Retained rights of residence

[AverageJoe230]

Hi all, sorry if this question has already been asked but any advice given would be hugely appreciated.
I met my wife from Colombia in July 2011 and she lived with me for 6 months before going home after her visa expired, then we managed to get her over here again in September 2012. At that time we were very much in love and got married in June 2013.
Unfortunately towards the end of last year we started drifting apart and after a few things she's done the marriage is well and truly over, so really the easy and probably sensible thing for me to do would be to get a divorce and leave her to make her own way.
Saying that I don't hold on to grudges and we've kept things very amicable and having spent a lot of time, effort and cash helping her get into a personal training career I still, despite the past, really want to see her get on with her life and be successful and happy.
Therefore, weak as it sounds, I don't want to divorce her if it means she is going to have to go straight back to Colombia which I know would devastate her.
So my question is, assuming we get past the 3 year post marriage mark, is the Retained Rights of Residence route an option available to her? It seems to me that it may only be available to EU nationals or have I got that wrong and the fact that I have always been working does that count as exercising Treaty rights? She has always worked too and never claimed any state help either.
Once again any ideas would be hugely appreciated, thanks!

[Wise]

If you youself is an EU national and you're working your job is the treaty right which is very important in this case.

Retained right is not for EU national, is for the non EU to allow them to stay in UK after divorce

Your wife, has she got Resident card before and if yes going through Retained right is the best option if you really want to help. Also you don't have to live together but your marriage has to be 3 years before you can start the divorce proceedings and very importantly you must still be working till you receive your divorce paper. Then she will retained that right of residence.

You have post your question in a wrong category, you should use EEA APPLICATION ROUTE CATEGORY .But the moderators may move your question anyway.

Good luck.

[Wise]

If you youself is an EU national and you're working your job is the treaty right which is very important in this case.

Retained right is not for EU national, is for the non EU to allow them to stay in UK after divorce

Your wife, has she got Resident card before and if yes going through Retained right is the best option if you really want to help. Also you don't have to live together but your marriage has to be 3 years before you can start the divorce proceedings and very importantly you must still be working till you receive your divorce paper. Then she will retained that right of residence.

You have post your question in a wrong category, you should use EEA APPLICATION ROUTE CATEGORY .But the moderators may move your question anyway.

Good luck.

[noajthan]

So my question is, assuming we get past the 3 year post marriage mark, is the Retained Rights of Residence route an option available to her? It seems to me that it may only be available to EU nationals or have I got that wrong and the fact that I have always been working does that count as exercising Treaty rights?

The 'sponsor' in this type of scenario needs to be an EEA national (not a UK citizen).
As a rule, RoR is not open to the dependent family member (spouse) of a British national.

And yes, working is one way that EEA nationals can exercise treaty rights.

[Casa]

@AverageJoe230 Assuming that you are a British national, what category of visa did you apply for and what date was this submitted? When does your wife's visa expire?

[AverageJoe230]

Hi all, thanks for coming back so quick with your thoughts, again it's really appreciated.

Hi Wise, my apologies for posting in the wrong section, I wasn't quite sure which was the right one. I was born a British Citizen and thought that the Retained Right of Residence is only available to a non EEA member which she is but I was confused as to whether it could be an option for her as all of the information stated that it had to be a non EEA spouse of an EEA national and whilst I think UK citizens are classed as EU citizens and EEA members I wasn't sure if we were also EEA nationals...if that makes any sense!

Hi Noajthan - Thanks I think you have answered the question then as if I am not regarded as an EEA national and the option isn't open to the spouse of a British citizen then that's the end of that idea! Seems a little unfair that EEA nationals seem to get a better range of options in the UK than UK citizens but who am I to argue?

Hi Casa - I am a British national and Jo first came over in July 2011 on a 6 month student visa as she was an English teacher back home and wanted to improve her English. I was then able to get her back in September 2012 again on a Student Visa by buying her a more advanced English language course (we didn't go for the Fiancees visa then because we wanted to spend more time together to TRY and make sure we wanted to stay together...didn't quite work out as planned) and then after we got married in June 2013 we obtained a spouses visa (July 2013 I think) which expires in December this year and which we are renewing.

I can and probably will of course officially stay with her, after looking after someone for so long it's kind of hard to not be protective, but of course that make life tricky for me for the next few years, especially if I meet someone else, so I was hoping this might be a way for Jo to be able to stay here and continue her career without having to depend on me.

[Wanderer]

You'll be on the five year route to PR then but if the relationship is not subsisting then you must do right thing IMO and inform the UKVI.

Otherwise there is always going to be the ever present threat of revocation of BC/ILR if obtain in the view of the authorities fraudulently.

Perhaps look at alternative routes? Another student visa? T2?

[Obie]

Perhaps the UK should consider abolishing it's subsisting relationship rule, to make it more consistent with EU law and Diatta.

But I agree that under UK rules she may not qualify for an extension .