retained right of residence as a divorcee from the EEA spous

[Maral]

Hi All,
I applied to retain my right of residency as a divorcee from my EEA spouse, however, the application was rejected. I applied it again, but it was unfortunately rejected. We then requested the UKBA to reconsider the decision given I have ongoing medical treatments, but was suggested to supply new evidence if there is any to submit a NEW EEA4 application. Honestly I am not sure if it would be successful. I suffered from domestic violence during my marriage. The problem was that I did not report to police or any other authorities when the abuse was taking place. However, I have now got reports from psychologists and doctors in which it did describe the domestic violence I had suffered and its induced impact on my health and wellbeing. I was wondering if the UKBA would consider it as adequate evidence. Or I simply need to give up and leave the UK.

Did my formal EEA spouse have to be in the UK at the time of divorce? Is this the precondition to consider if the evidence is adequate to prove I had suffered from domestic violence?

Your thoughts and suggestions are highly valued.

Thanks
Maral

[Maral]

Hi All,
I applied to retain my right of residency as a divorcee from my EEA spouse, however, the application was rejected. I applied it again, but it was unfortunately rejected. We then requested the UKBA to reconsider the decision given I have ongoing medical treatments, but was suggested to supply new evidence if there is any to submit a NEW EEA4 application. Honestly I am not sure if it would be successful. I suffered from domestic violence during my marriage. The problem was that I did not report to police or any other authorities when the abuse was taking place. However, I have now got reports from psychologists and doctors in which it did describe the domestic violence I had suffered and its induced impact on my health and wellbeing. I was wondering if the UKBA would consider it as adequate evidence. Or I simply need to give up and leave the UK.

Did my formal EEA spouse have to be in the UK at the time of divorce? Is this the precondition to consider if the evidence is adequate to prove I had suffered from domestic violence?

Your thoughts and suggestions are highly valued.

Thanks
Maral

[askmeplz82]

First of all you need to tell us bit more in detail about your ROR cases .

Why was it rejected?

Where is that EEA family member now ? If it was your spouse how long you both married and what was he/she doing at the time divorce finalised ?

[Imshzd]

If your application based on domestic violence then the above mentioned proofs are not enough.
If you mentioned in your divorce petition that you are a victim of domestic violence then there is a hope but in the courts.

[Maral]

Thanks to both of you for replying to my post.

1. To askmeplz82:
Rejection reason: I did not have any evidence proving my former EEA spouse was working in the UK when divorce was finalised
I do not know where he is now. Nor do I have any contact with him anymore. If I knew where he is or had any contact with him, would things be different?
Honestly I do not think he was even present in the UK when divorce was finalised.

2. To Imshzd:
No, my suffering from domestic violence was not mentioned in my divorce petition. Is "ON THE DATE OF DIVORCE MY FORMER EEA SPOUSE IS WORKING IN THE UK " a pre-condition to consider my domestic violence claim? i.e, If my former EEA spouse was not working in the UK on the date of divorce, the UKBA would not even consider my domestic violence claim even if my evidence proving I had suffered from domestic violence was adequate enough?

Look forward to hearing from you.

[Imshzd]

Two different points to be understand.

Firstly.If your applying ROR under regulation 10(5), then you have to proof having retained rights of residence.in this situation home office wants to see the qualifying status of your EEA national husband at the time of divorce.

Now come on the second point.if your applying as a victim of a domestic violence then you have to proof this claim by sending court orders against your husband.medical report alone or police complaint alone are not enough useless court orders.

So don't have any proof of your husbands treaty rights at the time of divorce even to are not sure where he was at that time.It means your ROR claim under 10(5) is fruitless.
If your husband was working at the time of divorce then you can request to the court or home office to check with Hmrc.

As per your domestic violence claim you don't have any court order etc,so this looks fruitless as well but may be court can consider your point.

It is very difficult for you to prove domestic violence at this stage when your first ROR already refused and you don't have any evidence required under such application.

You can apply any other category if you are eligible.

[vinny]

Now come on the second point.if your applying as a victim of a domestic violence then you have to proof this claim by sending court orders against your husband.medical report alone or police complaint alone are not enough useless court orders.

Court orders may be sufficient to prove that you're a victim of domestic volience (10(5)(d)(iv)), but they're probably unnecessary if you have other evidence.

[Maral]

Thanks to both for your replies.

To Imshzd:

It sounds to me for domestic violence claim my former EEA spouse does not have to be in the UK. However, I must be able to supply the evidence required to prove I had suffered from domestic violence, otherwise it is likely to fail.

The UKBA was requested to reconsider their decision given I have ongoing medical and psychological treatments induced by the abuse I had suffered. When obtaining the reports from various healthcare professionals, my solicitor did not manage to submit them in timely manner as the UKBA had already rejected to reconsider the decision and said "Decision can only be reversed where it is clear that the original decision was not taken in line with the prevailing policy and immigration laws at the time when the decision was reached. The onus is for the applicant to satisfy the requirements". It also says "This decision was final and any request to review it will not be responded". I am thinking to complain my solicitor, but now it looks I will have to decide if I shall go ahead with any application first of all. I was wondering if the medical reports had reached the UKBA on time, would the outcome of the reconsidered application be different? What is your view on this?

Am I eligible to apply for article 8, private life (10-year route) at all? Do I have to have already lived here for 10 years in order to apply? I have only been here for over 8 years so far.

Looking forward to hearing from you.

[Imshzd]

All depends how you prove your claim.
As you said that the domestic violence took place abroad,this is a grey area and the main point is,have you lived with your husband after the incident at all in uk or abroad??and what legal steps was followed after this violence??
You can claim right to reside in the uk if you met the requirements of article 8.10 or 8 years does not matter.
All is your personal life.

[Maral]

Hi Imshzd,

Apologies I did not finish typing the 1st sentence of my last post, that is why it has caused confusions.

I meant saying "It sounded to me my former spouse was working in the UK on the date of divorce" is not a pre-condition for the domestic violence claim, I,e, if I had enough evidence proving that I had suffered from domestic violence, it does not matter if my former spouse was not in the UK working on the date of divorce, right? Yes, the domestic violence did take place in the UK.

About article 8 private life (10-year route): I do not need to be in a relationship to apply, right? I have been here over 8 years. 1st year on a student visa, then five years as my former spouse's dependent (EEA family member residence card). In the past two years I have been fighting, i.e, applied for a retained right of residency, then rejected, subsequent appeal dismissed, then applied again, rejected again, appeals dismissed again. Obviously when these legal action took place, I did not have any visa or status, even now I do not have any. Would this have any impact on my application? What visa I had in the past years, i.e, EEA family member residence card, should not have any impact on my article 8 private life application as long as I can prove I can not go back to my home country to establish new private life there, right? Would my medical evidence proving I must be under regular clinical supervision of my doctor be helpful with this application at all?

Thanks again

[Imshzd]

If your application is based on domestic violence then you don't have to prove the qualifying status of your ex at the time of divorce.

If you show any one year treaty rights of your ex, during the duration of your marriage then you can easily retain your rights.i.g. First year after marriage etc before the separation or domestic violence.

10 years under uk immigration laws not under EU regulation.
Private life is different then the long residency(10 years).

Under private life you have to establish your case that there is no alternative for you in any other country.
It all depends on your personal situation and good presentations.

[Maral]

Thank you, Imshzd.

I have checked the application form FLR(FP) and was wondering:

1. "Requirements for a grant of leave on the basis of private life: is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which they would have to go if required to leave the UK" seems to me that I do not have to have already lived in the UK for 10 years so far in order to apply under this route, but just wanted to double check if this is the case? As far as I know long term residence (10-year route) leading to permanent residency has been abolished, there are only three categories now under article 8, i.e, FLR (M): 5-year partner / parent route; FLR(O): 10-year partner or parent route, FLR(FP) 10-year private life. As I have no partner or children, therefore I can only apply under FLR(FP)?

2. I have been here for over 8 years as my former EEA spouse's dependent. When my application was rejected and subsequent appeals were dismissed, obviously I did not have any visa et al. Would this have an impact on my application, I,e, the years I have been living here must attached to a certain immigration status, which must not be a dependent of an EEA national, without any interval? The reason I asked is that I want to make sure I meet the basic requirements before submitting an application. I have found the following information. Is it related to private life (10-year route) or long residence route?

Time spent in the UK does not count as lawful residence under paragraph 276A of the Immigration Rules for:
• third country nationals who have spent time in the UK as: the spouse, civil partner or other family member of an European Union (EU), or an EEA national exercising their treaty rights to live in the UK but have not qualified for permanent residence • former family members who have retained a right of residence.
During the time spent in the UK under the provisions of the EEA regulations, the individuals are not subject to immigration control, and would not be required to have leave to enter or leave to remain. For more information, see related link: 05 Residence card applications.
However, you must apply discretion and count time spent in the UK as lawful residence for family members of EU or EEA nationals exercising their treaty rights to reside in the UK, if they meet all the other requirements for long residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK, where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. For more information, see related link: Immigration (European Economic Area) Regulations 2006 – Regulation 15

3. If I submit an FLR(FP) application, would I get an acknowledgement letter saying I am entitled to work pending the decision is made? How long does it take the UKBA to consider such an application, would it be quicker given the application is about 600GBP?

4. If the application is successful, I would be issued a 30-month visa which is renewable. 10 years later I will be entitled to be settled? If it is rejected, would I have the right to appeal?

Look forward to hearing from you.

Many thanks

[Imshzd]

You have to prove a strong evidence that you don't have any ties with your home country and there is no alternative place for you except UK.
These application are completely different from EEA applications.
Right to work,you may request after 12 months if HO not decide your case within the time frame.
Success or not.i can't predict as this is totally based on your personal circumstances.
There is no legal issue if you make a new application during your appeal.
But before taking any step go for the legal advice.

[Maral]

My solicitor could not answer my questions, that is why I am here to search for advices. My solicitor said that I would need to be here for at least 10 years to apply for article 8 private life (10-year) route. He also said that for the domestic violence claim my former spouse needed to be working in the UK on the date of divorce, which is completely different from the information I have got here.

Shall I submit a new EEA4 application or private life application? I thought of requesting the UKBA to consider my case under private life as well in my new EEA4 application, would they be able to consider my case under the EEA regulations and private life at the same time?

My EEA application was rejected, the UKBA did not return my passport. Do I have to request it to be sent back to me in order to make any new application?

Many thanks

[vinny]

See also Ahmed (Amos; Zambrano; reg 15A(3) (c) 2006 EEA Regs) Pakistan (Rev 1) [2013] UKUT 89 (IAC) (28 February 2013) (a case also concerning domestic violence).

[Maral]

How soon shall I make a new application? Is there any deadline to submit it at all? If so, how soon? Preciously speaking, I do not have any visa status now. Am I entitled to stay for 28 days at most since the date I received the UKBA letter asking me to submit a new application? On the letter it does not mention the deadline. I would consider as a over stayer after 28 days?

The UKBA did not return my passport.
Will I have to mention my application history or UKBA reference NO in the new application? If they check my reference no, they shall know my application history and where my passport is about?

Look forward to hearing from you urgently.