Post
by dukkumeah » Fri Feb 04, 2011 1:18 am
Thank you Sjimoh112 for your valuable time and advice.
For your question 1 what law says is as below..
Regulation 1612/68 Article 7, Council Directive 2004/38 and Regulation 6 of the EEA
Regulations 2006 are the principal references.
1.1 Key points
• Under EC law a person from another Member State who is exercising Treaty rights in
the United Kingdom enjoys the same social and tax advantages as a British citizen.
• Under Directive 2004/38, an EEA national and his/her non-EEA family members may
reside legally in the UK if the EEA national is working or self-employed or has a right
of permanent residence. This is also subject to them not becoming a burden on
public funds.
• In some circumstances EEA nationals may claim public funds and retain their right of
residence under EC law (eg 'top-up' benefits for low-paid or part-time workers,
persons who are involuntarily unemployed etc).
• It is important to remember that the Home office does not decide whether an EEA
national qualifies for benefits or for local authority housing. We can only advise
whether an EEA national has a right of residence.
2. we are married but living separately. But European regulation doesn’t require the couple to live together for whole of their marriage life( minimum is 1 year)
3. It seems to me that if my wife doesn’t get PR and we live together , HO will give me 5 more years RC. According to the rules they don’t have any option as my wife is working and will do which again make her qualified person.
4. Just for your information and I want to be clear about the law. Please have a look below...
6. Retention of the right of Residence
Directive 2004/38 has incorporated ECJ caselaw such as Baumbast and Diatta to allow non-EEA nationals family members to retain the right of residence.
There are now a number of circumstances in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK or dies or the relevant marriage or civil partnership is terminated These circumstances are set out in regulation 10 of the 2006 Regulations.
6.1 Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership
person who ceases to be a family member of a qualified person on termination of a marriage or civil partnership will retain a right of residence if:
a1)the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and
b1)the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership, or
c1)the former spouse or civil partner of the qualified person has custody of the children or a right of access to the children in the UK, or
d1)there are particularly difficult circumstances (such as domestic violence) justifying the retention of the right of residence.
In such circumstances a family member retains a right of residence if:
(a) S/he is a non-EEA national but is pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national,
(b) S/he is a self-sufficient person, or
(c) S/he is the family member of a person in the UK who is either a worker, self-employed, or is a self-sufficient person.
See Regulation 10(5) of the 2006 Regulations for more information.
If I divorce now I can retain the right of residence as I meet condition a1,b1,c1 of 6.1 and a) I am employed at present.
On your answer of 4,5,6 I agree with you but worried if my wife changes her mind and doesn’t want to help me, Then I will have no way to go.
This is why I want to dissolve our marriage asap.
I really appreciate your advice and please don’t hesitate to write what you think about the points that I mentioned above.
Thanking you
Dukkumeah
