What happens to EEA4 spousal visa after divorce?

[Peanut]

Hello! I would dearly love some advice from anyone who can help, first the facts:

My lovely boyfriend of one year is South African and has been living and working in the UK on a 'family visa' or spousal visa because his wife holds an Irish passport. He entered the UK in May 2002 and his visa is valid til April 2008.

He separated from his wife in autumn 05, and they have one 3 year old daughter together.

He is self-employed (he subcontracts via the CIS scheme, which means he files his taxes on an annual basis).

His divorce is amicable and moving along quickly - and based on the Home Office letter that accompanies his visa, he would no longer be entitled to stay in the UK once he is divorced due to the nature of his visa. He is expecting to be divorced by April 2007, latest.

We have looked into various ways of obtaining him indefinite leave to remain but seem to keep hitting a wall:

- ILR on basis of UK ancestry (his grandfather was born in England) - not allowed once entry has been gained in a different category?
- ILR on basis of 3 years plus marriage - not allowed because his wife holds Irish passport?
- ILR on basis of parent to a UK citizen - child does not live with him?
- ILR on basis of 5 years residency - apparently not allowed because he currently has an EEA4 visa (we don't understand this but that is what the IND helpline said) so needs to apply for ILR on basis of this.

Surely he won't be able to apply for ILR on basis of EEA4 once divorce is through? Can anyone help?

Thank you SOOOOOOO much in advance, it's all such a maze!

Peanut xxx

[John]

So he got a 6-month EEA Family Permit first, issued abroad, and later applied for and got a 5-year extension in the UK? From the dates given by you that would certainly make sense, but please confirm.

New EU/EEA Regulations came into force on 30.04.06. They radically change matters. Can I ask, when was the marriage? And when did divorce proceedings commence?

Also, as regards the child of the marriage, does he have custody? Or if not, does he have access to the child before of a Court Order?

After getting answers to the above questions it will be possible to outline the options.

[Peanut]

Hi John,

Thank you SO much for your very fast and knowledgeable reply! In answer to your questions:

- Yes, my partner was issued a 6-month visa in SA (married there April 2002) and then granted a 5-year visa upon arrival in the UK.
- Divorce proceedings are going backwards and forwards via solicitors but we think official papers were filed in October 2006.
- He has regular access to his child via an official agreement (through solicitors) however access via a Court Order is part of the divorce proceedings currently (they have agreed on a Contact Order) and so will not be official until the divorce is finalised.

Please let me know if anything else is unclear! Thank you so much again!

Peanut

[John]

Peanut, all that information is great to hear! I say that because if you download these regulations which came into force on 30.04.06, and in particular read Regulation 10, you will see that he has retained his right to remain in the UK on his current Residence Card, and also will be able to get Permanent Residence (really ILR) when he has been here for 5 years .... notwithstanding the fact that the marriage which brought him here has broken down.

So as he "He entered the UK in May 2002" on the original EEA Family Permit, he is entitled to apply for Permanent Residence in May 2007. It matters not that the existing permission does not expire until a later date.

However there is a further point to make. The form EEA4 really does not cope with the Regulation 10 situation. Hopefully before May IND will have designed the EEA4, or alternatively issued another form to cope with the situation.

[Peanut]

Thank you so much John! Will read relevant info and inform ourselves! You've been a real star!

Peanut

[JAJ]

Hello! I would dearly love some advice from anyone who can help, first the facts:

My lovely boyfriend of one year is South African and has been living and working in the UK on a 'family visa' or spousal visa because his wife holds an Irish passport. He entered the UK in May 2002 and his visa is valid til April 2008.

He separated from his wife in autumn 05, and they have one 3 year old daughter together.

As John says, it appears that the EEA rules save his case and he can become a Permanent Resident in May 2007.

He can apply for naturalisation as a British citizen one year later, or if he marries you (assuming you are a British citizen) meanwhile, he can go for naturalisation as soon as he becomes a Permanent Resident.

Incidentally, had he applied for a "normal" spouse visa under UK rules (which he was eligible for because his wife was an Irish citizen) rather than the EEA permit, he would have obtained ILR after 1 year in the UK, which was the rule at the time.

Regarding his daughter, because her mother was an Irish citizen and hence deemed "settled" in the UK, she should be a British citizen automatically (if born in the UK). However, as the Passport Office may not understand these rules, he should write to the Home Office IND and obtain a letter confirming that she is in fact a British citizen under section 1(1)(b) of the British Nationality Act 1981. The letter from the Home Office could then be used to support a British passport application for her, if she does not have one already.