EEA4 or Retained right of residence

[crowngirl]

Hello all,

this is my first post since joining the forum, so im quite new to the forum
i will please need advice regards my case as i am quite confused, i will explain my situation as well as i can.

i got married to my EU husband in december 2009 and was granted a RC dated march 2010 till march 2015, my husband(now ex), and i got seperated in september 2013 and divorce proceeding started not to long after that in which the marriage was finally dissoved in june 2014, i went to see a solicitor and was advised to apply for a permanent residence in june 2014 (although i mentioned to her that i felt it was a bit too early), my application was refused in september 2014; reason being that i did not provide enough evidence to show that my ex husband was exercising treaty right as at the time of divorce, with a right of appeal in april 2014 (which i attended a week ago, and i provided all the relevant document showing my ex husband in continous employment throughout the marriage until divorce and also my own proof of employment till date,at the time of appeal my 5years residence card was already expired, which means i have completed the 5years), during the appeal case my barrister kept telling the judge the basis we were at the hearing was to appeal for a retained residence and not permanent residence because i was not in the marriage for up to 5years and in the refusal home office indicated in the refusal letter that although they have considered a retained right of residence but i still do not meet the conditions because of insufficient evidence of my ex exercising treaty rights.
the judge actually got confused at a point and requested for a 15mins break because she doesnt think she has the power to consider the possibility of retained right of residence since application was for permanent residence,
Now my question is im not to sure about the outcome of the appeal (im hoping Gods grace is allowed) but incase its the other way round, if i need to make a new application considering i have completed the 5 years RC but marriage only lasted just over 4years, should i apply for a permanent residence or a retained right of residence?
i will please be grateful if members of this group with good knowledge of my circumstance or with similar experience are able to help me with an advice. thanks

[Obie]

Talking about lawyers who inadvertently or deliberately lead a judge to the point of misdirection in law, I believe your barrister will certainly win an award in that department.

The Judge was very correct, that he or she in accordance with Section 85, has to deal with the matter, taking into account changes that has occurred since the application was made.

Whether your lawyer knows the law or not, is something i don't understand, but he was seeking to confuse the judge, who was clearly on the right path.

The Judge was required to deal with the PR matters, and you meet the requirements on the day of the hearing.

[crowngirl]

Thanks Obie, I'm grateful for the response, now I'm just hoping the judge takes her time to revisit the case and not follow the confusion.
I will keep my fingers crossed for a descision from the judge and seriously hoping it's allowed, if not I will make a new application for a PR as you have indicated, will keep the forum posted. Many thanks

[hunk_cool]

hi crowngirl, i have quite similar case..could you please let me know what happen after this..
thanks

[noajthan]

hi crowngirl, i have quite similar case..could you please let me know what happen after this..
thanks

Member last visited 9 months ago and only posted twice.

[crowngirl]

Hi sorry guys been a while i visited, in reply to your question i won the appeal and the judge indicated i should be given a retained residence but when i got my passport back from the home office after months of waiting, i was given another 5 years EEA residence card, same as what i had before, more confusion, i am thinking of reapplying but very worried as i don't wish to go through what i went through with them again.
Anyone with ideas of what i can do?

[Obie]

If you met the requirements and was refused, then it is no fault of yours, any future application should not be prejudiced.

[Wise]

All i will say is congratulation to you at the end. If you know you can provide all the relevant treaty right of your ex throughout your marriage,up till the time decree absolute was issued you may re apply with well cogent letter but if you know there was a gap in those year my humble advice is don't try it.

Second option,

Count another five years from the date your decree absolute was issued that is June 2014 till June 2019 and apply for PR in your own right and that will never fall provided you are in employment all through. But as Brexit is still around the corner I hope that there will be a transition arrangement for all the RC issued for non eu family member before UK finally exit the EU.

Good luck

[crowngirl]

Thanks a lot for the reply obie and wise, i have all the proof my ex was exercising treaty right at the time of divorce (no gap since we got married) and that we lived together for over 3 years and also i have been in employment before the marriage/divorce till date.
i provided all these evidences at the time of my previous application and i was still given another 5 years (no idea why?), I'm thinking of applying for a permanent residence now but to be honest I'm scared lol, i probably need an encouragement as i went through a lot in the process of my last application, and considering the brexit move as mentioned by wise i think the best idea is to apply for a permanent residence as soon as possible, what do you think please?
Many Thanks

[Wise]

To be honest with your the so call barrister spoil the whole case by fighting for what HO themselves has confirm that you qualify for Right of Residence and also given you a nice second chance to appeal in court which you did and he still messed up.I did have concern why HO did not put that ROR in your passport if they agree that you qualify for it, but did the barrister told you why he was asking for retained right in court in the first place? because what I think was to first secure you permission to stay in UK and then first for your PR later. My experience is a bit different as I ask a lawyer to write to my caseworker to correct my ROR to PR and he did get back and said I should send all my paperwork back that he admitted there may/not be error on his side,but I choose to follow my dream on my own right as I don't have enough treaty right of my ex because there was a gap in her employment toward the last year of our marriage.

On a positive note, whatever you choose out of the two options I gave, nothing can take away your Right of Residence away from you as long as you are in employment am confident on that,any other application will only be refused if you don't meet the requirement and as you have explained that you have all the evidences to show all the treaty right you will should be fine.Again you may go back to your lawyer to help you present it again with cogent letter and proof.

Moreover,what you could have done at the time of your refusal was to re-present your application with enough evidence and not going to appeal you could have secured PR by now,but we all learn from our mistake.

NOTE.you have been tested in court legally/financially but you've won, this time look for a good lawyer and you have the last laugh

Good luck

[crowngirl]

Thanks a lot, i knew the barrister messed it all up, i probably will get a good lawyer and then apply for a permanent residence. wish me luck and will keep u guys updated.
Many thanks again