Eu family member seperation

chetan3985 · Post by **chetan3985** » Sat May 21, 2011 9:58 pm

hi, i have married to latvian national in feb 2010. i received a fmrs visa on that basis in september which was valid till feb 2011. but before i can apply for eea2 me and my wife got seperated. so i applied for student visa but they rejected it on the basis that i cant switch the visa inside the country. now the have given me a right of appeal but i am really worried that can i retain the rights of residence in uk on the basis of marriage as we have not started the divorce procedure yet, so legally we are still married even we are not staying together. but my wife is working at the same place as before in london, but dont want to be in touch with me! pleas help me in this topic.

thank you

humsafer · Post by **humsafer** » Sat May 21, 2011 10:59 pm

hi cheaten
sorry to hear that my situation is also as same as like u but i difference my wife is in touch with me and she is willing to copmlete my time period for now but i m not wat will happen later
i m also waiting answer from some 1 regarding this matter
wish u good luk for ur future

Post by **Obie** » Sat May 21, 2011 11:19 pm

If she is present in the UK and working, then you qualify for a Residence Card, up until the divorce is issued. You could apply for a court summons and get her to attend the tribunal to prove her employment status if she is unprepared to provide this information willingly to you. If however the marriage was to break down by means of divorce before 3 years of marriage, then you will not qualify for retention of residence.

They are quite right, you are not allowed to switch from Residence Card to Student visa, if you don't have a existing leave to remain in the UK .

humsafer · Post by **humsafer** » Sun May 22, 2011 1:01 am

Thanx for replying Obie,
yes she is in the UK. AND working. Actually she is willing that i get the resident card after i send my eea2 form on 12 may 2011 to home office but she do'nt want to live with me and want to b a separated but problem is she is trying to threatening me form different ways like if i do'nt fulfill with her demands then she wud call to HO stating she want divorce from me i do'nt know wat to do?
i understand that before the completion of 3 years marriage here in the uk i can't apply for retention of residence
another thing is that i wana know the marriage period starts from the day when we got married in registry office?
Thanx a lot

Post by **vinny** » Sun May 22, 2011 1:19 am

humsafer wrote:the marriage period starts from the day when we got married in registry office?

Yes.

See also PM (EEA - spouse - 'residing with') Turkey [2011] UKUT 89 (IAC) (07 March 2011).

humsafer · Post by **humsafer** » Sun May 22, 2011 2:43 am

Thanx a lot vinny
one another question i want to ask,
how long divorce process takes exactley. i heared it takes 6 months.
before the process time of divorce finishes do they count this period in 3 years marriaged period? according to EU law
thanx for lot

chetan3985 · Post by **chetan3985** » Sun May 22, 2011 4:31 pm

thank you very much obie, for this valuable information.

actually as i still have the appeal in court, about my refused student visa on 8th of june. so what if they reject my appeal and will give me notice to leave country in 28 days. in that case can i still follow the way you shown me? and plus my wife is is staying with somebody and she dont even want to see me or not even wanna keep in touch with me, so how can pull her to court? and to whom i should write regarding this?

thank you very much

chetan3985 · Post by **chetan3985** » Sun May 22, 2011 5:52 pm

thanks humsafar!

Post by **Obie** » Mon May 23, 2011 1:15 am

With the student visa i am not sure how you can win that, because if you are claiming to be a family member of an EEA national, which i think you are, then you don't require a leave to remain, if your spouse is exercising treaty rights in the UK. If however you have been continuously studying and you cease to be a family member of a qualified as a result of departure of the union citizen from the host state, then you could argue that it is unreasonable, for you to live your studies and go overseas to reaply, when you acted lawfully through out and held a valid leave until you became free of that requirement.. I am sceptical this might succeed at a tribunal, but it could on Judicial review.
You have to know where your spouse resides, then apply for a witness summon under regulation 50 of the immigration and asylum tribunal (procedure) rule 2005 for her to give evidence in court regarding her treaty right. You will be oblidge to pay the expenses of her appearance. I believe that might work to help you secure you Residence card until divorce is finalised. If that is the direction you intend on taking.

chetan3985 · Post by **chetan3985** » Mon May 23, 2011 12:32 pm

thank you very much obie,

you are absolutely great! i will proceed it as u have advised, by any chance if you can take my case, it will be a great pleasure!

thank a lot again

Post by **Obie** » Mon May 23, 2011 6:24 pm

I don't think you will have a strong case applying for the Student Visa, in my Opinion. You are required to have a valid leave to remain before making such application.

Your option is to either to submit a new application for Residence card, but as you don't have much evidence, i don't believe that will go far.

Under the Tribunal procedure , you can bring in the EEA rights, and the application for summon, all of which will have to be assessed. She will then have to attend court to give evidence about her activity in the UK.

The important thing is knowing with certainty where she resides.

If however you have proof of her continued exercise of Treaty rights you can take that to court.

Post by **Directive/2004/38/EC** » Mon May 23, 2011 7:19 pm

Obie, and the OP

It is also worth keeping in mind, for when you need to prove that your separated or divorced spouse has been exercising treaty rights and you are not communicating well with them:

http://freemovement.wordpress.com/2011/ ... ean-cases/

there is a power for the UK Border Agency to obtain a personâ€™s National Insurance and other HMRC records if they so want, under s.40(1)(j) of the UK Borders Act 2007

There is also a followup at http://freemovement.wordpress.com/2011/ ... rden-post/

chetan3985 · Post by **chetan3985** » Tue May 24, 2011 8:45 am

as i have her address where she resides, so how can call for tribunal process? i can proceed it in same student visa appeal? or i have to file a separate case to show that she is exercising her treaty rights ? and by any chance can they trace her work records by her NI number?

thank a lot again

chetan3985 · Post by **chetan3985** » Tue May 24, 2011 9:41 am

thanks for the link directive 2004!

chetan3985 · Post by **chetan3985** » Tue May 24, 2011 11:43 am

and if i send her summon, then as we are separated will court ask us to start divorce proceedings asap? because if they ask to do so, then i may have problem in completing my 3 years with her and that may create a problem for applying for my Permanent residence in future! and lets say if we start our divorce proceedings after 2 and half years of marriage then it will at least take 12 months to receive decree of absolute, so in between that procedure in will finish my 3 years of marriage, in this case can i still apply for permanent residence before divorce is finalized?
and if by any chance if i got divorced before 3 years, then can i marry other girl in uk while being in uk?

Post by **Directive/2004/38/EC** » Tue May 24, 2011 2:55 pm

chetan3985,

You need to be very careful and not do anything foolish. As you are making decisions, you are best off talking with a professional lawyer who knows the law and knows all the details of your situation.

You are presently married and your wife is working in the UK, so I am not sure what you are thinking of changing and why.

The issue is "how do you prove your wife has been working", e.g. when you later apply for PR or you later get divorced, and you are not communicating with her. At that point you will need a lawyer and your lawyer will be able to request UKBA access the information, or your lawyer can call you (ex?) wife as a witness. Give them a printout of this thread as some of the links are something they may not be familiar with.

An updated link for the shared burden is http://freemovement.wordpress.com/2011/ ... rden-post/

p.s. I have never heard of a court asking a couple to get divorced. One or both of the married partners need to apply for a divorce.

chetan3985 · Post by **chetan3985** » Thu May 26, 2011 7:09 am

thank you very much guru directive,

thank you guys for giving these brilliant ideas.

Post by **Obie** » Thu May 26, 2011 12:26 pm

You will ultimately be fine. I believe you will need to abandon the Student Visa appeal, as i see very little prospect of success in it, as the First Tier Tribunal has no power to overturn the Immigration rules, which states you have to have a valid leave to remain to obtain an extension of student visa.

Like directive suggested, no court can compell you to have a divorce. It would have to be at a time that you find appropriate. There is a possibility she will be prepared to supply the evidence voluntary once she has seen the court summon. In any case, she cannot lie in court, that she is not working, when she is. All the court needs to satisfy themselves, is evidence, be it oral or documentary that she is working or exercising treaty rights in other capacity, and that your marriage has not legally ended.

I wish you the best for your future. If you solicitor is not familar with the rules, then seek another one.

Post by **Directive/2004/38/EC** » Thu May 26, 2011 2:44 pm

chetan3985,

You may also find that, when the time comes that you need the proof your wife was working, that your wife is quite willing to help you with the documentation. People you have been involved with can be genuinely helpful! (plus it will save her time and effort to do that).

chetan3985 · Post by **chetan3985** » Sun May 29, 2011 6:51 am

thank you obie guru,

it is really a great help by you for me in the case! i found a lawyer who is going to refer the case of diatta in here, and i already have forwarded this thread to him so that some of the important points can be helpful for him to prepare the case.

but however it is really been pleasure to get such a valuable info and hope from you.

thank you very much again.

chetan3985 · Post by **chetan3985** » Thu Jun 02, 2011 10:45 pm

hi

is it possible that i can provide her work phone to court, and they can call and ask the employer about her employment?

Post by **Directive/2004/38/EC** » Fri Jun 03, 2011 12:31 am

chetan3985 wrote:is it possible that i can provide her work phone to court, and they can call and ask the employer about her employment?

No. Best is that you get your ex to give you the information directly. And otherwise you will need to get lawyer to help you get the information.

chetan3985 · Post by **chetan3985** » Fri Jun 03, 2011 11:37 am

yes, as she is not willing to co operate any thing with me, my lawyer is requesting the HMRC to get her summon to be present at court to give the evidence of her work, is it better to send the summon directly to at her workplace than at her home? because if she neglects it then court may think that she is not present is country?

Post by **Directive/2004/38/EC** » Fri Jun 03, 2011 12:06 pm

chetan3985 wrote:yes, as she is not willing to co operate any thing with me, my lawyer is requesting the HMRC to get her summon to be present at court to give the evidence of her work, is it better to send the summon directly to at her workplace than at her home? because if she neglects it then court may think that she is not present is country?

Your lawyer should be able to answer this question. Why is this with HMRC rather than with UKBA?

chetan3985 · Post by **chetan3985** » Fri Jun 03, 2011 12:54 pm

because i have the appeal which is going to be in court (on my appeal letter it states hmrc)

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Eu family member seperation

Eu family member seperation

thank you obie

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