10 Years Long residency ILR for EEA2 Holder

[shahinlondon]

My story is as follows

Enter in UK as a International Student on March 2001
Got Married to EU National on August 2006.
Got my 5 years EEA2 on October 2007
EU National Left me without applying Divorce on Jan 2008. In fact we are still married but soon I will divorce her.
In March 2008 I started to live with another EU National without informing the Home Office about my situation.
In March 2009 we both had a Baby which is now above 20 months old.

Can I apply for ILR on the basis of 10 Years Long Residence on March 2011 without giving divorce to my Ex?

I am very confuse in fact and don't know from where I have to start.

Shall i divorce her and get married to my new EU partner with whom i have a EU national baby or i just need to apply for ILR.

Thanks very much for reading my post.

[Stefan-TR]

Can I apply for ILR on the basis of 10 Years Long Residence on March 2011 without giving divorce to my Ex?

Have a look at heading 2.3.8 in Chapter 18 of the Immigration directorate instructions. It deals with EEA periods and ILR applications under the long residency rule:

During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.

So there can't be any guarantees, no matter how your current status is (divorced, not divorced etc.), whether your EEA periods will be counted towards an ILR application or not. It's probably safest to wait till August 2011 and acquire Permanent Residency under the EEA rules. If you divorce in the meantime, then you should show that you have the retained right of residence. If you don't divorce and your spouse cooperates with you, you should be fine as well.

This all assumes that your EU national spouse is still residing in the UK and was exercising treaty rights at least up to the point where you obtained the retained right of residence. Otherwise you're in the UK illegally already...