Retention of rights as a Surinder Singh Applicant

[nobodysperfect]

Hi Forum,

I have a couple of questions about ROR as a Surinder Singh applicant and I was wondering if someone can help me understand this. This is actually for a friend of mine who is going through a tough time right now. They have been married for more than three years now and have been living in the UK for more than a year on Surinder Singh basis as his wife is a BC. They have started living separately since last month and now his wife is claiming single parent benefit cause he is unable to support them with all the expneses but helps with some bills,food etc . My questions are below -

Since they have been separated but not divorced (or not planning the divorce yet) would he still be classified as family of EU national? Would the benefit claim affect his RC since she is claiming as a single parent now?

The directive says for ROR they should be married for three years and one year residence in the member state plus the EU national has to be a qualified person. So how would it work in Surinder Singh case? His wife has not been working during the last year however she is still a qualified person in the UK due to the past activities in another member state. So does he qualify for ROR and should he apply for an ROR before the divorce? Or he can still be a family member of EU national and retain the current RC as a family member even upon separation?

Thanks for any help in advance.

[Obie]

On the strict wording of the EEA regulation, he will not qualify, as he is not a family member of a Qualified person, or an EEA national with a Right of Permanent Residence at the time of divorce.

However on the basis of the caselaw, he may have a strong basis for claiming Retention of Residence, but he will be required to provide evidence of his spouse's residence in the UK.

[nobodysperfect]

On the strict wording of the EEA regulation, he will not qualify, as he is not a family member of a Qualified person, or an EEA national with a Right of Permanent Residence at the time of divorce.

Thanks a lot for a quick reply Obie .What exact wording are you referring to? I am reading the ECJ Diatta VS Land of Berlin which states

"2 . FOR THE PURPOSES OF ARTICLE 10 OF REGULATION NO 1612/68 , WHICH PROVIDES FOR THE RIGHT OF A MIGRANT WORKER ' S SPOUSE TO INSTALL HERSELF WITH HIM , THE MARITAL RELATIONSHIP CANNOT BE REGARDED AS DISSOLVED SO LONG AS IT HAS NOT BEEN TERMINATED BY THE COMPETENT AUTHORITY . IT IS NOT DISSOLVED MERELY BECAUSE THE SPOUSES LIVE SEPARATELY , EVEN WHERE THEY INTEND TO DIVORCE AT A LATER DATE ."

The link to ECJ is here -
http://eur-lex.europa.eu/LexUriServ/Lex ... 67:EN:HTML

However on the basis of the caselaw, he may have a strong basis for claiming Retention of Residence, but he will be required to provide evidence of his spouse's residence in the UK.

Which case law would this be based on? He has the evidence of his spouse `s residence in the UK however the concern is "Is the BC spouse a qualified person in the UK without employment/self employment or self sufficiency?

[nobodysperfect]

Any help?