strange situation any advice appreciated

[murphy]

So my situation is somewhat unique I think, not that I'm the only one, but there can't be many, and it is difficult to find information about. Any advice you might have would be greatly appreciated, I've spoken to lawyers at legal drop in clinics but always found the best advice here.

I married a polish national feb 09, I am american. We married in Gibraltar and I entered the country on an EU Family Permit in April 09. I got my Residency Card June 10. She had one daughter from a previous marriage, we developed a father/daughter relationship, we then had a son in Oct 10. In April 12 we separated. I mean I didn't sign anything but she separated from me for the purpose of applying singly for WTC in the new fiscal year. We split the childcare relatively evenly. I pick them up from school friday and take them on monday, looking after them in between. during holidays I have the longer, especially summer holidays, and that's every weekend not every fortnight. I also have been picking my son up from his mother's house every morning to take him to school as she is 2 hours late weekly otherwise, though right now we are trying her taking him again as I had to move to south london (she lives in hackney). At school I accompany his class on school trips. My daughter comes to my house every weekend also, but she's a teenager and if I took her to school or came with her class on a trip she might actually die of embarrassment. My kids are polish and polish/american. My son is in year 1 and daughter year 10.

My wife (we are still married) refuses to give me the papers I need to stay in the country (really just hmrc records and national insurance contribution receipts, though profit/loss forms and invoices would be useful too). It's a power thing. I've tried for years to convince her in many different ways. It has taken me so long to ask for help because it feels quite shameful that our relationship has deteriorated to this point. But there it is. I was meant to apply for PR, and can prove she is excercising her treaty rights while we were together but not after. Judges can access hmrc/ni records without the persons approval, but only in cases of domestic abuse iirc. I don't fit zambrano, and I think not chen because my wife can remain in the country? Which is not to say it would not be detrimental to him for me to leave, I might be able to get a letter from the school and a social worker saying so. It seems I should be allowed to live/work in the country as part of my son's rights somehow but I'm not sure if that's true.

There is a tangential issue I should mention as it may affect my own, she is self employed getting WTC and CTC, and in the 5th year of our marriage her WTC got suspended as they questioned something about her employment. They acknowledge she is working enough hours but that she is not getting paid enough for those hours. Though they asked her to bring a selection of invoices and the next judge judged the selection as if that were all her invoices, and she is still appealing because of this. Her WTC was suspended but not her CTC.

In the meantime I've been trying to negotiate with his mum but that goes nowhere, has done for years. My residency card expired in July. We are still married. This puts me in an awkward though not illegal position, if I understand it right I am like someone who has entered on an EU Family Permit but not recieved his COA. I can work legally but do not have british recognition of that right. Which makes it difficult to get a job, not being a resident. An agency called me last week, one I had worked for before, and offered me some work starting yesterday. I went and got sent home halfway for not being a resident. Agency called UKBA today and got told this:

Spoke to UKBA, told me that unfortunately you won’t be able to work until you resubmit your application and get a letter from them confirming that you can still working even it is still under process

Any help is appreciated, sorry if I forgot to provide some information, I can answer any questions over any confusions.

[noajthan]

So my situation is somewhat unique I think, not that I'm the only one, but there can't be many, and it is difficult to find information about. Any advice you might have would be greatly appreciated, I've spoken to lawyers at legal drop in clinics but always found the best advice here.

...

Any help is appreciated, sorry if I forgot to provide some information, I can answer any questions over any confusions.

See this HO guidance regarding applicants for RC who can't provide adequate evidence - maybe something in there that can help:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 31+

[murphy]

Unless I'm mistaken, I think that doesn't apply to me as I haven't retained the right of residence because I'm not divorced? Ideally I would like to be able to apply for permanent residency, as I've been here long enough. I'd like to be a citizen, in a year rather than 6.

On page 31 it says they can access records in cases of domestic violence AND an acrimonious relationship, assuming I'm wrong and this does apply to me, is this true in practice? I remember reading the forum back when our relationship deteriorated and thought i remember someone trustworthy like vinnie or someone writing that it is only in cases of domestic violence with a police report. though if that was the case hopefully it has changed.

thanks for responding though, it's difficult/confusing/nervewracking to slog through this myself and I find legal clinics not to know so much about eu law, can't afford an actual lawyer. I always found the advice on this forum to be most helpful

[noajthan]

Unless I'm mistaken, I think that doesn't apply to me as I haven't retained the right of residence because I'm not divorced? Ideally I would like to be able to apply for permanent residency, as I've been here long enough. I'd like to be a citizen, in a year rather than 6.

On page 31 it says they can access records in cases of domestic violence AND an acrimonious relationship, assuming I'm wrong and this does apply to me, is this true in practice? I remember reading the forum back when our relationship deteriorated and thought i remember someone trustworthy like vinnie or someone writing that it is only in cases of domestic violence with a police report. though if that was the case hopefully it has changed.

thanks for responding though, it's difficult/confusing/nervewracking to slog through this myself and I find legal clinics not to know so much about eu law, can't afford an actual lawyer. I always found the advice on this forum to be most helpful

What you have outlined certainly sounds challenging & acrimonious; (violence doesn't have to be physical).

I realise you can't / don't want to apply RoR (& are not divorced).
I posted the guide to give an idea of what may be possible.

If HO can apply a certain degree of flexibility & proactivity for one type of EU document (for RoR) I don't see why they can't be encouraged to do so for a 'confirmation of PR' application.

You should be ok with your documents (eg identity), hopefully you can prove your marital relationship (note: co-habitation is not mandatory in EU applications); also proof of your residence in UK.

The challenge is clearly with proving spouse's exercise of treaty rights & etc.

Suggest gathering what evidence you can & enclose a cogent cover letter explaining your circumstances, quoting the guidance & see what may be achieved.
Worst case you are risking, what is it, £50-£60.

[murphy]

Is that the worst case? One lawyer I spoke to advised what you say, and said it would likely be refused, but then after I could go to the first tier tribunal where a judge may be more understanding or might access her records due to it being acrimonious. If I lose, can they ask me to leave? Or as long as I'm married and she's excersizing rights I can stay? And regarding what ukba said to my agency boss, isn't that incorrect? is there something saying that somewhere I can show to him?

thanks!

[noajthan]

Is that the worst case? One lawyer I spoke to advised what you say, and said it would likely be refused, but then after I could go to the first tier tribunal where a judge may be more understanding or might access her records due to it being acrimonious. If I lose, can they ask me to leave? Or as long as I'm married and she's excersizing rights I can stay? And regarding what ukba said to my agency boss, isn't that incorrect? is there something saying that somewhere I can show to him?

thanks!

Under EU law (Directive 2004/38/EC), as long as you remain married to EEA national and they are exercising treaty rights in UK, yes, you can reside in UK; you can also work &/or study.

A RC is optional & having a valid one 'only' confirms those rights - you have the rights anyway.

... family members” (as the Directive states) “enjoy an automatic right of entry and residence in the host Member State” when they are with their EU citizen relative

- "with" as in: in UK

Ref: https://eumovement.wordpress.com/2008/0 ... ly-member/

I think what that agency boss &/or UKBA said is misleading & wrong.

The problem is employers will want to see a COA or RC as proof they are not in breach of UK's punitive legislation if they employ an illegal worker.

See https://www.freemovement.org.uk/sponsor ... dismissal/

BUT as per Article 25 of the Citizens’ Directive:

Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

[murphy]

Ok, thanks. That puts me more at ease. I guess I just apply with what I have then. Makes me a bit nervous still. I have a room in the family home of a friend,, I don't pay rent, they own their home and just let me use a room. So no tenancy agreement, would a letter from them explaining the situation be enough as proof of residency? My bank statements come here.

[noajthan]

Ok, thanks. That puts me more at ease. I guess I just apply with what I have then. Makes me a bit nervous still. I have a room in the family home of a friend,, I don't pay rent, they own their home and just let me use a room. So no tenancy agreement, would a letter from them explaining the situation be enough as proof of residency? My bank statements come here.

That kind of letter may help.

But you need to show 5 years residency in UK.

Passport with entry/exit stamps is good.
Bank statements help too.

Otherwise official documents eg employment & tax letters; local government letters; voter registration ( if you have voting rights) - that sort of thing.

[Obie]

Are you planning on getting back together? Otherwise you can seek divorce and apply for ancillary relief. That way you could request her taxes.

Otherwise you could ask UKVI yo exercise their right under section 40 of the UKVI act to check for this.

Some decent judges are helpful in thar regards.

I had a judge who recently issued direction in a case where the EEA nation divorced her husband during prison sentence and disappeared of the face of the earth.