EEA 4 Treaty Rights

roza369 · Post by **roza369** » Sun Oct 14, 2012 3:51 pm

Hi everybody. I have read a lot of useful information on this forum during several years and I would like to thank everybody who gives advice to those who found themselves in difficult situations.
About my case.
Came to UK in 2005 on student visa.
Married in 2007 to EEA national.
In 2008 received a residence card till 2013.
In July 2012 I found out my spouse was cheating on me and throw him out.
I did not file a divorce yet. It has passed 5 years now since we have been married. I know where he lives and of course he does not want to cooperate. The only cooperation he agrees is for divorce - no passport or other documents. He is self employed and I have his self assessment forms since 2007 till April 2012. I have the name and address of his accountant, spouse's UTR number and a lot of proof of our cohabitation during last 5 years - bills etc. My spouse is very lazy so he did not work much during last 5 years (though he is self employed and was filing his tax return every year) and I am not sure if this is important for my application.
What would be your advice in my situation? Should I get divorce and fill an EEA4 form retaining my right of residence or should I apply for ILR as I have been living in this country legally for 7 years now and it will be 8 years by the time my resident card expires and I have been working for last 5 years? As I know I should have a proof of my spouse exercising treaty right to the very day of divorce completed. It is impossible of course. Are there any other routes? I am a full time employee for last 5 years and I have p60s for all that time. Thanks.

Post by **Obie** » Sun Oct 14, 2012 8:42 pm

It seems you will probably qualify for PR, on the basis of the information you have provided. Waiting for a divorce may take longer. I know the passport may be a requirement, but it is not absolute, as they had seen it before.

You may be fine.

roza369 · Post by **roza369** » Sun Oct 14, 2012 11:09 pm

Obie wrote:It seems you will probably qualify for PR, on the basis of the information you have provided. Waiting for a divorce may take longer. I know the passport may be a requirement, but it is not absolute, as they had seen it before.

You may be fine.

Thanks for your reply, Obie. Sorry, I did not quite understand - did you mean I should try to send them EEA4 before divorce without my spouse's passport?

roza369 · Post by **roza369** » Mon Oct 15, 2012 7:25 am

I did not mention it before, but my spouse did not pay his NI contribution(he is self employed). Will this affect my application?

Post by **Obie** » Mon Oct 15, 2012 8:44 am

Well i am not very conversant with tax rule, but i assume he was registered self-employed, was filing tax return, there are accountant letter to verify things and i believe the business was genuine and effective, that UKBA had seen its activities previously, and accepted it to be genuine, as evidence in the issuance of a Residence Card to you. In those circumstance, you may be fine

roza369 · Post by **roza369** » Mon Oct 15, 2012 10:44 am

Thanks, Obie. From your reply I understand that you suggest me to apply for PR before divorce. Correct me if I am wrong. In the EEA4 form it says that I need to send my spouse's passport as well as proof of his self employment to verify that he was exercising Treaty Rights in UK or is the passport not compulsory? May be you know some precedents? As I mentioned before, my spouse refuses to cooperate, so I do not have his passport. I might have his CIS card somewhere. I have to mention that he was sending an EEA3 form for himself last year, but he did not supply enough evidence and HO asked him to send more documents but he did not bother with that, so they saw his passport last year. I was about to send divorce petition today but decided to postpone it till I get a response from you. So please, make it clear what is the best option for me - send EEA4 without my spouse's passport now, or file a divorce and after receiving nisi apply for retaining of right of residence, or do both at the same time as my RC will last for less than a year from now and I might run out of time... I might buy a comprehensive health insurance and send my P60's for last 5 years and a letter from employer if it will help.... Thanks

roza369 · Post by **roza369** » Mon Oct 15, 2012 10:56 am

Everybody's comments are welcomed

roza369 · Post by **roza369** » Mon Oct 15, 2012 5:11 pm

Would moderators or gurus clarify this point for me please?

Post by **Obie** » Mon Oct 15, 2012 6:45 pm

Well if you are able to show your spouse has resided in the UK for a complete 5 years period in accordance with the EEA regulations, then you may qualify for PR. As the UKBA has refused EEA3 before on the basis of lack of sufficient proof, it is likely they will hold similar views for your PR application.

If you apply for divorce, you will need to show that at the time of the divorce, your spouse was residing in the UK in acccordance with the EEA regulations. The question is, will you be able to prove at that point that he is a qualified person, or someone with a right of permanent residence.

I hope this answers your question. Either way, you will need his documents, and one that proves to a sufficent level that he was a qualified person or someone with a right of permanent residence at the time of divorce

roza369 · Post by **roza369** » Mon Oct 15, 2012 8:46 pm

Ok, thanks Obie. They refused his EEA3 because he did not send any documents with it. But I have now his self assessment forms for last 5 years so I think this will be enough to prove that my spouse has resided in the UK for a complete 5 years period in accordance with the EEA regulations. The only question left how crucial is his passport? If I send EEA4 without his passport will HO refuse it? I have checked The Immigration (European Economic Area) Regulations 2006 and I did not see that I should present my spouse's passport...

Post by **Obie** » Mon Oct 15, 2012 10:52 pm

You may be required to provide an accountant letter, bank statement or invoice receipts as part of the application. Tax returns can be provided in addition to one of those. This is specific requirement for the application. Tax returns alone may not be sufficient.

In regards to the passport, there are caselaw coming from the tribunal stating that this is not a legitimate reason for refusal, if it has previously been seen. Which seems to be the case in your circumstance.

roza369 · Post by **roza369** » Tue Oct 16, 2012 10:18 am

Thanks, Obie, for your useful and practical advice. I had a feeling that it might work without my spouse's passport as it was not mentioned in The Immigration (European Economic Area) Regulations 2006. Of course it is not 100% but it worth a try. And this is good news. The bad news is that my spouse's tax returns letters are the only proof I have that he was self employed for last 5 years... I have his accountant's name and address but I doubt that HO will contact them.It seems they are getting really strict in their judgment recently in the view of recent events. I have his CIS card and NI card but I think it might be little of use especially taking into consideration that he did not pay his NI... The rest are several early statements which I already sent to HO when applied for EEA2 long time ago and utility bills mostly... But anyway I will try. The other thing is that his passport has expired earlier this year couple months ago. Hope it is not a problem as in The Immigration (European Economic Area) Regulations 2006 it says that expiration of passport does not stop EEA national to exercise his treaty rights. So this is another possible pitfall but I have no choice anyway. Thank you Obie for your help. May I ask you one more question? As I might have some problems with my application could you please tell me where I can find a case law regarding my case? I found some sites via search: http://www.judiciary.gov.uk/media/tribu ... um-chamber, http://www.ein.org.uk/. I am sorry if I am not allowed to post them here and I will delete them if this is the case. Thank you Obie once more.

roza369 · Post by **roza369** » Tue Oct 16, 2012 2:16 pm

I just went through this case http://www.bailii.org/uk/cases/UKUT/IAC ... maica.html.
As I understand I will be fine as long as I mention my spouse's expired passport number in EEA4 application, because they issued me RC before and accepted the passport as form of ID then. Also they accepted his passport for his own EEA1 application last year. And I need to submit as much evidence as I can so they could not find any other reason to refuse my application. Another question I have - when is the 5 year treaty rights period should start? Is it on a day of marriage or it could start earlier? As all I have are his tax returns. And his last tax return done several months before we completed 5 years of marriage. I have nothing after that... It seems it says in here http://www.legislation.gov.uk/uksi/2006 ... on/15/made that the 5 year period we resided together and he was excersising Treaty Righs have to be the same time period, is it right? And regarding a part of my previous question after couple years of searching this forum I just realised that there is a whole section of case law here as well... Thanks to everybody who keeps posting and helping others to sort their difficult situations. Special thanks to Obie!
P.S. I would still love to have answers for my questions I posted above

roza369 · Post by **roza369** » Thu Oct 18, 2012 11:05 am

How to prove a continuity of residence of self-employed person in UK? I thought that letters from Inland Revenue and Tax Return Forms for last 5 years would be enough... But Obie stated that it won't. I do not have his payslips or bank statements or accountant's letters, though I have his accountant's details but I do not think that his accountant will issue me a letter for him. Would NI statements for last 5 years be of help? Please help.

roza369 · Post by **roza369** » Fri Oct 19, 2012 9:31 am

roza369 · Post by **roza369** » Fri Oct 19, 2012 10:13 am

May I apply for EEA2 instead of EEA4?

roza369 · Post by **roza369** » Sat Oct 20, 2012 1:07 pm

Anyone?

Post by **Obie** » Sat Oct 20, 2012 5:30 pm

roza369 wrote:How to prove a continuity of residence of self-employed person in UK? I thought that letters from Inland Revenue and Tax Return Forms for last 5 years would be enough... But Obie stated that it won't. I do not have his payslips or bank statements or accountant's letters, though I have his accountant's details but I do not think that his accountant will issue me a letter for him. Would NI statements for last 5 years be of help? Please help.

Well i did not say letter from Inland revenue will not be sufficient to prove continuity of residence. I said letter from Inland revenue alone will not be sufficient for proving he was exercising treaty rights according to the EEA 4 Application form.

Of course you can fight this. But i was simply stating what the application requirements are.

I see no reason in applying for EEA2, as you would then require his passport and more document than you already have.

You may want to give the application a go and see what they say.

roza369 · Post by **roza369** » Sun Oct 21, 2012 9:19 am

Thanks Obie. Can the application be refused at all or will they just send it back asking for more documents? And also in case of divorce do I need to prove that he is working just at the time of divorce or that he was working through all the time that we have been married? I mean to say if nisi is dated 21/10/20012 than would just 1 his weekly payslip covering this date plus the rest of documents I already mentioned be sufficient to prove that he is exercising Treaty Right?

Englandd · Post by **Englandd** » Sun Oct 21, 2012 9:45 am

under these circumstances if you apply again EEA2 then you need to show shorter period of EEA partner's self employment activities (treaty rights) but on the other hand for EEA4 a large period i.e. 5 years of EEA partner's self employment activities will need to show. The inland revenue forms and tax returns you mentioned may works for EEA2 but not for EEA4.

Note:
But whatever application you choose to apply need to be very careful as it does not build up any suspicion over you.

roza369 · Post by **roza369** » Sun Oct 21, 2012 10:02 am

Thanks, Englandd

roza369 · Post by **roza369** » Sun Oct 21, 2012 10:05 am

Well, from all what has been written above I see that it is not a straightforward case and if I file it myself I might have problems. May anyone recommend a good solicitor or at least point out where should I look for a good one? It would be nice if it was a section on this forum about solicitors explaining where to look and how to choose a good solicitor... And may be a list of proven good solicitors who really helped people on this forum... Solicitors' rating and reviews, comments on their services... As there are so many solicitors around but so few good ones... I found this solicitors http://www.medivisas.com/index.asp on another forum. I have read their replies to other people and it seems they know what they are doing... Does anyone know anything about them? Another one was recommended to me by my friend... Or maybe there are some solicitors on this forum? How to contact them?

Post by **Obie** » Sun Oct 21, 2012 7:30 pm

Well the forum does not allow advertisement, neither are recommendations acceptable, as it may in actual fact amount to advertising.

Unfortunately we cannot put firms of solicitors or give any information on them as you suggested.

The thing about EU application is that, you are required to meet the requirements, having a solicitor or not will not always result in those requirements being waved.

I suggest you either make the application and provide the documents you have got, showing 5 years of residence for your self and your spouse, and see how it goes. There is a new regulation 29A which is coming into effect on 8th November, which allows for other evidence to be provided to prove nationality, or reasons given why it is beyond the applicant's control to obtain the ID or passport. You can argue that they have seen it before and had no issue with it. That your estranged spouse is refusing to provide this documents.

If they refuse, you could then wait for the Decree nisi and then absolute to come through, and then apply for retention of residence. This will exempt you from the passport or ID card requirement. If they insist on more evidence than the tax return, or demand things like invoice, accountant letter, or business account and premesis, you can ask your estranged spouse to provide them, if he refuses you can then fight it out at the tribunal. It would be wrong to say that, in those circumstance, your case will not have a strong merit.

I wish you all the best.

roza369 · Post by **roza369** » Sun Oct 21, 2012 8:39 pm

Thank you!

dorian1986 · Post by **dorian1986** » Wed Dec 17, 2014 7:50 pm

i would like to ask a question related to this topic..Somebody who had ROR after got divorced could be able to apply for EEA4 at the end of his first 5 years residence card or should that person wait for another 5 years(second) to be able to apply for EEA4 please assume that EU citizen has been working over 5years full-time..

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