This requirement that the spouse should prove that up to the time the decree absolute was issued, the estranged spouse was exercising a treaty right in the UK, is illegal and not mentioned in the directive.
I think, like the Irish Authority, the UK border agency are just adding things as they go along. Just to curtail the rights of individual.
Is it not unrealistic for them to ask you to get your wife to provide you evidence that up to the time your divorce Absolute was issued, she was exercising treaty rights in the UK. Especially if the separation ended bitterly.
This clause needs to be ruled against like in the case of Metock.
However in the meantime, you can contact the Inland Revenue and See if they can provide you any evidence to this effect.
The UK border Agency has access to the system and can check it up by just entering the individuals NI number. Why are they not doing so, rather than rejecting your application, simply on that basis.
Look at the law guys and give your take on this.
Article 13
Retention of the right of residence by family members in
the event of divorce, annulment of marriage or termination
of registered partnership
1. Without prejudice to the second subparagraph, divorce,
annulment of the Union citizen's marriage or termination of
his/her registered partnership, as referred to in point 2(b) of
Article 2 shall not affect the right of residence of his/her family
members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons
concerned must meet the conditions laid down in points (a),
(b), (c) or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, divorce,
annulment of marriage or termination of the registered partnership
referred to in point 2(b) of Article 2 shall not entail loss of
the right of residence of a Union citizen's family members who
are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings
or termination of the registered partnership referred to in
point 2(b) of Article 2, the marriage or registered partnership
has lasted at least three years, including one year in
the host Member State; or
(b) by agreement between the spouses or the partners referred
to in point 2(b) of Article 2 or by court order, the spouse
or partner who is not a national of a Member State has
custody of the Union citizen's children; or
(c) this is warranted by particularly difficult circumstances,
such as having been a victim of domestic violence while
the marriage or registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to
in point 2(b) of Article 2 or by court order, the spouse or
partner who is not a national of a Member State has the
right of access to a minor child, provided that the court has
ruled that such access must be in the host Member State,
and for as long as is required.
Before acquiring the right of permanent residence, the right of
residence of the persons concerned shall remain subject to the
requirement that they are able to show that they are workers
or self-employed persons or that they have sufficient resources
for themselves and their family members not to become a
burden on the social assistance system of the host Member
State during their period of residence and have comprehensive
sickness insurance cover in the host Member State, or that they
are members of the family, already constituted in the host
Member State, of a person satisfying these requirements. 'Sufficient
resources' shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively
on personal basis.
