EEA Family Member - Divorce and Right of Residence

[brummie123]

Sorry so what does that mean? I have a chance?!

I have always worked in UK and am self-employed still.

My ex wife was in UK until Nov 2009 and then when she went abroad she did the divorce. The divorce completed in April 2010.

[Nimitta]

I'm really confused on this now.

So from what u guys are saying it appears I don't have much of a case. The home office refusal talks about the decree absolute and from some of their guidance notes it seemed that if the divorce has taken place then I would not need to show any documents for my ex wife exercising treaty rights and instead only show that we lived together.

It would help if you cited the notes instead of paraphrasing them. The way it sounds it does not make much sense.

[brummie123]

I will need to find the exact guidance note, but I have the checklist in front of me and it only lists some documents to provide for the eea national but doesn't mention for the full 5yr period.

[bobobo]

brummie123 - I dont understand how you think you have a chance when clearly everything is against you. Read the link I have posted,bottom line is that you cannot apply for retention of rights. Since your EEA spouse left UK in 2009 you are in the UK illegally at the moment. The requirements cant be clearer. The Key one being the EEA Spouse has and is Exercising Treaty Rights in UK. Which Clearly in your case your spouse is not true. Since she applied for a Divorce from abroad clearly proves she is not in UK which will go against you. As when applying for Retention of Rights you need to prove that the Ex Spouse was exercising treaty rights from the initiation to the grant of Decree Absolute, which again you will fail to prove. Sorry to be the carrier of bad news, but if you apply your application will fail and you would be liable for deportation.

Nimitta - The HO have the blessing of AIT on this particular bit where they do ask specifically for proof that the Ex Spouse was exercising treaty rights from the initiation to the grant of Decree Absolute. Many application for Retention have failed when this was not provided. This is a bit of a grey area.

[Nimitta]

I will need to find the exact guidance note, but I have the checklist in front of me and it only lists some documents to provide for the eea national but doesn't mention for the full 5yr period.

We are not talking about 5 year period now. You would have needed it if you could apply for Permanent Residence card. Unfortunately, this is not an option. Retaining residence right is not an option either because your wife has not being exercising treaty rights for 2 years. I agree with bobobo that the case looks quite hopeless. Sorry.

If you really need to know why the documents you received from the HO say what they say you need to be more explicit and accurate.

[brummie123]

Ok everyone it all appears quite confusing.

My solicitor appears to have applied for PR on the basis that I have a retained right of residence according to paragraph 5.4.2 of Chapted 5 of the European Casework Instructions on Residence Card applications. The solicitor has followed on from this point to state that I should get PR now based on my retained right to residence (even though I didnt apply for it, I understand that if I had applied then maybe my situation could have been helped by the policy set out in Chapter 6 whcih states I only need to show documents for myself and not the ex-wife). The solicitor has gone to explain that I remained lawfully in the UK until the date of our divorce in April 2010, due to my retained right of residence.

Solicitor has tried to cover the period of Nov 09 (when my wife left the UK) to the date of the divorce, by mentioning para 3 of the Immigration (EEA) Regs 2006 stating that for the purpose of calculating periods of continuous residence in the UK, under Reg 5(1) and 15, continuity of residence is unaffected by "any one absence from the UK not exceeding 12 months for an important reason such as ...study.



However, I have been reading the case law of
OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003 and am still unclear if there is any way around this.

[soulgirl]

HI, i hope somebody can help me in my matter please. I got married in 2004, and my husband applied for permanent residence. We have been separated since last year and i would like to go proceed with the divorce and i was wondering if my husband would still be able to get permanent residence or if the divorce would stop the application. Any advice would be much appreciated, many thanks

[nav143]

hi there, i'm wondering if anyone can help me out on my situation. My case lines at below
1. Living in UK since 2001
2. Got married to EEA National in June 2009
3. Got RC valid until Sept 2014
4. Applied PR but refused in Dec 2014
5. I have a child from this relationship who is 7 yrs old but child is living with my family out of UK from last 4 yrs . Child born here but got EEA PASSPORT.
6. Reason for refusal was my wife was not working in that 5 yrs time.
Now the point is, in 2013 I applied for Divorce & I got Decree Nici. But again we tried to save our marriage unfortunately it didnt worked out, we got separated, so in June I applied for Decree Absolute & granted in Aug 2015. I find out that when she left me she start working part time some where. But she refused to give me any document to prove her employment. I was working part time & we were getting house benefit. But last year in Aug 2014, we stopped benefit bcoz i start working as self employed. My partner had alcohal problem thats why she was not able to work, actualy this was the reason to send my child from UK to live with my family abroad. Bcoz on one stage child was subject to put on child protection regester but i took my own responsebilty & took my chid abroad with our mutual aggrement. Since then I'm sending money continuesly for upbring for my child. Now question is, will I get PR !!