Retention of rights, very confused..Please help!

[Ale13]

Hey Everybody!

I have been trying to read as much as possible about retention of rights after divorce on forums, I have even been to see a solicitor at the immigration advisory service, but even he was not sure about what to do with my situation so I hope somebody can help me!

Background info:

- July 2003 - Married to Dutch girl in Holland

- September 2003 - came to Britain for her studies, obtained EEA permit until March 2008, I started work in UK

- July 2005 - Back to my home country for her study year abroad

- August 2006 - Back in UK

- January 2008 - Applied for new residence permit (could not apply for permanent residence as spent a year away from UK)

- July 2008 - wife's university course ended

- November 2008 - following break up, wife left UK and started divorce proceedings in Holland

- March 2009 - new residence permit arrived, valid until December 2013

- August 2009 - divorce granted

I worked full time up until January 2009, and I have been working part time since then.

I am currently a full time student, course started January 2009 due to complete HND in July 2011, hope to then go on to 2 years further study at university.

I started a new relationship and have been living with my Scottish girlfriend since July 2008.

Questions:

We were together for more than 3 years, living in UK together for more than 1 year, so that part is fine. I realise that it may be an issue that she was not resident in the UK at the time of divorce proceedings and at the time the divorce was granted.... So how should I deal with this?

- Should I inform the home office of the divorce and apply for retention of rights now?
- Should I wait until July 2011, (after 5 years in UK) and apply for permanent residence?

Or would it be better to deal with this now with my current girlfriend... we want to get married anyway, but we are not sure how this would affect this situation

- Is it possible for me to apply for a new visa with her as my spouse or an unmarried partner visa?
- Would I have to leave the country first to apply for this?
- How would I deal with the home office in this situation, would I inform them of divorce first? Would I inform them while applying for new visa?

Thanks a lot for reading, and I hope that someone can give me some info on what to do!

[Obie]

The problem i see is this, your wife left the UK and essentially ceased from exercising treaty rights at that point, and went to Holland where she filed in for the divorce, which means she is not considered herself a UK residence.

The gap between the time she left the UK and the Decree absolute been issued is so wide, that it will be absolutely impossible to provide proof needed for Regulation 10, which is evidence your EEA national was exercising treaty rights in the UK, in the period leading up to the divorce being finalsed.

You might have to go with the Scotish Lady to your home country and apply for a UK spousal Visa.

[Ale13]

Hi there, Firstly, thanks very much for your help.
Why do you think it would be easier to apply with my current girlfriend from my home country, if I was to go down that route? Its just that we would ideally like to be able to work it out here as it usually takes soo long to process applications, as I have first hand experience with!!
Would it be best to apply for unmarried partner visa or married visa?
Also, would we inform the home office of the divorce at the time of applying for the new visa or straight away?
Do you think that if we stayed in the UK for another year, without informing home office of my divorce, that this would affect any sort of new application with my current girlfriend?
What is the first step that I should take in all of this? I am sorry for that many questions,
Thanks alot!!

[Obie]

You could try and get married here as you were a family member of an EEA national, even though you were unable to retain rights of residence.

But you will not be able to do an in-country application for Spousal visa, you will be expected to apply from your home country.

You can continue to stay as you are, but you have to be warned, that there is a possibility you could be asked if you travel overseas, to show that you EEA family member is still exercising treaty rights in the UK. If you are unable to provide this, you will need to demonstrate you are a family member who retain rights of residence. As you are divorced you will be expected to provide evidence of the later.

Best of luck in you endeavours

[Ale13]

Hi Obie, thanks very much for your help, I realise now that the main option for me is to deal with this with my current girlfriend in Argentina, my problem is I don't know when we can go.

As we both have 2/3 years left of study here in the UK, would it actually be an option to wait until the end of our studies then arrange everything?

Or do you think that this would that cause problems with the home office when applying for a new spouse visa as they might wonder why I didn't tell them about the divorce earlier?

And might they look unfavourably on the fact that I was "illegal" for that time?

Do you know how long the spouse visa application would take from Argentina?

Sorry for asking so many questions, but also do you know anything about a visa that I read about somewhere, where if you live in the country for 10 years then you can get indefinite leave to remain, which I could maybe apply for in 2013? Although, would the fact that I left the UK for one year affect this?

Thanks alot!!

[Ale13]

Hello forum, it's been a while! I would be very pleased if Obie or any senior member could help me with some questions I have.

Since the last time I wrote on this forum my situation has not changed but after the answers I got via this forum, I believe I don't have the chance to obtain a retention right of residence due to the departure of my ex-wife to her home country before the initial stages of our divorce process, and I still living under the same status, EEU family member which will expire this year.

I haven't looked for advice and I have not got married back in my country, as I was a bit afraid and my priority before anything else has been finishing my studies at university.

I'm finishing at university soon and now we are starting to consider again the possibility of getting married with my fiancee who is a UK citizen, and that way will also help the immigration situation.

We were wondering about the possibility of getting married in the UK since I see the COA was abolished in 2011, also family and friends are here, and after that going back to Argentina and applying for the spouse visa.

We are also considering not coming back to the UK and instead applying directly to emigrate to Australia.

Therefore my questions are:

1. Are we able to get married in the UK seeing as a COA is no longer required, given my situation?

2. Do you know if my current status in the UK, Whould affect my partner's application for a skilled worker visa in Australia, with myself as a spouse on the same visa? In case we are considering the option of going straight to Australia and not returning to the UK.

3. Should I inform the home office of my divorce, or either place any kind of application with HO before we get married and if that is that possible within the UK? I mean send an application to HO after give notice to the register office, just in case.

4. Do you think it is worth applying for the retention of right of residence, knowing in advance that cannot prove my-ex was still here until the divorce was finalised?
Any information you may have will be gratefully received.

Thankyou in advance!

[Ricardo]

Is a shame that your case has taken this shape. To be honest with you, its very unlikely that you can get married to your British Citizen girlfriend in the UK. Although, the Home office has abolished COA, but normal checks will still be done by marriage registry and churches. They will ask for your passport which will show "Family member of EEA national" as your immigration status. If you show them your Decree Absolute, them they may know that you have lost your right of residence. It's a very dangerous root to follow. I believe you need to seek good legal advice.

[Obie]

I dont see any problem in him marrying.

If the registry sees a Residence Card, they will not report to UKBA.

Even if they do, UKBA can only arrest OP if they revoke his residence Card, or has reason to believe he has not retained his right of residence. The burden will be shifted to them.

This is no prejuduice the fact that there is no right attached to the unrevoked Residence Permit.

[Ale13]

Hi Ricardo, thank you very much for your reply.

I understand your point, though I believe the COA was abolished on a ground of Human Rights which gives you right to marry whatever your status is, and for what I have been reading there shouldn't be any impediments to be able to get married and if we don't have a fake relationship, which we are not.

But as you said, there is always a chance that the register office for whatever reasons, let the UKBA know about my self.

Therefore my question here is,
Could I send any kind of application to the HO after give notice to the register, just in case and if anything happened, to stop the UKBA in taken any type of actions against my self.

To be honest with you, I am not even sure if we would apply for any UK visa after getting married, since we are having in mind to move abroad, but we really want to get married in UK for many reasons and nothing to be with immigration matters.

any suggestions anyone please? thanks a lot

[Ale13]

Hi Obie,
thank you so much for your reply!!!

I just was replying to the previous person at the same time. What I was trying to make clear is that we are not a shame marriage of any kind, therefore I don't see the reasons why the register office should report anything to the UKBA.

And as I said, we are going to be probable leaving UK soon, and that is one of the reasons why I never went ahead and try to arrange my situation.

But could you please Obie, answer to my previous question, just to have a peace of mind and be sure that nothing will happen on e.g. the wedding day,
is there any type of Application, that I could start and send to the HO? even though at the end such application will be not successful,or there is no really need to do that when looking at my personal situation, and it is maybe better to keep it quiet.

thanks a lot in advance for your time and your reply!