CH2 Section 6 - Rights of Non EEA Nationals

[Verbal Kint]

Hoping for some guidance

as per subject line - "there are now a number of circumstances in which non-EEA national family memebers of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK or dies or the relevant marriage is terminated .... these circumstances are set out in regulation 10 of the 2006 regulations

.. the marriage lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution and
.. the parties to the marriage had resided in the uk for at least one year during the duration of the marriage "

Ok my story, am non-EEA married to EEA we have both been living in the UK since 2000 and got married in April 2002, so after 4 1/2 yrs marriage we are wanting to go our seperate ways. I need to think about my future One of my options is to remain in the UK and turn my residence permit (granted August 2002 - expiring August 2007) into permanent residence /ILR Visa.

Looking at this new directive (divorce proceedings have not been initiated as yet although she has moved out)

Questions..

1. will i be granted some new type of visa?
2. How do i go about / what forms to look at to getting visa status moved so that i am no longer reliable on being here due to marriage to EEA national - as i have looked around and cannot find anything pertaining to this
3. Do i lose my last 4 qualifying years upon application for change
4. Should we wait till my visa status has been amended before applying for divorce?
5. Should i just make an appointment with a lawyer i will be going to a lawyer just hoping to gleam some more info from anyone out there

Thanks in advance

[John]

I have edited your post but merely to insert question numbers. Then using those numbers :-

1. After the application is made you will hopefully be granted Permanent Residence ( that is ILR)
2. I think you will still use form EEA4, the same form .... see below
3. No, but see below
4. No, no need to wait
5. A lawyer for the divorce? Or a lawyer for the immigration matter? Or both?

I suggest you download this IND document which is part of the instructions that IND issue to staff dealing with EEA applications. In particular have a read of 5.2 and 5.3.

Are you a student? If so, are you able to support yourself without recourse to Public Funds?

Form EEA4? I think that will be the correct one but there will clearly be sections of the form that do not apply. But none of the EEA series of forms exactly fits the circumstance.

The application can only be made after you have been in the UK for at least 5 years. Maybe by then IND will have redesigned a form?

[Verbal Kint]

Hiya John, thanks for reply, much appreciated

I am still in doubt regards certain issues so will be contacing home office with further questions
will update if anyone is intrested

Cheers

[John]

Hi, if you do contact the Home Office, yes it would be interesting to have confirmation, or otherwise, that the EEA4 form is the one to use?

[Administrator]

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I second the request ...

We would very much enjoy & appreciate it if you will give some feedback on your experiences. They are likely informative to all readers, as well as us.

Hopefully, we can also offer help if it is necessary.

One bit that could affect the entire process. Is your separation amicable with your soon-to-be Ex? As in, would she lean favorably toward helping you ...? In one instance here, your mariiage only needs to last on paper for six more months, perhaps less.

However, in your discussions with Home Office, try to avoid any definite statements about not domiciling together ... that can have a negative impact.

Not advising you to be dishonest ... just don't volunteer that info unless you're put on the spot for it. If your realtions with your ex are amicable, you could have several different options with her cooperation.

The Admin

[John]

However, in your discussions with Home Office, try to avoid any definite statements about not domiciling together ... that can have a negative impact.

Admin, I have to say I do not agree with that. The OP is clearly within the terms of the new EU/EEA regulations that came into force on 30.04.06. That is, the marriage lasted at least 3 years, of which at least 1 year was spent in the UK. Accordingly they are entitled to remain in the UK, even though separated/divorced from their EEA citizen spouse, and entitled to apply for Permanent Residence when time-qualified to do so.

The only "problem" seems to be which form to use to make such an application, because none of the EEA series of forms is 100% appropriate.

I might be wrong but I expect the answer from the Home Office will be ... use the EEA4 form but ignore some specified sections of that form .... but do ensure that a covering letter makes clear that you are applying as a person no longer living with an EEA citizen spouse.

But let's see what they actually say.

[Administrator]

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Hi John --

I'll defer to your experience on this one.

My speculation was that if they were not currently domiciled at this time, it might look a bit much like a marriage of convenience.

I wasn't clear on that ... I wasn't trying to suggest inappropriate legal requirement so much as perception / appearances.

Since I'm from the U.S., I imagine that people not currently domiciled together, yet one is attempting residency based upon a marriage that is about to end .... it would not go over well in the U.S., no matter what legal requirements have been met.

First question will be : Why didn't you apply for this before you separated and began planning your divorce?

Such an interview would not get easier after that.

I remain interested in further information on this case. Please update when you can.

Thanks!

The Admin

[John]

First question will be : Why didn't you apply for this before you separated and began planning your divorce?

Because she was not time-qualified to do that! And indeed is not yet time-qualified at the moment. As you will be aware the applicant for Permanent Residence on the EEA route needs to have been in the UK for 5 years.

We are talking here about the new EEA/EU rights that came in on 30.04.06. The OP has a right to remain in the UK on her current Residence Card/Permit. Prior to the introduction of the 30.04.06 regulations they would have encountered grave difficulties staying in the UK, but no longer. The marriage was clearly real ... it meets the terms of the new regulations .... the marriage lasted at least 3 years ... and at least one of those years was spent in the UK. Clearly those regulations are worded to only give rights where the marriage was not a marriage of convenience.

[breadfan]

Hi I just wanted to shed some light in what I've found in my research into the matter (I'm in a similar situation):

The length of marriage and residence in the UK rule only applies to divorced couples or (I'm assuming) couples who have initiated divorce.

As per section 6.1 of Chapter 2:

Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership.

So one would assume that if you and your wife have been living in the UK since 2000, you could apply for ILR right now. As per the EEA4 form (the one non-EEA nationals have to fill out), your spouse does not need to apply for ILR (form EEA3).

As per Chapter 7 Section 3 of the Immigration Directorate's Instructions, part 5.4 regarding marriages:

5.4.1 Marriages where the couple do not live together

(...) the right to free movement should be based on an objective requirement to be married and should not be subject to a requirement to live together.

The court further determined that a marital relationship cannot be regarded as dissolved as long as it has not been terminated by the competent authorities. Only divorce by absolute decree provides grounds to justify refusing admission to a family member on the basis that he/she is no longer legally a family member.

Also, they are very specific in regards to marriages of convenience:

5.4.2 Marriages and civil partnerships of convenience

The criteria for proving a marriage or civil partnership of convenience, set out in the European Casework Instructions (ECIs) Chapter 5, are strict, must be met and apply to the circumstances at the time of the marriage or civil partnership ceremony and related EEA application. Given that most cases at port involve family members who already hold an EEA family permit or residence card - meaning that initial consideration has already taken place - the number of cases at port will be very low.

EDIT: I've confirmed with a lawyer that non-EEA family members are dependent on the EEA member exercising their right (eg working). And that it has to be a consecutive 5 years with no breaks longer than 6 months of unemployment (and even possibly full time education).

But basically, when filling out the EEA4, on section 4, fill out your EEA spouse's working history for the full 5 years and include evidence of that (P45's, payslips, etc)

One funny reminder to basically ignore government advice and probably just go with a qualified lawyer:

I called the gov advice line regarding the fact that I have a right of residence permit valid til July 2008 (been in the UK since Aug 2002) and the fact that my spouse and I are still married but not living together. The advice given: Move out of the country immediately. After I read her the law which makes it pretty clear marriage is only dissolved if you are divorced, she still insisted that I'm in the UK illegally because I'm not living my with spouse. She had no response to me quoting any of the other bits I've quoted in this post, simply robotically and increasingly more aggressively stating that I needed to leave the country ASAP.

Hard to make sense of these things when they're supposed to be qualified people.