Article 12-13 of the Directive 2004/38 EC

[rastica]

Hi there

I just found out on this forum about the Article 12-13 of the Directive 2004/38 EC - I am wondering if this can help me in my case?

- Canadian, moved to the UK in 09/2005 with my partner of 1.5 years at that point - he is Italian/Canadian so had right to be here and I was on holiday working visa

- Switched to unmarried partner of EEA national status in 11/2007, after my HW visa expired and we had proof of 2 years residence

- Relationship is now in trouble and we are likely going to split... I am looking for options to stay without a visa through him.

Can the Article help in my case to stay in the country (I've been here for almost five years and my life is here!), and if so, do I definitely need a solicitor to use it (i.e. does it have to be opened in court, or what is the process)?

Thanks

[Wanderer]

Hmm difficult one.

I don't think unmarried partners can benefit from retention of rights but wait for others....

[Ben]

The unmarried partner of an EEA national is unable to retain the right of residence, I'm afraid.

If you do not split, then from what you have said and in accordance with The Immigration (European Economic Area) Regulations 2006, you will acquire permanent residence in the UK in March 2011.

[rastica]

Thank you for the answers - not great news but helpful to know.

I'm confused though about this:

If you do not split, then from what you have said and in accordance with The Immigration (European Economic Area) Regulations 2006, you will acquire permanent residence in the UK in March 2011.

Why March 2011? Seems a random month and I thought it was 5 years excluding my working holiday visa years - I was expecting it to be 11/2012? And would this be through an EEA4? If we do manage to scrape through to that date, I'm not sure he would give me his documentation for an EEA4... its a bit of a sensitive topic at the moment! Are there other ways I can prove this acquisition of permanent residence?

[rastica]

Thank you for the answers - not great news but helpful to know.

I'm confused though about this:

If you do not split, then from what you have said and in accordance with The Immigration (European Economic Area) Regulations 2006, you will acquire permanent residence in the UK in March 2011.

Why March 2011? Seems a random month and I thought it was 5 years excluding my working holiday visa years - I was expecting it to be 11/2012? And would this be through an EEA4? If we do manage to scrape through to that date, I'm not sure he would give me his documentation for an EEA4... its a bit of a sensitive topic at the moment! Are there other ways I can prove this acquisition of permanent residence?

Ah wait I just figured it out - March 2011 because that is when we'll have been living together for 5 years. That's interesting, didn't know that. Still curious about my second question though, about proof of acquiring permanent residence.

[Directive/2004/38/EC]

The unmarried partner of an EEA national is unable to retain the right of residence, I'm afraid.

Ben, why do you say this?

[Ben]

The unmarried partner of an EEA national is unable to retain the right of residence, I'm afraid.

Ben, why do you say this?

There is provision in the Directive for family members to retain the right of residence upon the death or departure of the Union citizen, as well as for spouses on termination of the marriage. However, there is no provision in the Directive for beneficiaries (§ 3(2)) to retain the right of residence, since beneficiaries do not have an explicit right of residence, rather they have the right to have their entry and residence facilitated.

[Obie]

Once an Extended Family member or Other family member in accordance with Article 3 (2) of Directive 2004/38EC has acquired a Residence Card, they then become a family member and are awarded rights equal to or on par with that of other family members. That is the interpretation of UK law.

In regards to retention of rights of residence, there are 3 seperate categories.

1. All family member, whether direct or extended , retain their rights of resident in the event of the death of the union citizen, provided they meet the conditions for retention under that category.

2. Former spouses of a Union citizen, retain their right of residence , if they meet the condition that they have been married for 3 years, and that at least one of those 3 years have been spent in the host memberstate, and that in the period leading to the divorce being initiated, the EU national was exercising treaty rights.

3. Children of migrant workers or former migrant worker, as the case may be , retain their right of residence once they have been installed in a member state and been enrolled in the state's education system, for the duration of their studies, as provided in Article 12 or Regulation 1612/68. That rights is independent of the EU national exercising treaty rights, or residing in the host member state.

Therefore it is not strictly speaking right that extended family members cannot retain their rights of residence. They can under 1, if the EU national they depend on dies, or under the 3rd category, if they are the mother or father of a child under 18 or still dependant, exercising a right to education in the host memberstate, by virtue of Article 12 of the above regulation.

Within the context of this thread, the OP cannot retain his right of residence, except he has a child with the EEA national, and claiming right of access to that child in the UK, and a UK court, has ruled that the contact with that child should take place in the UK, or the child is in education in the UK.