Retention Of Right

[fatimahh]

Hello everyone!!!
This thread is on behalf of a friend of mine, who would like some few clarification.
-French citizen
-married non EEA IN 2004 IN AFRICA
-Non EEA arrive in uk with student visa 2006
- French citizen join non EEA in uk in 2009
-EEA1 and EEA2 granted in september 2010
- French citizen exerce treaty right since 2009 so has been working for 4years.

The problem is that the french citizen need to go back in Africa for work in july 2013.
- Can non EEA have retention of Right??
if yes are the payslip for the past 4 years enough to prove treaty right???

Your response and advice will be appreciated

[Jambo]

Retention of rights applies in cases of divorce or death. If the EEA national leaves the UK permanently, the non EEA national loses the right to live in the UK.

For how long does the EEA national leave for? Would he still be coming back to the UK?

[fatimahh]

Oh dear that is a shame!!!!!! . The EEA is leaving for a 2 years renewable contract. The non EEA is currently in a good job here in the UK and do not want to lose it. EEA will only be visiting during holiday. Can anyone advice on solution to this situation

[Obie]

Is there a child. when in 2009, did the EEA national come to the UK

[A&A]

Oh dear that is a shame!!!!!! . The EEA is leaving for a 2 years renewable contract. The non EEA is currently in a good job here in the UK and do not want to lose it. EEA will only be visiting during holiday. Can anyone advice on solution to this situation

there is something else for this kind of situation. its not called retained rights. I am sure i have read a case similar to this nature. Following was the situation & the outcome.

1. The EEA & NON EEA must live for at least 1 year together.
2. Further to the 1 year they musnt be unmarried for the next 2 years.
3. total of 3 years needed to be married before he can request for a stay in the UK.

go speak to a solicitor. if not then ill give a number of one afican solicitor who specializes in cases like this.

[Jambo]

Oh dear that is a shame!!!!!! . The EEA is leaving for a 2 years renewable contract. The non EEA is currently in a good job here in the UK and do not want to lose it. EEA will only be visiting during holiday. Can anyone advice on solution to this situation

there is something else for this kind of situation. its not called retained rights. I am sure i have read a case similar to this nature. Following was the situation & the outcome.

1. The EEA & NON EEA must live for at least 1 year together.
2. Further to the 1 year they musnt be unmarried for the next 2 years.
3. total of 3 years needed to be married before he can request for a stay in the UK.

go speak to a solicitor. if not then ill give a number of one afican solicitor who specializes in cases like this.

Those are exactly the conditions to retain the rights which are only applicable in case of a divorce (which is not the case here). Even an African lawyer won't be able to help here.

[fatimahh]

Hello, everyone, thanks for your reply. No obie there is no child involved. The poor couple are very depressed now that i have shown them your view . Still looking for a solution though, as the Non EEA definitely need to stay in the UK, this is a lifetime job with lot of opportunity the person is doing will be silly to abandon it now!
Life so unfair

[Jambo]

You didn't answer Obie's question - when did they arrive in 2009?

If this is January for example, by July 2013, they would have completed 4.5 years. The EEA national is allowed to be 6 months out of the country without affecting the 5 years for PR (and being out of the country he doesn't need to exercise treaty rights during that time) so if he leaves in July and returns for Christmas for a few weeks, they can apply for PR in January 2014.

[fatimahh]

OOPS sorry i missed that one, the EEA joined the non EEA around mid february 2009 they said

[Jambo]

In that case, if the EEA national can make sure his absences during February 2013-February 2014 are less than 6 months (maybe come back for a few weeks during his work in Africa), then they should be able to apply for PR after completing 5 years.

[fatimahh]

Thank you for your replyJambo, in that case what about payslip regarding treaty right for that period??? And for my own culture if lets say they were divorced and were to apply for ROR will the 4year treaty right proof (payslip) be enough???

[Jambo]

The EEA national needs to provide evidence he exercised treaty right while in the UK (for example by providing payslips). It is not required for time outside the UK.

If they divorced and the RoR conditions are met (3 years of marriage, one year in the UK, EEA national exercising treaty rights), the non EEA national can apply for retention of rights.

[Obie]

It is important to note that the UK could interpret Regulation of 15(1b) significantly restrictive, in circumstance where it is apparent that the the EEA national was not living in the UK with the EEA national. Not withstanding the fact that the EEA national has not broken his continuity of Residence.

[fatimahh]

Thank you both Jambo & Obie for your advice. I have shown my friends your comment and considering Obie last comment we think it is best they seek a lawyer advice as well.
thanks

[dorian1986]

is that three year starting the date of marriage or the date of issued residence card?

[rodrimarto]

3 years from the date of marriage.

[Nimitta]

The EEA national needs to provide evidence he exercised treaty right while in the UK (for example by providing payslips). It is not required for time outside the UK.

If they divorced and the RoR conditions are met (3 years of marriage, one year in the UK, EEA national exercising treaty rights), the non EEA national can apply for retention of rights.

Just curious. Sham marriage is a serious offense. How about sham divorce?

[Amber]

The EEA national needs to provide evidence he exercised treaty right while in the UK (for example by providing payslips). It is not required for time outside the UK.

If they divorced and the RoR conditions are met (3 years of marriage, one year in the UK, EEA national exercising treaty rights), the non EEA national can apply for retention of rights.

Just curious. Sham marriage is a serious offense. How about sham divorce?

Any deception is serious.

[Nimitta]

Just curious. Sham marriage is a serious offense. How about sham divorce?

Any deception is serious.

Back to this question... two years later. There is no such thing as a sham divorce or "a genuine marriage turning into a sham one" or sham divorce (a sham dissolution of a genuine marriage). I was just reading the Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens

The abusive character of marriages of convenience is represented by
mala fide of the spouses prior to and at the moment they enter
into the marriage. Marriages which started off as genuine marriages but later descended into something that is merely of form should not be considered as
marriages of convenience even where a marriage that would otherwise
have been terminated by divorce is maintained for the sole purpose of continuing to confer on the non-EU spouse a right of residence under
EU law on free movement of EU citizens.