Advice for Sepertaed Wife on FLR - Please Help!

[info_need]

Hi,

I would really appreciate whatever advice you can give me, I have
outlined my case below:

Situation: My Wife and I have Seperated we are on a one year FLR that
expires May.

History: I applied for an Ancestery Visa and moved to the UK in May 2002 with my then girlfriend who was on a working Holiday Visa.

We subsequently married on the 09/09/2002 and she got a marriage visa
soon after. As my Ancestry was to expire We applied for further leave to remain (1 year) in April last year. At the same time I renewed my Swiss passport as I relised I was now eligable to work as a Swiss National.

We seperated last year for nothing more than personal reasons and now she is at a point where she is looking at her options for applying for a Visa Independently, I wish to offer her what support I can in her application and found that she is not eligable for the following:

- HSMP: She is 5 points short - even though on her current salary she
would qualify on average BUT out of 12 of the last 15 months she misses
out by £2,000 - 3,000.

- ILR: Even though we are still married she doesn't reside with me -
would prefer not to have to lie on this point.

What options does she have as the seperated wife of an EU citizen married for 4.5 years and residing in the UK since may 2002?

If I applied for ILR with her as my spouse what sort of evidence would be
required to prove she resides with me with my application?
What sort of checks do they undertake?
What sort of penalty could be incurred?

What other options does she have?

I would really appreciate any advice possible!!

Many Thanks

Info_Needed

[John]

In accordance with the new EEA/EU regulations that came into force on 30.04.06 ... which are extended to Swiss Citizens and their family members .... as the marriage has lasted at least 3 years, and at least one year has been spent together in the UK, your wife will be able to obtain Permanent Residence notwithstanding the fact that the two of you are now separated.

She should use form EEA4 at the appropriate time, but as that form has yet to be altered to cope with this circumstance, she might need to enclose a covering letter to explain the facts.

[Docterror]

Your wife cannot apply for ILR. But she can apply for her PR(Permanent Residence) though!

Confused? I thought so. Let me explain. If you are to apply for her ILR through the UK immigration rules, she could be rejected as you dont cohabit/reside together anymore. But if you were to take the EEA route using your Swiss nationality and apply for her PR at 9/9/2007 after having remained in UK for 5 years exercising your treaty rights, all you have to prove is that she was a family member of a Swiss national for 5 years and has lived in the UK during this time. There is no necessity of cohabitation at the time of applying and you could be seperated at the time of applying.

Make sure you have all the evidence of having exercised your treaty rights and of your wife being resident in UK for the entire 5 years since your marriage.

[Docterror]

Hey! Not Fair! John just nicked me to that reply while I was typing!

[info_need]

Wow!! You have to love this site – People actually compete to help you! Thank you both for your prompt responses. I would like to clarify a few points regarding the correct time to apply:

Entered UK 31/05/2002
Married 09/09/2002
FLR Expires 31/05/2007

1. I have been here on an Ancestry Visa (her as working holiday then spouse) and never as an EU Citizen – Would she still be eligible?
2. I believe that Switzerland’s agreement with the EU came into force in 2004– is this an issue?
3. Is it required that we were married for 3 or 5 years at the time of application.
3. How do I/my wife exercise our Treaty Right’s (where can I find more info on this)
4. When will she become eligible to apply?
5. My wife is currently employed and if she waits until the 9/9/07 to apply for her permanent residence then she will be working Illegally for the time from 01/06/2007 – 09/09/2007.

Sorry for all the questions and thank you for all your assistance.

Info_Needed

[Docterror]

Info_need, using your own numbering to answer

1) Yes, she is still eligible.
2) The late enforcement of the Swiss agreements should not be an issue as the EEA/Swiss regulations are also applied retrospectively. Search for some examples right here in this board.
3) The minimum requirement is 3 years. After that whether you are married or not, your wife has the right of residence (irrespective of whether it be retained right of residence or continuing right of residence- as far as I am concerned it is all just technical jargon designed to confuse)
3)(twin) You can find more about it here http://www.ind.homeoffice.gov.uk/docume ... iew=Binary
4) She will be eligible to apply for her PR on the 9/9/07
5) She will not be illegal as you/she will be exercising the treaty rights from between 1/6/07- 9/9/07... although how you can prove that without applying for the Residence Card is beyond me.

Hope that helps

[info_need]

Jabi and John Thank you for all your help. You have saved many a sleepless night.

[info_need_]

HELP!!

As the time has come to make our application I have approached some immigration specialists regarding my wifes EEA4 applictaion.
They have questioned the legality or possibility of my wife making an EEA4 application and have organised a meeting to discuss her options with regards to an ILR? I have approached a couple of European Law specialists to confirm.

Could you please point me towards any official documentation / statutes that confirm the following:

"In accordance with the new EEA/EU regulations that came into force on 30.04.06 ... which are extended to Swiss Citizens and their family members .... as the marriage has lasted at least 3 years, and at least one year has been spent together in the UK, your wife will be able to obtain Permanent Residence notwithstanding the fact that the two of you are now separated. "

It would also be appreciated if you could confirm whether my wife is therefore can currently work legally in the UK even though we have seperated. I will keep this post updated with any information I can.

Many thanks,
Info_need_


__________________

[John]

It would also be appreciated if you could confirm whether my wife is therefore can currently work legally in the UK even though we have seperated.

Yes, she retains all her EU/EEA rights, including the ability to work in the UK.

[info_need]

Thanks for you reply John.

[quote]If the marriage has lasted at least 3 years, and at least one year has been spent together in the UK, my wife will be able to obtain Permanent Residence notwithstanding the fact that the two of us are now separatedâ€

[sakura]

[quote="info_need"]Thanks for you reply John.

[quote]If the marriage has lasted at least 3 years, and at least one year has been spent together in the UK, my wife will be able to obtain Permanent Residence notwithstanding the fact that the two of us are now separatedâ€

[info_need]

Hi Sakura,

Just to clarify I have been a swiss citizen during this entire period. In 2006 I renewed my Swiss Passport as that had lapsed. I think that even though an EEA citizen for the whole period there is a concern that I was resident under British Law and not European Law... Do you have any idea on this?

If not can you recommend the best place for me to get confirmation on this issue?

Many Thanks,
Info_need

[sakura]

Hi Sakura,

Just to clarify I have been a swiss citizen during this entire period. In 2006 I renewed my Swiss Passport as that had lapsed. I think that even though an EEA citizen for the whole period there is a concern that I was resident under British Law and not European Law... Do you have any idea on this?

If not can you recommend the best place for me to get confirmation on this issue?

Many Thanks,
Info_need

AHHHH!! So, I WAS confused... sorry I don't have much info to help in this regard then, but, as you mentioned, you didn't apply for any EEA permits, which might go against you?

[info_need]

Help! Now I am really confused.

Does that now mean she is not legally entitled to work in the UK? Anyone have any idea?

Thanks,
Info_need

[John]

I think we need to go through Regulation 10(5) step-by-step :-

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

So as the marriage has not yet ended the person is still a family member, and thus can live and work in the UK

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

A yes/no situation ..... and the answer is going to be "yes" when the marriage does end

(c) he satisfies the condition in paragraph (6); and

See below.

(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.

It is (i) that is relevant here. Given that there is no reference to immigration status during the three year, or one year period, I think this is merely a yes/no situation .... and the answer here will be "yes"!

Regulation 10(6) reads :-

(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).

This will be true if the person is employed .... a worker!

So the conclusion is ...... the status of the person as a family member of an EEA citizen is only read .... for the purpose of continuing rights ... as at the date of termination of the marriage. And it appears not to matter in determining whether other status has been held at any time during the minimum three year period, or one year period in the UK, in deciding whether there are continuing rights following the end of the marriage.

So info_need, your wife is entitled to work now, as your family member, given that the divorce has not happened, and even after the divorce has happened, she will still have continuing rights.

Therefore no problem whatsoever her working in the UK.

[sakura]

John,

I understand your point, but one thing still eludes me: they did not apply under EEA regulations, and his wife does not have an EEA permit or anything, and has been here on a UK-specific visa...so is there any regulation that allows people to apply under EEA regulations despite not having the EEA permit/taking that specific rule?

Sorry, I did read your post, but didn't seem to find notes related to my question.

[Docterror]

John,

I understand your point, but one thing still eludes me: they did not apply under EEA regulations, and his wife does not have an EEA permit or anything, and has been here on a UK-specific visa...so is there any regulation that allows people to apply under EEA regulations despite not having the EEA permit/taking that specific rule?

Sorry, I did read your post, but didn't seem to find notes related to my question.

The fact that you don't have to be issued with a Residence Document under the EEA rules to avail the PR can be deduced by a careful look at the requirements for the eligibility of PR. All the EU laws says that the person has to do is exercise a treaty right for 5 years and the PR is granted... no question of immigration status.

Does that mean that if an illegal immigrant successfully married an EEA national 5 years ago and the EEA national exercised the treaty rights till now, could he/she apply for the PR inspite of the illegal status? The answer would have to be a 'Yes'! Because, under the EEA Regulations they don't have a reason for rejecting the application!

There are a couple of anecdotal evidence to support this interpretation as well.. some of which might well be in this site.