Retained Right of Residence Urgent Advice Needed

[econ123]

Hi Guys,

I am hoping someone can point me in the right direction.

I was married to an EEA national for 4.5 years

My ex-spouse was employed for the first 10 months of our marriage and then a self-employed cleaner working on a cash basis for the rest of the duration of the marriage

I have been able to provide the UKBA with the following documents to prove my ex-spouse was exercising treaty rights

1.Payslips for the first 10 months
2.Testimonials from customers on letter headed paper ×3
3.Trading accounts( self-prepared as the money earned wasn’t a lot and there was no need for an accountant) × 4 years
4.Carbon copies of the invoices from the invoice book × 4 years
5.Receipts for the purchases of tools and equipment for the entire 4 year period
6.SA302 (docs issued by HMRC confirming the amount of money earned via self-employment) × last 2 years of the marriage
7.Print out of online HMRC portal detailing the tax history for the full 4 year period

I am unable to get any further supporting documents from my ex as she has recently remarried and does not wish to be contacted by me.

If anyone has had a similar experience or can share a few words of wisdom I will be forever grateful

Q1. I haven’t and cannot provide any bank statements for my ex as I don’t have them and since the business was cash based there were no bank deposits. I have a fear my application will be rejected because I do not have her bank statements, which from what I understand are very crucial, can anyone shed some light on the rules regarding this matter and if I will have any recourse if that does happen

Q2. Will the documents provided be enough to satisfy the UKBA and in the worst case scenario an appeals tribunal ?

Q3. The amount of money earned throughout the 4 year self-employment period averaged from £60-£95 per week, which meant an exemption was granted by HMRC from paying NI/Tax because the earnings were below the threshold. Would this be a problem?

[rosebead]

You might find it useful checking out the table titled "Section 14" on page 126-130 of the new EEA(FM) form. There it has a detailed checklist of the self-employment proofs that the Home Office expects.

I have had no personal experience of your issue but my opinion is that even if the Home Office are going to be difficult about your application, I think you still stand a good chance at a tribunal, as courts must operate on a balance of probabilities and must be proportionate when looking at your evidence. For instance, courts have to ask the question of whether your overall evidence suggests a good probability of genuine and effective self-employment. This is unlike the Home Office's approach who are incredibly bureaucratic and inflexible.

[Annebee]

In addition to the link to required docs that rosebead has pointed you to.

Your docs are good but please ensure you add invoices issued to customers during the period of divorce most importantly.,
You need to also add the NI exemption letter from HMRC.
You need to add proof of tax payments as well. And you must state and add proof of how business is advertised.
The customer testimonials you have is a bonus.

There is no place HO stated that a self employed must produce a business bank account or account showing customers paying in money for services provided. Self employed person must not have a business bank account as it's not a requirement . You need to mention on your cover letter that business has no business account ascash is received on hand. this should I believe should be reflected on the duplicate involves you mentioned you have.

this is advise from experience. So don't be worried about the bank account thing at all. Once abusiness is genuine it is very easy to spot looking at docs provided.

[Obie]

I believe in the balance of probabilities.

In UK law, one does not need to have all the documents the UKVI is requesting for them to be self employed.

Imposing such requirements is wholly unreasonable.

[econ123]

Thank you guys i really appreciate the input!! The check list under section 14 has brought a lot of clarity to the home office requirements.

Does the UKBA treat applicants who are currently married to their sponsor and applicants who are divorced any differently i.e is any special consideration given to the fact that the relationship has ended? I can imagine a lot of people being in my position, when the relationship ends its next to impossible to get the ex to cooperate and provide the full range of supporting paperwork. Or do the caseworkers at UKBA still go by the checklist in EEA(FM) and reject applicants who do not meet their rigid criteria?

[econ123]

Hi All,

I posted a little while back and here is a quick breakdown of my case

- Divorced EEA national in 2012 and my retained right of residence has been pending ever since. In that period i have taken the HO to court twice and won.
-After winning my last appeal in 2014, i was waiting for HO to make a decision based on the documents i had submitted regarding my ex-wife's exercising treating rights
-Instead after making me wait for almost a year they returned my documents last month (with a major chunk of payslips, SA-302, references etc missing, all attempts to locate these missing documents have been futile so far) along with my passport stamped with a 3 month visa and have asked me to apply again. After waiting for over 3 years i get to join the back of the queue.

Now getting back to my query, i have been going through the EEA FM form and its a nightmare and i will be very grateful if anyone can help me with the following questions that are swirling through my mind

Q1. I have heard the form isn't a legal requirement, should i even fill the form? or just fill out the biometric/payment page and send it with a covering letter.

Q2. Page 120 of EEA FM is asking for proof of residence for a whole year prior to the divorce being finalized for me and my sponsor. This was never the requirement before. Can anyone clarify if this is actually a requirement now or is the Home Office overstepping their boundaries.

Q3. Is it possible to apply under the 10 year rule if my retained right of residence case is still pending with the HO or the First Tier Tribunal?

Q4. My passport is going to expire sometime in the near future, when i submit my application will the HO release my passport later on so i can get it renewed?

Thank you for taking the time out to read my post!

[Wise]

you're very correct but check your personal inbox i have few information for you.

[econ123]

you're very correct but check your personal inbox i have few information for you.

Thank you for your response wise! when i try accessing my inbox i get an error message which says 'You are not authorised to read private messages'

So unfortunately i am unable to check my inbox at the moment

Can any of the admins please fix this for me ?

[Wise]

Anyway,that's ok if you need the 2014 application if you forward me your e mail i will e mail it to.

Just few days ago i read it in one of the EEA instruction guideline on this forum and if i can still find it i will let you know,that no caseworker should refuse any application because of either wrong forms or incomplete as long as the biometric page is there.

Or just write a letter of application with explanation of your situation on the letter and post it with biometric page.

Goodluck

[econ123]

Hi All,

A brief timeline of immigration history
I came to the UK on a student visa in July 2006
Married an EEA national in Aug 2007
Got divorced in Feb 2012
I was issued a ROR in Oct 2015 which expires in Oct 2020
I have spent a total of about 8 years on EEA family residence permits so far

I believe i am eligible for to apply for permanent residence. After going through the PR application form & guidance its my impression since i have retained my ROR i do not need to provide documents relating to my ex-wife i.e employment & proof of residences relating to the time period when we were married and i only need to provide proof that i have been residing in accordance with the regulations after the divorce was finalsed.

I will be very grateful if someone can shed some light on the matter.

[Obie]

Was the EEA national a qualified person throughout the duration of your marriage from 2007 to 2012? And are you able to provide documentary to that effect.

[econ123]

Thank you for your response Obie.
I have evidence of my spouse exercising treaty rights during our marriage which is how i retained my right of residence. Its strong for some years and patchy for some.
But do i need to submit these again even though we have been divorced for nearly 4 years now? I was under the impression retaining my right of residence meant i didn't have to rely on my ex spouse anymore.

[Wise]

You must be lucky to have ROR and also what make your application stay in HO till Oct 2015. From your answer to Obei's question I reckon that you're unable to provide the full treaty right of your ex wife. For that reason your caseworker use his/her discretion to give you what you already qualify for.

Because you divorce in 2012 you need to count your new 5 years from when you received your absolute as from that date you aquired ROR till 2017 then you can apply for your PR on your own with only your working history paper work and you don't have to wait till 2020.

If not for the patchy treaty right of your ex by now you should have just got your PR.

Anyway never too late and good luck.
You may be lucky for Obei to still respond to you and quote me if am wrong but am sure that's how it stand.

[Obie]

What did you apply for in 2015?

If you applied for PR confirmation and they gave Retention, then they need to give reasons why this happened.

I think the important thing is to provide a clear 5 years of clear evidence of treaty right, as a family of a qualified person or as former family member who retained right of residence.

[econ123]

I applied for a retained right of residence in 2012 and only got my retained right of residence in 2015. My case dragged on for a while and i had to go to court multiple times to get it resolved. In the process my visa was revoked and then reinstated and then i was finally granted retained right of residence.
Because of this there are 2 periods when i was temporarily unemployed due to no fault of my own. I did not have any proof of right to work while i was waiting for my case to be resolved.
The first period was for 3 months in 2014 that's when i got sacked from my job for having my visa revoked and 6 months in 2015 this is when i was waiting for the HO to make a decision. Apart from these 2 periods i have been in constant employment since i came to the UK in 2006.
Since i can't prove i was looking for work in those 2 periods of unemployment does that mean i am not eligible for PR ?
Your help will be greatly appreciated Obie! thank you

[Obie]

That is a serious matter if the refused you right to work, when you were entitled to. You can seek damages for those loss of employment earnings.

You may be entitled to PR now.

[econ123]

Hello Everyone,

I have retained right of residence and a residence permit valid till 2020, i have recently applied for PR.

I plan on going on a holiday in a couple of months and i was wondering if its possible to request my passport back without withdrawing my application. And if it is how i would go about doing it.

Thanks!

[Wise]

Visit gov.uk website and click immigration follow by EEA link there will be a link where you can actually fill a form to request your passport back.

[ohara]

https://www.gov.uk/visa-documents-returned

I did the same, passport arrived after 4 working days by recorded delivery

[econ123]

Thanks for the reply guys!

And they will return my residence card with my passport right as previously stated its valid till 2020?

[ohara]

If you ask for it back at the same time yes, otherwise it will arrive with all of your other documents when the application has succeeded/failed.

[econ123]

Hello Everyone,

I received a refusal letter for my PR application today.

I currently have ROR.

According to the HO they accept i was exercising treaty rights for a period of 4 years and 1 month. This is the point where i had made my application for ROR which was initially refused, my visa was revoked (because the HO lost my application and refused to acknowledge i had applied at all) and my employment was terminated because of this.

To summarize i was given no right to appeal and had to launch a judicial review in the high court (ruled in my favour)and then the lower immigration tribunal where the HO withdrew their decision and then took over a year to issue me ROR. During which time I was unable to work.

The HO now claim i still had the right to work and could have applied for COA while i was waiting an outcome of my appeal and hence set aside my claim that i was unable to work because of the mistake they made.

I never knew at the time this was possible, i went to multiple lawyers, the Citizen Advise Bureau, posted on this forum and even called the HO to ask them if they could issue me a right to work documentation while i was awaiting a decision and I was told i had to wait for the outcome. My employer made several attempts to contact the HO to verify my right to work before sacking me but was told i had no right to work.

I am now pondering what my next step should be?
1. Does my case have any merit?
2.Should i appeal the decision and if so on what basis? and can anyone recommend good solicitors my experience with them so far has been a nightmare
3. Or should i apply under the 10 year route (but will this employment gap also effect the 10 year application)

I will be grateful for your input.

Thanks!!

[bogboss]

When did you apply pr ?

[econ123]

I applied in the second week of January.

[khan_2015]

I applied in the second week of January.

mate would you please like to tell us what documents you have attached with your application please thanks