Non-EEA spouse of EEA undergoing divorce, with UK absences

[eeaman01]

I am an EEA citizen (one of the A8 states) exercising treaty rights in the UK married to a non-EEA female national (one of the West African countries) but going through divorce at the moment (the category of grounds used was 'unreasonable behaviour', in our case being that the two two of us pursuing separate social lives, which isn't compatible with my idea of a marriage). I am looking for advice on how to best proceed (EU route or non-EU route) to satisfy my goal:

GOAL: Make it as simple and as quick as possible for her to end up not needing me for anything immigration-related in the future, ever, regardless of whether we patch it up or complete the divorce.

Here are all facts presented as a timeline:

Past:
Oct 2004 - she came to the UK on visitor visa, left shortly
Nov 2004 - she came back to the UK on visitor visa (the visa sticker says: issued Sept 2004, valid until Mar 2005, multiple entry, 180 day, type C)
Aug 2005 - I came to the UK and immediately started exercising Treaty rights in the UK - as a job seeker
Aug 2005 - we met (i.e. she was already an overstayer before we met)
Oct 2005 - I continued exercising Treaty rights in the UK - as an employee (after spending Aug & Sep 2005 job-hunting through agencies)
Dec 2005 - we moved in together (cohabitation started)
Sep 2006 - we got married (Church of England), after obtaining a license from the church
Feb 2007 - her Residence Card issued (after applying using form EEA2), valid until Feb 2012. They discussed her overstayer status with us at an interview in person but they didn't say anything.
Aug 2010 - I completed 5 years of exercising Treaty rights, i.e. automatically became a permanent resident (I had no absences from the UK, I have been in continuous employment)
Mar 2011 - we filed for divorce
Apr 2011 - she left the UK
Jul 2011 - judge pronounced Decree Nisi
Nov 2011 - my Permanent Residence document was issued (after applying using form EEA3)

Future:
Nov 2011 - she will come back to the UK
Feb 2012 - her Residence Card will expire
Dec 2013 - her passport will expire

I have not applied for Decree Absolute yet and the divorce isn't final until then, so technically, we are still married. We also live in the UK at the same address.

Notice the complication implied by the above timeline is that when she comes back to the UK this month, she will have spent nearly 7 months in total outside of the UK this calendar year and she is planning to go abroad again. (Her prior calendar years' absences are all below 6 months.)

Her this year's absences, however, were all for the purpose of conducting paid work in the media (on a freelance, not employee basis, plus the agency she uses is not a UK company).

I am not sure if these absences can be forgiven for purposes of immigration rules that apply in her case. I understand that her activity abroad does not exactly help show ties to the UK...

Plus, she has to travel out of the UK again for another media gig, so she will likely not come back to the UK until after Christmas again. She is committed to staying the UK in the long run but her media work isn't performed in the UK. And one has to make a living somehow, even if it means absences from the UK. She considers UK her primary residence.

1. What should be the next step for us?
2a. Given we are still technically married, can we just go ahead with an EEA4 permanent residence application for her?
2b. If so, can we claim her time outside of the UK as exempt? (She has evidence of work assignments being done abroad through contracts and media publications. Note: She has never filed tax returns in the UK.)
3. I know that since I've spent more than 1 year in permanent resident status, I am eligible to apply for naturalization to become a British citizen. I am willing to do that, if needed, or if it makes things easier or faster for her. Should I do it? Will that help us achieve my goal or speed anything up?
4. Does the filing for divorce or issuance of the Decree Nisi mean she must take some action ASAP (e.g. report it to UKBA or re-file anything)?

Thanks.

PS: I've got meticulous documentation of all facts, kept originals of everything. (Except for her past travels, which we are planning to reconstruct by writing a SAR to UKBA and to the airlines she used to travel.)

[Kitty]

She is the family member of an EEA national until your divorce is final. I think it's worth applying for confirmation of PR on the basis of the period September 2006 (date of your marriage) to September 2011.

You may encounter problems with absences from the UK as the guidance is 6 months in a year except for one absence of up to 12 months for something significant like childbirth, vocational training etc. (it's in the guidance on the UKBA website).

Still, worth a punt I think. What are the dates of her other absences within that timeframe? The fact that you were cohabiting from 2005 doesn't give her rights for that period, but could be the basis of an argument that discretion should be used to confirm PR despite an absence over 6 months.

As long as you have PR and the divorce is not final she should be permitted to reside in the UK, so as an alternative to PR she may get a Residence Card. After the divorce is finalised, she could then apply for confirmation that she has a retained right of residence, which may lead to PR after 5 years' continuous residence. Again, her absences from the UK may be problematic in that she could have to spend another 5 years building up a "continuous" period as a person with a retained right of residence (and she would have to be doing the equivalent of exercising treaty rights within that time).

[eeaman01]

Thank you. I am still in the process of documenting her other absences and counting the days but I was really hoping we can wiggle our way out of them somehow. From what you are saying though, it seems like one cannot wiggle their way out of an absence in general?

After all, the UKBA guidance lists study, vocational training, childbirth, etc. only as examples of an "absence for important reasons". Maybe there are other reasons that could be treated as "important" enough?
In the media business (though arguably in other industries as well), it's very hard to make a break but once you do, it usually requires sticking to it for a while to capitalize on the momentum. Could a unique career oportunity like that in her case be used as an "important reason" for an absence?

I am not against giving it a shot - and we probably will (unless some other route exists for us) - as you suggested, utilizing the appropriate start date of the 5-year residence period. However, if the punt doesn't work and her application is rejected, would denial of her EEA4 application for PR prejudice the UKBA to treat her with more suspicion next time around when she applies?

[Kitty]

Well, as you say, those are guidelines. There is a requirement in the Regulations (and in the Directive) that residence has been "continuous", and the Regulations (again, mirroring the Directive) provide that continuity is not broken by absences of up to 6 months per year, or one absence for an "important reason".

If your wife has only one absence of over 6 months in her 5-year history, then I think it's worth making the application. If her application is made with reference to September 2011, the her current absence is arguably not 6 months within the year September 2010 - September 2011 (but that depends on whether she was also out of the country between September 2010 and April 2011).

She could appeal against a refusal, either because her absences are within the allowable limit, or on the basis that discretion should have been exercised in her favour. I think the overall total and pattern of her absences could well be relevant here.

The mere refusal of an application for confirmation of PR status should not create "suspicion", especially if the only issue is a discretionary one. If she has legitimate grounds to apply again at a later date then that application should be assessed on whether she factually meets the requirements.