Retained right of residence confusions !!!

[askmeplz82]

A lawyer told me that:

if a NON-EU national apply for ROR he/she should not be required to show that their former partners were working for a continuous period after marriage in order to establish a right of residence.

as long as immediately before Decree Absolute , EU national was exercising treaty right.

I don't understand how that's possible. i thought even for ROR non eu national need to prove that EU national was exercising treaty right continuously after marriage

the lawyer told me that she succeeded in a family member ROR appeal 4 months ago

[Oke1]

Yes she right but because of our people
Scared of ukba that why they assept
Mix interpretation of ukba and so many
Have assept all this things that why ukba
Refeus people and send them to appeal
To prove that their eea ex he/she work till
After decree apsolute issued and many of
The case worker too they believe on
That the lawyer is right if any lawyer
Tell u wrong things on eu right say yes
And go on eu right article 1-18 you
Will see that so many lawyer know noting
About eu law

[waqas123]

Hi askmeplz !!
Can you ask that lawyer to give you that case reference. Because including me too many people in this forum are in same trouble that they have to prove that EU national was working/exercising treaty rights during heir divorce proceedings.
Thanks

[vinny]

If appealing, then use the Tribunal to help.

[Obie]

Lets get few things straight.

A person will qualify for retention of residence, if he/she is able to show that on termination of the marriage, his or her ex spouse was a qualified person.

There is, and has never been a requirement that they show the Ex EEA spouse was qualifed throughout the currency of the marriage for the person to qualify for retention.

However in the context of PR, a person will, if he'she wishes to rely on time spent as a family member before divorce, show that the EEA national was a qualified person throughout their marriage, for that person to qualify under regulation 15(1f).

This is the position of the law of this land. It is clearly dodgy, but as things stand, that is the interpretation given by the second to highest court of the land.

[askmeplz82]

Hi askmeplz !!
Can you ask that lawyer to give you that case reference. Because including me too many people in this forum are in same trouble that they have to prove that EU national was working/exercising treaty rights during heir divorce proceedings.
Thanks

CORRECTION: immediately before Decree Absolute not divorce proceeding


thanks Vinny and Obie

[askmeplz82]

If appealing, then use the Tribunal to help.

don't want to open new thread so here is another question.

A mate need some ideas on ROR

If EU/NO EU married for 4 years, lived together for 1 year 8 months. until now they are seperated only

Now EU national asking for divorce because she is pregnant by other man ( current BF )


currently she is on jobseeker allowance ( so exercising treaty right )

NON-EU national want to apply for comprehensive insurance for both. They have a joint bank account

i suggested him to go for it because you never know when EU national will find work it's almost 4 months already. so, it's better to spend money now then later in appeal if UKBA refuse his ROR application after divorce

am i right ?

if i am right.. best way to prove self sufficient where both don't live together anymore ?

[Imshzd]

if i am right.. best way to prove self sufficient where both don't live together anymore ?






If both don't live together then how they can show the joint bank account?

[askmeplz82]

if i am right.. best way to prove self sufficient where both don't live together anymore ?


If both don't live together then how they can show the joint bank account?

So you mean even if they have Joint Bank account after marriage till now they can't use it to prove self sufficient ( + insurance )

Joint Bank account ( even if they don't live together still legally EU national can withdraw using her ID or Bank card ) is it necessary to live together?

An EEA national can qualify as self-sufficient based on the income of their non-EEA family member. It doesn't say anything about separation or divorce

so basically right until degree absolute still a family member.. correct me if i am wrong

[vinny]

Self-sufficiency may be more complicated.

[askmeplz82]

Self-sufficiency may be more complicated.

Unfortunately, the non-EAA family members cannot work before the EEA national is a qualified person (71).

i understand what you trying to say. it's for EU national who is not a qualified person yet after arriving 1st time in the UK

but i'm talking about someone ( EU ) national living here since 2009, Exercised treaty right continuously by ( worker and self employed ) until recently 4 months ago when she lost her job.

and non eu national already on 5 yrs resident card

[Imshzd]

if i am right.. best way to prove self sufficient where both don't live together anymore ?


If both don't live together then how they can show the joint bank account?

So you mean even if they have Joint Bank account after marriage till now they can't use it to prove self sufficient ( + insurance )

Joint Bank account ( even if they don't live together still legally EU national can withdraw using her ID or Bank card ) is it necessary to live together?

An EEA national can qualify as self-sufficient based on the income of their non-EEA family member. It doesn't say anything about separation or divorce

so basically right until degree absolute still a family member.. correct me if i am wrong

That is really complicated situation.

Once the divorce proceeding starts then what does it mean?


EEA national and non EEA national both or one of them are not happy to live as a husband or wife..

So it's a common sence that after this they can not share their finances etc,jointly.


If EEA national wants divorce then why EEA national deposit his/her salary in the joint account or why EEA national pay bills of non EEA national??common sence.

This route is totally by chance or luck.

[Obie]

EEA national will need to have access to these resource.

The fact that the EEA national pregnant with another guys child, live with that other guy, and on Jobseekers allowance, which does not take account of this contrieved self-sufficiency, will be a reason for this application to fail.

Yes the marriage is officially valid until divorce, and no need for the EEA national and Non-EEA national to live in the same household.

However in the context of a claimed self-sufficiency assessment, which the member states have discretion to define, the factors i listed above will be extremely important.

[askmeplz82]

EEA national will need to have access to these resource.

The fact that the EEA national pregnant with another guys child, live with that other guy, and on Jobseekers allowance, which does not take account of this contrieved self-sufficiency, will be a reason for this application to fail.

Yes the marriage is officially valid until divorce, and no need for the EEA national and Non-EEA national to live in the same household.

However in the context of a claimed self-sufficiency assessment, which the member states have discretion to define, the factors i listed above will be extremely important.

yes you are right it sound strange ; but in real life is it possible ? UKBA will not ask if the EU national is pregnant or not. even if the EU national on pregnancy leave who is the father ?

the only question that matter to them if self sufficient ... sufficient fund in the joint bank account or EU national account and comprehensive insurance,

Job-seeker -


In most circumstances we would expect an EEA national to be economically active within six months. It is highly likely that an individual claiming a right of residence as a job-seeker will also be exercising treaty rights as a self-sufficient person.

[Obie]

The only way he could secure ROR on the basis of what you have said, is if the fact are not know to the UKBA, and no checks are undertaken.

If it is established that the live in different household and the wife has no access to the funds in the account, or she is in some sort of benefits, or the new partner has made a joint claim for them for tax credits, then it is difficult to see how this self-sufficiency could be lawful or genuine.

[askmeplz82]

The only way he could secure ROR on the basis of what you have said, is if the fact are not know to the UKBA, and no checks are undertaken.

If it is established that the live in different household and the wife has no access to the funds in the account, or she is in some sort of benefits, or the new partner has made a joint claim for them for tax credits, then it is difficult to see how this self-sufficiency could be lawful or genuine.

I agree with you 80% but is it requirement for NON EU and EU national to live under one roof if they apply as self sufficient .. even if EU national have unlimited access to the FUND ( joint account for example )

I can't find anywhere that say that it's a requirement .

[Obie]

Well you don't have to disagree with me 20%, you are free to disagree with me 100%.

Article 8(4) of directive 2004/38EC, empowers the member states to take account of the personal situation of the EEA national concerned, in order to determine whether they have sufficient resource to be self -sufficient.

If the full circumstance of this case is know to the UKBA, then it may be open to them to refuse to accept that the EU citizen is indeed self-sufficient, given that he is seperated from the non-EU, not resident in the same household, resides with someone else. It is also open for them to invoke article 35.

In EU law, the couple are not meant to live together, but if the guy is going to say he supports the EU citizen, and for the EU citizen to be self- sufficient, he will be required to show the following.

1. his resource is sufficient to maintain his home and that of the EU national's home.

2. That the EU national has access to these resource.

3. That the CSI covers her pregnancy and the treatment she is receiving for it is covered by CSI

4. That she is not on social security benefits, which will indicates she poses an unreasonable burden on UK resources.

Self sufficiency is not simply showing payslips and say i work and have CSI, all factors will be accessed, except the are concealed, and the UKBA is unable to investigate them.

[askmeplz82]

Well you don't have to disagree with me 20%, you are free to disagree with me 100%.

Article 8(4) of directive 2004/38EC, empowers the member states to take account of the personal situation of the EEA national concerned, in order to determine whether they have sufficient resource to be self -sufficient.

If the full circumstance of this case is know to the UKBA, then it may be open to them to refuse to accept that the EU citizen is indeed self-sufficient, given that he is seperated from the non-EU, not resident in the same household, resides with someone else. It is also open for them to invoke article 35.

In EU law, the couple are not meant to live together, but if the guy is going to say he supports the EU citizen, and for the EU citizen to be self- sufficient, he will be required to show the following.

1. his resource is sufficient to maintain his home and that of the EU national's home.

2. That the EU national has access to these resource.

3. That the CSI covers her pregnancy and the treatment she is receiving for it is covered by CSI

4. That she is not on social security benefits, which will indicates she poses an unreasonable burden on UK resources.

Self sufficiency is not simply showing payslips and say i work and have CSI, all factors will be accessed, except the are concealed, and the UKBA is unable to investigate them.

Thank you for your reply ... now it's 100% clear and i agree with you

so i will suggest not to stop job seeker allowance.

1. continue receiving job seeker allowance and looking for job ( 4+ months already )

2. also apply for Comprehensive insurance + deposit 10K in the Join bank account

so that EU national is exercising treaty right in both ways ; just to be on the safe side ..

it's better to prepare for Retained right Residence even before starting divorce proceeding so that UKBA will have less chance to refuse an application

1 month before divorce proceeding - until decree absoulte ( crucial moment )

read in this forum many applications refused because EU national was not exercising treaty right until decree absolute

thanks >>> learning new EU rules everyday

[Amebo]

Well you don't have to disagree with me 20%, you are free to disagree with me 100%.

Article 8(4) of directive 2004/38EC, empowers the member states to take account of the personal situation of the EEA national concerned, in order to determine whether they have sufficient resource to be self -sufficient.

If the full circumstance of this case is know to the UKBA, then it may be open to them to refuse to accept that the EU citizen is indeed self-sufficient, given that he is seperated from the non-EU, not resident in the same household, resides with someone else. It is also open for them to invoke article 35.

In EU law, the couple are not meant to live together, but if the guy is going to say he supports the EU citizen, and for the EU citizen to be self- sufficient, he will be required to show the following.

1. his resource is sufficient to maintain his home and that of the EU national's home.

2. That the EU national has access to these resource.

3. That the CSI covers her pregnancy and the treatment she is receiving for it is covered by CSI

4. That she is not on social security benefits, which will indicates she poses an unreasonable burden on UK resources.

Self sufficiency is not simply showing payslips and say i work and have CSI, all factors will be accessed, except the are concealed, and the UKBA is unable to investigate them.

Thank you for your reply ... now it's 100% clear and i agree with you

so i will suggest not to stop job seeker allowance.

1. continue receiving job seeker allowance and looking for job ( 4+ months already )

2. also apply for Comprehensive insurance + deposit 10K in the Join bank account

so that EU national is exercising treaty right in both ways ; just to be on the safe side ..

it's better to prepare for Retained right Residence even before starting divorce proceeding so that UKBA will have less chance to refuse an application

1 month before divorce proceeding - until decree absoulte ( crucial moment )

read in this forum many applications refused because EU national was not exercising treaty right until decree absolute

thanks >>> learning new EU rules everyday

What of if the EEA NATIONAL AND THE NON EEA lived and worked together for more than 3 years also lived together during divorce? But EEA NATIONAL later moved out after divorce but gave all the necessery documents to NON EAA to retain Right.

Will the HO also think is marriage of convinence? Bcos is not but i will like to find out from you guys plssssssssssssssss spare your litle time to give ur idea

Thanks

[askmeplz83]

Well you don't have to disagree with me 20%, you are free to disagree with me 100%.

Article 8(4) of directive 2004/38EC, empowers the member states to take account of the personal situation of the EEA national concerned, in order to determine whether they have sufficient resource to be self -sufficient.

If the full circumstance of this case is know to the UKBA, then it may be open to them to refuse to accept that the EU citizen is indeed self-sufficient, given that he is seperated from the non-EU, not resident in the same household, resides with someone else. It is also open for them to invoke article 35.

In EU law, the couple are not meant to live together, but if the guy is going to say he supports the EU citizen, and for the EU citizen to be self- sufficient, he will be required to show the following.

1. his resource is sufficient to maintain his home and that of the EU national's home.

2. That the EU national has access to these resource.

3. That the CSI covers her pregnancy and the treatment she is receiving for it is covered by CSI

4. That she is not on social security benefits, which will indicates she poses an unreasonable burden on UK resources.

Self sufficiency is not simply showing payslips and say i work and have CSI, all factors will be accessed, except the are concealed, and the UKBA is unable to investigate them.

Thank you for your reply ... now it's 100% clear and i agree with you

so i will suggest not to stop job seeker allowance.

1. continue receiving job seeker allowance and looking for job ( 4+ months already )

2. also apply for Comprehensive insurance + deposit 10K in the Join bank account

so that EU national is exercising treaty right in both ways ; just to be on the safe side ..

it's better to prepare for Retained right Residence even before starting divorce proceeding so that UKBA will have less chance to refuse an application

1 month before divorce proceeding - until decree absoulte ( crucial moment )

read in this forum many applications refused because EU national was not exercising treaty right until decree absolute

thanks >>> learning new EU rules everyday

What of if the EEA NATIONAL AND THE NON EEA lived and worked together for more than 3 years also lived together during divorce? But EEA NATIONAL later moved out after divorce but gave all the necessery documents to NON EAA to retain Right.

Will the HO also think is marriage of convinence? Bcos is not but i will like to find out from you guys plssssssssssssssss spare your litle time to give ur idea

Thanks

Why do you think it's Marriage of Connivence ? I can't think of anyway it is

according the EU LAW separation doesn't end NON EU right. EU/NON EU can live under different roof even after marriage but to be on the safe side it's better to prove that minimum 1 year they lived together in the same house.

You lived together 3 years that's more then enough. Average people who divorced live like 1-2 years together.

If you have all the required documents then you can apply for ROR

make sure you also included ex spouse exercising treaty right up until DECREE ABSOLUTE .. this is very important. Home office have refused cases where the application didn't show exercising treaty right until DECREE absolute

[askmeplz83]

Well you don't have to disagree with me 20%, you are free to disagree with me 100%.

Article 8(4) of directive 2004/38EC, empowers the member states to take account of the personal situation of the EEA national concerned, in order to determine whether they have sufficient resource to be self -sufficient.

If the full circumstance of this case is know to the UKBA, then it may be open to them to refuse to accept that the EU citizen is indeed self-sufficient, given that he is seperated from the non-EU, not resident in the same household, resides with someone else. It is also open for them to invoke article 35.

In EU law, the couple are not meant to live together, but if the guy is going to say he supports the EU citizen, and for the EU citizen to be self- sufficient, he will be required to show the following.

1. his resource is sufficient to maintain his home and that of the EU national's home.

2. That the EU national has access to these resource.

3. That the CSI covers her pregnancy and the treatment she is receiving for it is covered by CSI

4. That she is not on social security benefits, which will indicates she poses an unreasonable burden on UK resources.

Self sufficiency is not simply showing payslips and say i work and have CSI, all factors will be accessed, except the are concealed, and the UKBA is unable to investigate them.

Thank you for your reply ... now it's 100% clear and i agree with you

so i will suggest not to stop job seeker allowance.

1. continue receiving job seeker allowance and looking for job ( 4+ months already )

2. also apply for Comprehensive insurance + deposit 10K in the Join bank account

so that EU national is exercising treaty right in both ways ; just to be on the safe side ..

it's better to prepare for Retained right Residence even before starting divorce proceeding so that UKBA will have less chance to refuse an application

1 month before divorce proceeding - until decree absoulte ( crucial moment )

read in this forum many applications refused because EU national was not exercising treaty right until decree absolute

thanks >>> learning new EU rules everyday

What of if the EEA NATIONAL AND THE NON EEA lived and worked together for more than 3 years also lived together during divorce? But EEA NATIONAL later moved out after divorce but gave all the necessery documents to NON EAA to retain Right.

Will the HO also think is marriage of convinence? Bcos is not but i will like to find out from you guys plssssssssssssssss spare your litle time to give ur idea

Thanks

Why do you think it's Marriage of Connivence ? I can't think of anyway it is

according the EU LAW separation doesn't end NON EU right. EU/NON EU can live under different roof even after marriage but to be on the safe side it's better to prove that minimum 1 year they lived together in the same house.

You lived together 3 years that's more then enough. Average people who divorced live like 1-2 years together.

If you have all the required documents then you can apply for ROR

make sure you also included ex spouse exercising treaty right up until DECREE ABSOLUTE .. this is very important. Home office have refused cases where the application didn't show exercising treaty right until DECREE absolute

[Lucky576]

Hi askmeplz,!!
Can you please give us solicitor case reference who advice you that we dont need eu exercising treaty rights after divorce?

[vinny]

See also 10(5) and 15(f).

[askmeplz82]

Hi askmeplz,!!
Can you please give us solicitor case reference who advice you that we dont need eu exercising treaty rights after divorce?

until the date of Decree absolute: EEA national exercising treaty rights

Date of Decree absolute to the date of application: NON EU national
exercising treaty rights same as EU national

that's the LAW

[askmeplz82]

Well you don't have to disagree with me 20%, you are free to disagree with me 100%.

Article 8(4) of directive 2004/38EC, empowers the member states to take account of the personal situation of the EEA national concerned, in order to determine whether they have sufficient resource to be self -sufficient.

If the full circumstance of this case is know to the UKBA, then it may be open to them to refuse to accept that the EU citizen is indeed self-sufficient, given that he is seperated from the non-EU, not resident in the same household, resides with someone else. It is also open for them to invoke article 35.

In EU law, the couple are not meant to live together, but if the guy is going to say he supports the EU citizen, and for the EU citizen to be self- sufficient, he will be required to show the following.

1. his resource is sufficient to maintain his home and that of the EU national's home.

2. That the EU national has access to these resource.

3. That the CSI covers her pregnancy and the treatment she is receiving for it is covered by CSI

4. That she is not on social security benefits, which will indicates she poses an unreasonable burden on UK resources.

Self sufficiency is not simply showing payslips and say i work and have CSI, all factors will be accessed, except the are concealed, and the UKBA is unable to investigate them.

My friend asked this same question to :

http://europa.eu/youreurope/advice/index_en.htm

and this was their reply.....



Dear Madam

Pursuant to EU law (Directive 2004/38) you have right to reside in the UK as economically non-active person provided that you have sufficient resources to support yourself and valid health insurance.

That is why at least from the perspective of EU law, it does not matter whether you remain married or not. As long as you have access to resources that will allow you to maintain yourself, you ought to be deemed to fulfil the condition.

The case is similar with regards to health insurance. If during the time when the divorce is not formalised yet your husband’s insurer continues to provide cover for you, you will be deemed to fulfil the condition. Otherwise you should look to obtain your own healthcare cover. You would be best advised to contact the insurer direct to make sure that your husband’s cover will remain in place.

Thank you for contacting our service.

Yours faithfully

Your Europe – Advice