Retention of rights after divorce - Dilemma!

[Elf]

Hey everyone,

Just new on the forum, but not that new as I have spent hours reading the many, many topics on retention of rights following divorce.

To make it short, I am very aware of the 3 years marriage, 1 year living together and how it should work under the European Law.

But the big question is about the British Law as it contradicts itself in a few parts between the Immigration (EEA) Regulations 2006 - 10 .5.(b) - which states that the ex has to be in the country at the time of divorce and Chapter 5 of the European Casework Instructions that states the following:

5.3 Making an application following divorce or annulment of marriage / dissolution of
civil partnership
The following documents must be supplied:
• Passports of the non-EEA family members
• Divorce certificate/certificate showing termination of civil partnership
• Evidence that at least one of the non-EEA family members is a worker, self-employed
or self-sufficient.
If we have not previously issued a residence card we must be satisfied that the alleged
EEA national is an EEA national and that the non-EEA nationals were living in the UK
with the EEA national prior to divorce / dissolution of civil partnership, and that EEA was
exercising Treaty rights during that time.

So... Can anyone who has real experience or someone who has real knowledge of this help me... Does the ex-spouse have to be in the country exercising treaty rights at the time of divorce even if the non-EU member has an EEA2 residence card and also has proof of marriage for almost 6 years and both exercising treaty rights for more than 4 years? (both out of the country for one year so not yet eligible for Permanent Residence Card).

Both my marriage and the divorce have been in the country of my EU ex-spouse and she left the country at the start of the divorce proceedings and will still be out of the country when it is finalised.

I would really appreciate any help and advice on this!

Thanks very much!

[John]

You need to appreciate that there is a real weakness in the way the EU Directive was written, insofar as whilst it gives protection, in stated circumstances, to those that are divorced, it is silent about those who are "merely" separated. But the fact is that the great majority of those that get divorced were separated before the divorce was granted.

Accordingly, until the Decree Absolute is granted there is no special protection, and you are thus in the UK as a family member of an EEA Citizen, who is in the UK exercising their Treaty Rights .... hopefully!

The way the UK interprets this is that unless you were legally exercising Treaty Rights immediately before the divorce, you can't have the protection given to a divorced person, after the divorce is issued.

I suspect that in due course this issue will get clarified by the ECJ .... the European Court of Justice.

[Elf]

Thank you very much John for your answer and for taking your time to reply, thanks a lot! I understand what you said and your point, and this starts to be a bit more clear to me even though I read before at least a hundred of times the Regulations 2006, the Article 13 of the Directive (2004/38/EC), ECI Chapter 2 (Rights of non-EEA Family Members) ,the Chapter 5,etc etc.

I m sorry to be to be a pain, but I m afraid this is still confusing in my head, let’s see… I will try to make myself very clear and I really hope you or another person could give me an answer.

If you read the Regulation 10 . 5(d)
prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

and ECI Chapter 6.1
Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership
A person who ceases to be a family member of a qualified person on termination of a marriage or civil partnership will retain a right of residence if:
• the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution,

So from this I understand that if you can show the 3 years and the 1 year in here, prior to the initiation of divorce, it doesn’t matter if the EEA member is still in the country, or has left the UK “immediatelyâ€

[juicybiscuit]

Do you think I’m able to obtain my retention of right of residence?
If your answer is yes, what should I do just now? Keep it quiet or inform the HO? And when should I apply for PR? And what should I do if I travel abroad on way back into the UK?

Hi there.

I would guess that you would be able to retain your rights provided you could show evidence that your ex excerised treaty rights around the time the divorce was initiated.

The HO was really vague with their requests for me. From what I remember they asked for additional evidence from me that my ex excerised treaty rights at the point of divorce. However, they are a bit thick. Whilst the evidence DID kind of cover the period my decree nisi was issued, it wasn't til 6 months later that I obtained a decree absolute (I was holding back on this for various reasons). I sent on the decree absolute and no one at the HO requested yet more info of the ex's treaty rights at the date THAT was issued. The evidence was simply a letter from my ex's employer stating he was employed from xxxx date onwards.

I would def go along the lines of making sure there is evidence of the treaty rights PRIOR to the divorce and POINT THAT OUT in you letter. Keep quiet about the fact your ex is not around. If they don't ask then don't tell else they could quite rightly ask you to leave. The HO didn't once ask me as to where my ex currently was - just for evidence of treaty rights at the time of divorce (again, this is vauge and open to interpretation of when that time actually is - letter of acknoledgement, decree nisis or decree absolute?).

I think your reasoning is correct though. The HO is a little unpredictable and if I was you I would very clearly hold their hand with the wording of your application. Spell out CLEARLY what your evidence is and HOW IT RELATES to each point of the regulations. Quote the regulations at each point of your application and list how your evidence meets them.

It is all really vague though and until you apply you don't really know what course it will take. I would advise you NOT to mention the fact your ex is out of the country. Nor would I advise you travel (yes it could take over a year - be prepared for a long wait). Nor would I highlight the fact you were out of the country for more than a year.

I believe you would be eligible for PR 5 years from the date of marriage (not sure if being out of the country for more than a year effects eligibility - so keep quiet). I wouldn't recommend doing an EEA4 application though. Just do a manual one (as in without a form - just a long letter and lots of evidence).

Good luck.

[Elf]

Hey Juicybiscuit,

Wow! What an honour, you are a legend on this forum, at least for me! I've read your topics over and over to try to find some advice.. Thankyou very much for your reply, that really helps!and giving me you ideas

As you see I'm going through a difficult time and it's taking alot of energy from me..

With my ex, we still have a kind of good relation so I can prove everything up until July/August then she stopped working in October and went away to start the divorce and back again, went away again, back again... but she never worked again here and she never claimed for any public funds. Then the only thing I have of hers is a bank statement from April this year,because she kept opened her bank account, and a mobile phone bill from around that time too....not because she doesn't want to give me anything, but she doesn't have anything else.

Before I sent my second EEA2 application they told me by phone that I was not eligible to apply for the permant residence as I had been away for one year.. so I guess they would have recorded that so I can't apply for the PR. Even if I could I do not have my ex-wifes passport to send the application EEA4 away.

Any more thoughts from you or any other professionals from this forum?

Thankyou so much for your reply,and to anyone else who could share any ideas.