 02, 2012 2:06 pm

Guerro wrote:In that case, he just needs to show his wife's PR which means she was a qualified person as long as she wasn't absent from the UK for more than 2 continuous years

Thank you very much, Guerro! She lived in the UK continuously after getting her PR. How about the non-EEA exercising the Treaty Rights. He can include P-60, but in which section of the EEA2 application he should write the information about his employer?[/img]

Guerro · Post by **Guerro** » Sun Sep 02, 2012 2:16 pm

If it is not obvious on EEA2, he can send his supporting evidence which is P60s and payslips. Legally, you can apply without EEA2 as long as you present your supporting evidence well

Nimitta · Post by **Nimitta** » Mon Sep 03, 2012 9:59 am

Guerro, thanks a lot for your help!

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Retaining right of residence

Retaining right of residence