Retention of right of residence

[Moro]

Dear all, hope you're all well,

background
student visa 09-2001 for 1 year
student visa renewed till 11-2003
married my EEA wife 12-2003
residence card issued 12-2004--->12-2009

Retention of rights of residence,

my residence card will expire in December,
my divorce is at the tribunal awaiting for the decree nisi to be pronouced, but my ex EEA is abroad and has been since we separated about 2 years ago, 10-2007
The update; she will be back to the UK for studies in January for about 3 months or more, so will be exercising treaty rights, at that point of time.
Now should I cancel the divorce proceedings all together and reapply in january, (because she was not in the country when divorce proceedings were initiated) or should I get the decree nisi now, and get the absolute when she's here 'qualified' Because it only matters when the absolute was pronouced ?

Please advise, and thank you for your time.

Best Regards
M

[Moro]

any ideas?

[Obie]

You are better of staying on this thread, rather than posting on the Europe Section.

Your partner, will loose her right of resident if she leaves the UK for 6 months or more in a year, save for a single absence of 12 months for Pregnancy, medical reason or military posting overseas.

If as you claimed, you have been married to your EEA national partner since 2003 December, then you qualify for Permanent Resident since Dec 2008.

There is absolutely no need dudging the divorce proceedings in the interest of your residency, as you don't need to, you would qualify anyway.

You would need proof that she has been resident in the UK with you since your marriage in 2003, and has been exercising treaty rights since that period.

Permanent right of residence
15.—(1) The following persons shall acquire the right to reside in the United Kingdom
permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these
Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has
resided in the United Kingdom with the EEA national in accordance with these
Regulations for a continuous period of five years;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person who has ceased activity;
(e) a person who was the family member of a worker or self-employed person where—
(i) the worker or self-employed person has died;
(ii) the family member resided with him immediately before his death; and
(iii) the worker or self-employed person had resided continuously in the United Kingdom
for at least the two years immediately before his death or the death was the result of
an accident at work or an occupational disease;
(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a
continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of
residence.
(2) Once acquired, the right of permanent residence under this regulation shall be lost only
through absence from the United Kingdom for a period exceeding two consecutive years.
(3) But this regulation is subject to regulation 19(3)(b).

[Moro]

thank you for the prompt reply
but i'm really not trying to dodge anything i was the one that applied for the divorce anyway,
to go back to your suggestion my ex left the uk 10-07 so i'm short 1 year and 2 months she did come back few times within that period
so how do i qualify, sorry if i'm a bit slow