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by shandave2001 » Sat Mar 21, 2009 8:31 pm
Hi Juv
Firstly, I think you must clear up couple of misunderstandings which are apparent from your above posts. Under EU law, it is irrelevant when you were issued RC by the HO and until when it is valid. Rather what is important is when you GOT MARRIED with a qualified EEA national in UK. Your residence right in UK start from the day you got married to a qualified EEA national in UK, not when you have been issued with RC. RC is just confirmation of the right you have already acquired on the day of marriage with a qualified EEA national.
Now there seem to be another misunderstanding. You may have been negating 2 years' separation period from Feb 2009 (divorce initiation start time) when counting time for Retention Right. No, you don't have to, even your divorce is based on 2 years' separation with your ex. The clock start when divorce is initiated, which is Feb 2009.
So clearly you have completed 3 years period needed to qualify for the Retention Right, namely from the date of marriage (Feb 05) to when divorce proceedings initiated (Feb 09). Now second limb of the test is, post marriage, you and your ex husband must have lived together one year in the UK. You fulfil second limb of the test as well, as you stated he (your ex) left you in Oct 2006, so almost one year and 8 months after the marriage.
So far so good. Now we move to a different issue which does not seem to have been debated in this board so far. You said he left you in Oct 2006. The question is, did he leave the UK permanently when leaving you in Oct 2006? If yes, then you was still legally spouse of a EEA national but the PROBLEM is EEA national was no longer qualified, namely not exercising his treaty rights in the UK anymore. If the answer is no, namely he did not leave UK when leaving you in Oct 06, and after marriage he resided at least total 3 years in UK before divorce initiated, then there is no problem and you entitled to Retention Rights.
Now the problem we facing here is how the HO can know whether he was in UK after leaving you in Oct 2006? You are not expected to have evidence of you being together with your ex beyond Oct 06 (when he left you). I think that is the reason HO asks evidence of qualified EEA national living in UK up to 3 years post marriage. As far as I am aware that is something no where in relevant Directive that EEA national must live in UK for 3 years post marriage but mere HO's INTERPRETATION. If this interpretation is successfully challenged in courts, then its means, it doesn't matter if EEA national leave permanently after one year of marriage as long as marriage subsists at least for 3 years or in other words divorce is not initiated before 3 years have lapsed.
It seems reason HO have asked evidence up to when divorce was initiated because in those individual cases divorces have been initiated after 3 years of marriage, so rather than saying up to 3 years, they used the term up to divorce.
An important thing, the burden of proof is on APPLICANTS, NOT ON HO to prove their marriage lasted at least for 3 years before divorce initiated and the controversial issue (EEA national was in UK during those 3 years).
Not everything can be clarified by law, this is something POLICY area. I understand the logic how can you be expected to have evidence from ex when u split up. However, HO has point too. To summarise, post marriage total 3 years, one must be in UK, but what if EEA national leaves UK PERMANENTLY or make his permanent residence in his own country before 3 years have passed after marriage? I opine this is something depend on interpretation. If in favour of applicants, then we have to say literal meaning that 3 years total post marriage with one year in UK, and IT DOES NOT MATTER IF EEA NATIONAL HAS LEFT UK PERMANENTLY OR MIGHT HAVE LEFT UK PERMANENTLY BEFORE 3 YEARS LAPSED AFTER MARRIAGE.
Juv, Certificate of Approval has no link at all with your ex, but it has link with your present partner. So HO wouldn't ask for ex's details when you apply for COA. Yes it is better to send afidavits and other inf in advance when applying for COA (HO website has relevant inf). If you can marry in Church of England then no need of COA. Marriage not finished until you got decree absolute, so wait until you receive decree absolute before applying for COA. After House of Lords decision in case of Baiai and others (R on the application of) v SSHD [2008] UKHL 53, there is no basis of CAO but HO like £295 per person coming in in the name of COA.
Whether you need to go back to your country even if you get COA. It is depend if HO accepts you have leave to live under Right of Retention from previous relationship. If HO does not accept you have Retention Right, then it MUST consider whether you have STRONG TIES with this country before asking you to apply from your home country (as a decision of House of Lord last year). I understand you would be thinking what is the best option in current circumstances. I will answer my opinion in next post.
Last edited by
shandave2001 on Sat Mar 21, 2009 9:56 pm, edited 1 time in total.
). 
What do you think? Any chance of getting it?