RETAINED RIGHT OF RESIDENCE - EEA2 or EEA4 form???

[james2012]

Hi everyone,

I've been watching this site for 2 years time to time for my stuation, and thinking that a have learnt a lot, but at the last stage I see that I know nothing at all and confused like hell. Thus I need your urgent advise please. My position in short:

I came to UK at November 2006 as student.
Married with my French national wife at January 2008.I got my 5 years residence card at Aug.2008.
She got British nationality at Sept.2009, but I didn't change my visa type.
Sadly I applied for divorce at February 2011.
During the divorce proceedings we tried and it didn't work then she left the house at October 2011.
To make me believe that she is going away she left her job and called tax office saying she is leaving the UK.
(My wife was-is self employed French teacher who was working with language schools, they were giving her the details of students and she was going to different banks,big companies to teach French to bank-company workers. Schools were taking their comissions and sending rest to my wife, and she was preparing invoices to these schools etc, and paying taxes herself to tax office.)

My divorce took so long and solicitor filled a new file at Nowember.
My wife says she started to work part-time in London at her relatives business , and kept giving French lessons privately but she didnt pay any taxes, it was cash in hand as she says because she had very less students then what schools were providing her, but was ok as she didn't share with schools.
We divorced at 25 may 2012 and got the decree absolute, I called her to tell the result and realised that she is still in London.
My solicitor applied for ILR (under the EEA Immigration Regulations2006) at 12 Jun2012 with a EEA4 form and supporting documents.
On the application my solicitor states: “ His wife left the home after a argument around early February 2001 and he has lead distinct and saperate live. It is also known to him that his wife left the UK and now residing in France … Moreover the case of DIATTA( ECJ 267/83) establised that a partner did not cease to be a family member in the event of....”
I got refusal letter from HO saying :

… “ as your application for permanent residence you must demonstrate that you have resided in accordence with the regulations2006 for a continious 5 year period which would mean that your EEA national former spouse contiously exercised Treaty rights up to the end point of divorce and you have been employed, self employed or self sufficient since your divorce. Collectively this evidence must cover a continiously 5 year period to meet the requirement of regulation 15(1)(f). Whilist this department recognises that you have lived with your former EEA family member at least one year and have married for at least three years, you have still failed to provide sufficent evidence that your former spouse was exercising Treaty rights up to the date of the divorce.
… you submitted evidence of her self employment up to april 2010. In a letter from your representatives it states that your former spouse left home in February 2011 and has since been residing in France. Therefore, you have failed to show any evidence of your EEA sponsors employment from April 2010 to the date of your divorce on May 2012. ... Therefore, it has been decided to refuse to issue the confirmation that you seek with the reference to Regulation 15(1)(f) with reference to 10(5) of the Immigration Regulations 2006.”

I went to another solicitor, and he told me that my formal solicitor had used wrong form of EEA4, and had to use EEA2 form to apply retained right of residence, not ILR. He added “don't rush for the deadline of the appeal since you have to make another application”. I had one day left for appeal and in panic I found a friend's solicitor for appeal, he said EEA4 form was ok and EEA2 form is for new married Non-EU nationals and since I divorced it's nonsense to use this form for my application. Finally he filled appeal form and faxed it.
As I told the solicitors, my formel wife called me saying she would like to help me if she can. She goes France after the Olympics this summer and stays there until now. Before that time she was here at her aunts home while working part time and giving French lessons. She said she could ask for letters from her students confirming her existence in London, and she might pay her unpaid taxes too if it could help or even write a letter to HO or come to courtroom if necessary.

Sorry for this looong one, but I had to write all I guess. I need help and your advice at:

-Which form should be used for my application, EEA2 or EEA4??

-In my first application (with EEA4 form) my first solicitor states in a letter that my wife has left the house in February 2011 and since living in France. This was a big misunderstanding I guess because I'd told him she left the house at October 2011 and we have all documents,bills etc on the same house we were living untill this time. But my solicitor separeted all documets I gave him, no of her documents from February 2011 to October 2011 was sent with my application, and vanished in his office. He claims that I may took them back or never gave them at the first place. He clearly thought that this 3 year period is enough and the rest of the documents could go to bin. His great service brought me all this trouble that I must deal now. We can get banks statemens and council tax bills appliying directly to bank and council I guess? Will this be enough to show at least we were in the same house until October 2011? ( Landlord could write a letter too)

-From October 2011 to end of 2012 Summer, she was at her aunts home paying no tax or rent. Do you think that these letters from her students, her letter and late paid tax documents will be enough to provide her existence here? She is British citizen since sept. 2010. Does it make any difference for my case?

-We were together before the marriage for 8 months, I was at her home many times. Do you think that letters from her formal landlors and our common friends confirming our relation will be useful as on the refusal letter it says: “you do not show any evidence that you had relation before the marriage”?

-Now my appeal for the refusal is in process, should I wait until the end of the appeal process, or can I( Should I?) make another application before it with EEA2 form?

I'm realy confused so much and need your advice guys. Thanks a million for your answers. I wish more sunshine and peace for everyone.

[Lucapooka]

Wow, that is a big post! Good luck.

[Jambo]

If your wife got British citizenship in 2009, that would mean she has obtained PR status in 2008 (one year before) and so is not required to exercise treaty rights since.

Do you know if she applied for a Permanent Residence Confirmation in 2008 (using form EEA3)? (maybe when you applied for the Residence Card)? Or did she apply for BC directly (after living in the UK for 6 years)?

[Oke1]

To me I thinks the best form for you is ee4 from they one
Ee2 is meet to uesd for the ppl that just want to apply
For rc is not for the person that have had 5yrs so
To my own knowledge I think the best form to used now
Is EE4 but you must to provide prove of treat for your
EEA citizen until your decrenice issued I think if you
Can produce this with good lawyer u will
Get ur pr and with a Loth of prove that u live together.
Some of this lawyer they did not know nothings
They think ones you married up to three yrs and
Your pertnar give stress you can divource
Because some of them her not immgr lawyer
They just ready forum as me and you read
So before you give job to any lawyer they introduce
To u go acces him ask him some qetion that can let u
Know that he , she know what she talking about go
Of and checked all what they explain to you that is how
You will know good one I which good lock

[james2012]

If your wife got British citizenship in 2009, that would mean she has obtained PR status in 2008 (one year before) and so is not required to exercise treaty rights since.

Do you know if she applied for a Permanent Residence Confirmation in 2008 (using form EEA3)? (maybe when you applied for the Residence Card)? Or did she apply for BC directly (after living in the UK for 6 years)?

Thank you for the post. My ex wife is French national, and since she is EEA National it was said that she doesn't need to apply for Permanent Residence as it is given to EEA national without application after 5 years living in UK. So she applied citizenship directly.

[james2012]

Wow, that is a big post! Good luck.

You are right it's a long post, But I wanted to give all details as short as I can, so we could save many other questions and new answers from me about the details.

[Jambo]

Thank you for the post. My ex wife is French national, and since she is EEA National it was said that she doesn't need to apply for Permanent Residence as it is given to EEA national without application after 5 years living in UK.

So when she applied for naturalisation as BC, she should have provided evidence that she has exercising treaty rights for 5 years. This evidence should be with the Nationality team within the HO. For evidence about exercising treaty rights, the European applications department can check your wife's naturalisation application.

you can only apply for PR after 5 years under the EEA regulations. Assuming you have been working since the decree absolute, then in January 2013, you should be able to secure PR using form EEA4.

[james2012]

Thank you for the post. My ex wife is French national, and since she is EEA National it was said that she doesn't need to apply for Permanent Residence as it is given to EEA national without application after 5 years living in UK.

So when she applied for naturalisation as BC, she should have provided evidence that she has exercising treaty rights for 5 years. This evidence should be with the Nationality team within the HO. For evidence about exercising treaty rights, the European applications department can check your wife's naturalisation application.

you can only apply for PR after 5 years under the EEA regulations. Assuming you have been working since the decree absolute, then in January 2013, you should be able to secure PR using form EEA4.

Thank you Jambo, my question is here should I use EEA2 form now and apply for the Retained Right for Residence?
She left the house in October 2011 and we divorced at 25 May 2012. But after october 2011 She didn't pay taxes etc untill the 2012 summer.
Should my ex wife's student's letters and her letter confirming her life in UK, late paid tax documents be enough to prove her existence in UK until / after divorce?

[james2012]

now i should leave but I'll write after 11.pm again. thank you very much for your posts.

[Obie]

I have replied to your message, i will just reiterate that when your lawyer applied in the summer of this Year, he should have used form EEA 2 instead of form EEA 4, and if you decide to apply today, you will need to use for EEA2. However if you wait till next year january, you will need to use form EEA4.

I believe you should pursue the appeal , and provided it is heard next year, which i believe will be the case, you can fight that the judge should take your current circumstance into consideration. However you need to tidy up the evidence on her treaty rights.

[Jambo]

As January is just a few weeks away, I don't see a point sending EEA2 application. Apply for PR Confirmation using form EEA4 (using the retention of rights option in the form).

You don't need to prove your wife has been exercised treaty rights (as i said, the HO should have that info already). You just need to prove your wife didn't leave the UK from more than 2 years since her PR. if you can provide proof she has been in the UK at least for one day every year since 2009, that's fine.

Have you been working since the divorce (May)? You will need to provide proof of that and proof of residence for the 5 years (2008-2013).

It shouldn't be difficult as the HO have acknowledged at least part of your claims already.

[Obie]

Unfortunately, i beleive the OP will need to prove his wife's activity, even if she has secured PR, for 2 reason, which i will state below. I need to clarify thing, as it seems OP has been getting conflicting informations which has resulted in the refusal of his application and financial cost and stree of an appeal process and maybe a new application.

1. The wife applied for Naturalisation Directly. There is no evidence that she applied for PR prior to being naturalised, the HO may not have the file showing evidence of her treaty rights.

2. The burden of proof is on an applicant to show he or she meet the requirement of the provision he/ she is claiming right under.
In those circumstance, OP will need to show that he qualified under Regulation 10(5)(b) and then show that he meet the Requirement for Qualification under Regulation 15(1)(f)

[Jambo]

Fair enough. I would trust your judgement on this.

As his ex is willing to help, hopefully he will be able to collect the required supporting evidence. His wife can also make a Subject Access Request to obtain her file from the HO.

It seems that it might be easier for the OP to prove his wife has obtained PR couple of years before the divorce than showing she was a qualified person at the time leading to the divorce.

[ravii]

You need to prove that your ex wife was a qualified person during divorce procedings,i.e feb 2011 to may 2012.now big problem is this that you already informed UKBA that your ex wife is residing in France since feb 2011,so very sorry to say that in this situation EEA 2 or EEA 4 both are useless as you are not qualified to retain rights of residence,even if you say that this was your solicitors mistake.UKBA has a strong evidence against you.but if your solicitor give you a written affidavit that this was his fault not applicants fault then court will give you a benefit of doubt.if your solicitor refused you to give you a written affidavit then complian it in the England bar council and give the written proof in the court that your solicitor mis represent you,and did not gave the true facts in UKBA.

[ravii]

-We were together before the marriage for 8 months, I was at her home many times. Do you think that letters from her formal landlors and our common friends confirming our relation will be useful as on the refusal letter it says: “you do not show any evidence that you had relation before the marriage”? As UKBA already issue you a RC in 2008,then this point is baseless.

[Jambo]

You need to prove that your ex wife was a qualified person during divorce procedings,i.e feb 2011 to may 2012.now big problem is this that you already informed UKBA that your ex wife is residing in France since feb 2011,so very sorry to say that in this situation EEA 2 or EEA 4 both are useless as you are not qualified to retain rights of residence,even if you say that this was your solicitors mistake.UKBA has a strong evidence against you.but if your solicitor give you a written affidavit that this was his fault not applicants fault then court will give you a benefit of doubt.if your solicitor refused you to give you a written affidavit then complian it in the England bar council and give the written proof in the court that your solicitor mis represent you,and did not gave the true facts in UKBA.

Ignore this post. Your wife has PR for several years now so she is not required to be a qualified person and can be absent from the UK upto 2 years.

[james2012]

I have replied to your message, i will just reiterate that when your lawyer applied in the summer of this Year, he should have used form EEA 2 instead of form EEA 4, and if you decide to apply today, you will need to use for EEA2. However if you wait till next year january, you will need to use form EEA4.

I believe you should pursue the appeal , and provided it is heard next year, which i believe will be the case, you can fight that the judge should take your current circumstance into consideration. However you need to tidy up the evidence on her treaty rights.

Thank you very much Obie,

As I wrote before my new solicitor has filled my appeal and faxed it already ( claiming EEA4 form is the right one and I can get PR). I don't know on what bases he made the appeal but I had told them my wife was here even after the divorce, until the end of summer 2012. But I have to prepare the documents that she was exercising treaty rights here when the divorce finalised.

As she called the tax office in October 2011 saying she is leaving UK, she didn't pay any tax between October 2011 to August 2012. She was working her relatives place part-time and kept giving French lessons to her students but didn't pay tax at all.

Solicitor says that if she pays her unpaid taxes now, and gets letters from her students confirming her activity in London, then I can show these papers to prove that she was exercising treaty rights. Plus my ex told me that she could come to courtroom or write a letter too if necessary.

The confusing issue here for me is :
Is EEA4 form right one and I can ask for PR now (As my solicitor says yes and ALREADY made my appeal with this idea )

or should I use the EEA2 form now (as another solicitor says) and after when my 5 years marriage period finishes ( including the time after the divorce too) I should apply again for PR with EEA4 form?

Dear Obie , you have already said I should use the EEA2 form now and after January I can use the EEA4 form for PR.

Now my solicitor made the appeal and we still didn't get any letter from HO yet. Solicitor says probably we will learn about the hearing in January and it will be in February.

Again in short:

My marriage was on 25 January 2008, I sent my form at February 2008 to HO, my passport sent back in August 2008 and I was given 5 years residence-untill August 2013.

Question is: Do you think that the 5 years period would be completed on 25'th January 2013 ( including the time after divorce on 25 May 2012 ).

According to HO, when my marriage period would be lasted 5 years, so I can apply for PR using EEA4 form?

There might be 2 potential answers:
a) The 5 years marriage period starts on the date you signed the documents at council: January 2008. So you have right to apply for PR using EEA4 form in January 2013.

b) The 5 years period starts on when your passport issued and sent back to you: August 2008. So you should use EEA2 from now to apply. An in August 2013 you can apply for PR with EEA4 form.

Which one is the right option, or they both wrong?? Or what?

Sorry for asking again and again,, the answer might already given above, but I feel like 40 foxes running with elephants in my head when I think about these issues.

[Jambo]

a) The 5 years marriage period starts on the date you signed the documents at council: January 2008. So you have right to apply for PR using EEA4 form in January 2013.

Assuming "signed the documents at council" means your marriage day.

[james2012]

Thank you Jambo. Yes It's our marriage day, 25 January. The thing is, my solicitor has already filled the appeal and faxed it in the first week of November 2012, and he said that we are using EEA4 form. And he told me that we might get news about the hearing date in January.
As far as I learnt from what is said here, I could apply with EEA4 after my marriage day of 25 January, when 5 year period is completed.

Do you think that it would be problem that we used this EEa4 form before the 25 January, even if the hearing would possibly be after 25 January??

[james2012]

You need to prove that your ex wife was a qualified person during divorce procedings,i.e feb 2011 to may 2012.now big problem is this that you already informed UKBA that your ex wife is residing in France since feb 2011,so very sorry to say that in this situation EEA 2 or EEA 4 both are useless as you are not qualified to retain rights of residence,even if you say that this was your solicitors mistake.UKBA has a strong evidence against you.but if your solicitor give you a written affidavit that this was his fault not applicants fault then court will give you a benefit of doubt.if your solicitor refused you to give you a written affidavit then complian it in the England bar council and give the written proof in the court that your solicitor mis represent you,and did not gave the true facts in UKBA.

Ignore this post. Your wife has PR for several years now so she is not required to be a qualified person and can be absent from the UK upto 2 years.

This mistake of the solicitor put me in very bad position I know. I never told him that she left the house at February 2011. It was October 2011 as I said him. And stating her leaving the UK is just a great scenario ( I should say lie ) as I told him before the application that I met her to give decree absolute. But he puts there as she left the country for long time,, he even didn't bother when he was filling the application form, but stupidly I had signed the empty form before as he said it'll save time for us.

About my wife's PR,, She got British citizenship at 2009.

And I'm not sure if my formal solicitor will write me an affidavit about his mistake. He blamed his assistant, who was-is having a serious sickness and became paralysed after it. After they sent my application I had sent an email to his assistant about my concerns that they might used the wrong form etc. Maybe this could be a proof if I need one for my case?? Or Bar Council??

[Jambo]

Thank you Jambo. Yes It's our marriage day, 25 January. The thing is, my solicitor has already filled the appeal and faxed it in the first week of November 2012, and he said that we are using EEA4 form. And he told me that we might get news about the hearing date in January.
As far as I learnt from what is said here, I could apply with EEA4 after my marriage day of 25 January, when 5 year period is completed.

Do you think that it would be problem that we used this EEa4 form before the 25 January, even if the hearing would possibly be after 25 January??

Under EEA regulations, there is no requirement to apply using a specific form. The HO can't refuse an application because a wrong form was used so I wouldn't worry about the form but on getting the evidence to present your case.

[Jambo]

You need to prove that your ex wife was a qualified person during divorce procedings,i.e feb 2011 to may 2012.now big problem is this that you already informed UKBA that your ex wife is residing in France since feb 2011,so very sorry to say that in this situation EEA 2 or EEA 4 both are useless as you are not qualified to retain rights of residence,even if you say that this was your solicitors mistake.UKBA has a strong evidence against you.but if your solicitor give you a written affidavit that this was his fault not applicants fault then court will give you a benefit of doubt.if your solicitor refused you to give you a written affidavit then complian it in the England bar council and give the written proof in the court that your solicitor mis represent you,and did not gave the true facts in UKBA.

Ignore this post. Your wife has PR for several years now so she is not required to be a qualified person and can be absent from the UK upto 2 years.

This mistake of the solicitor put me in very bad position I know. I never told him that she left the house at February 2011. It was October 2011 as I said him. And stating her leaving the UK is just a great scenario ( I should say lie ) as I told him before the application that I met her to give decree absolute. But he puts there as she left the country for long time,, he even didn't bother when he was filling the application form, but stupidly I had signed the empty form before as he said it'll save time for us.

About my wife's PR,, She got British citizenship at 2009.

And I'm not sure if my formal solicitor will write me an affidavit about his mistake. He blamed his assistant, who was-is having a serious sickness and became paralysed after it. After they sent my application I had sent an email to his assistant about my concerns that they might used the wrong form etc. Maybe this could be a proof if I need one for my case?? Or Bar Council??

It doesn't really matter now. Get the evidence to support your case. Even if she did leave the UK for some time, as long as it was for less than two years, she didn't lose her status in the UK and it will not affect your status.

[james2012]

Thank you so much Jambo.

[james2012]

Hi everybody,,

It's been a while I didn't write here but I was reading the discussions time to time.
First of all I should thank to our great moderators for their precious advices. Thanks to their and support I finally got the PR and my passport. Yes, it was quite long time to wait after the upper tribunals decision for my favour, but 5 months after the Upper Tribunal, I got my passport back in October 2013 with PR stamped in.

Now I,m preparing for life in UK test for naturalisation process. Even though I didn't finish 12 months period after receiving my PR I still have right to apply for BC by the 26 of January 2014 ( As I was told by a very good trainee barrister friend)

I have a short question: Am I eligible to BC now? I think I am as I'm going to explain down there, but before lets give some short information again.

My case briefly :

I came to UK at 09/10/2006
Married to my EU National wife at 26/01/2008
Divorced at 25/05/2012
My PR application refused in Oct. 2012
FTT judge dismissed my appeal at 14/04/2013
UT Judge allowed my appeal and granted PR at 06/06/2013

As I was told by this very good friend, I should just show the evidence that I lived in UK under the EU rules for 6 years. And from 26/01/2008 to 26/01/2014 I have completed this 6 years period to be eligible for BC. Because at the first place, I'm securing PR at 26/01/2013 for having been living 5 years under the EU rules. So I reserve the PR starting form the 26/01/2013 although I was struggling to prove I had this right (PR)for the time being.

And thus the UT Judge granted my PR.
In her determination she states it :

" He[/i] (FTT Judge) considered the five year period to stretch from 26'th January 2008 which was the date of marriage until 25'th May of 2012 which was the date of divorce. He found that not to be a continuos period of five years residence. However it's clear from the timeline that the five year period that the judge required to consider started from the marriage date on 26'th January 2008 and the five year period which ended on 26'th January 2013. It seems to me that the difficulty in calculating the five year period arose because at the date of the decision in this case that was before the five year period had elapsed thus in effect the Appellant had applied before the five year period. However at the date of hearing which was 14'th March 2013 that postponed the five year point of 26'th of January 2013 by which stage he could show under the Regulations that collectively the evidence covered a continuous five year period being made up from the period of time where the former spouse was exercising treaty rights and then the Appellant himself exercising treaty rights being employed or self-employer or self sufficient since the divorce. It is clear that the Regulations require that collectively the evidence must cover a continuous five year period and this would include evidence up to the date of the hearing. "

So as UT judge states here too I was eligible to PR at 26/01/2013. Thus it's not that important that my
PR document was finally issued sent to me in October 2013. I had this right starting from 26'th of January 2013. Finally I can say that I'm eligible for BC at 26'th of January 2014 when I had finished 12 months period after being eligible to PR at 26'th January 2013.

What do you say about this dear friends ?

Do you think that I can apply for BC now and should check it with naturalisation checking services, or I'm not eligible for the BC yet.

Your advice would help a lot, thank you very much in advance for your support.

[askmeplz82]

Yes you can but you need to send all the documents you send for EEA4 application

Your EEA family member exercise treaty right:

26/01/2008 to 25/05/2012

You Exercise treaty right :

25/05/2012 - 26/01/2013

Proof of address from:

26/01/2008 - 26/01/2014

naturalisation with your PR certificate then you must wait 1 yr from issued date