ILR - Is my continuous 10-year residence broken?

Hi, hope someone can help to clear up some confusion I have with regards to applying for ILR under the 10-years rule. I came to the UK in October 2001 as a student, completed my course and visa was extended till March, 2003. Applied for extension to do a MBA course was refused but at this time was living with my EU national partner and we got married in Sept. 2003. I was granted an EU dependant visa for 5 years in Nov. 2003. However, the marriage broke down irretrievably in March, 2008 before I could apply for my permanent residence. In short, submitted an application under EU rules as a spouse retaining rights of residence in Oct. 2008 (EU spouse permit was due to expire in Nov. 2008). The application was not decided until March, 2010 when I was refused on the grounds that as I'm not divorced from my estranged EU partner, I need to present his passport with my application. I was given no right of appeal which is contrary to the law for EU applications. Anyway, I instructed a solicitor to seek judicial review of the decision whilst I file for divorce proceedings. Unfortunately, this solicitor did nothing just took my money and I only find out when I visited the practice and its licence to practice has been withdrawn. Eventually the divorce was finalised in August 2010. I got another solicitor to put in an application for me under the EU spousal right to retain residence; this was refused and I appealed to the immigration tribunal. The case was eventually heard in November 2011; to cut the long story short, the judge recommends that I should be given leave to remain on basis of Art. 8 of ECHR and the HO gave me a discretionary leave to remain in May 2012 which is due for extension in Nov. 2014.
My question is would I qualify to apply under the 10-year rule for ILR or due to my initial application refusal, my continuous residence would have been broken?

Was your estranged spouse Working during all this period leading to your divorce.

He worked on and off up until he moved out in March 2008 on agency temp. jobs. I didn't consider it as anything to worry about then because we never took any benefit as I was earning good salary as a regulatory scientist with a UK govt. agency. The main problem was he took all his documents when he left and couldn't present any of his payslips during the application. I'm not sure of his status in the immediate period preceding the divorce, it was very difficult to track him down even to sign the divorce papers.

Perhaps you should try and get his employment history.

If you can call tax office to provide it, that would be immensely helpful

Just to add more information, the divorce proceedings was initiated in Dec. 2009 and was finalised in August 2010. I tried this by writing to HMRC during the 2nd application but the response was that due to the Data Protection Act, the information could not be released to my solicitor. During the appeal process, the HO caseworker acknowledged that the initial refusal (i.e. 1st application) process was wrong that I should have been given a right to appeal and knowing that under the EU law, since the ID was presented before the RC was issued in 2003, I shouldn't have to present it again. Also, it came out during the appeal hearing that given that I was still married to him up till August 2010, would have been covered by the EU treaty rights.
My concerns are
1. when I was refused the 1st application, I was advised to leave the UK after 28 days which was followed by a letter the month after to present myself at the reporting centre even though my solicitor at the time claimed to have written to HO to request for a judicial review of the case within 14 days after the rejection letter was received.
2. The 2nd application was filed some months after the divorce (< 6 months); mainly because of the problems getting all my documentations back from the 1st solicitor as the practice had been closed.

In the written judgement allowing the appeal, the judge mentioned that as I couldn't present evidence of EU partner working prior to divorce, I would not qualify for permanent residence on the basis of retaining rights of residence as former partner. He also considered possibly granting the application under long residence rule but noted that I was just a couple of weeks short and this was part of the reasoning for granting DLR including that I have established a strong professional tie in the UK, family life with my young nieces and rights to private life.

The problem was poor handling of your case.

I don't believe you will qualify for ILR under immigration rules without showing he was working all through your marriage.

The court is in position now to request the HO to check it, and they have the power to do so.

In the absence of that, I don't believe you will qualify.

A new application will need to be made under EU law.

Can I still do this even though I was issued with a DLR in May 2012 which runs till Nov. 2014? I'm just looking at my options as I don't want to be in limbo again !

I have the option to wait and apply for extension of the DLR I think.

Yes you could. You have nothing to loose and everything to gain.

The issue Is currently before the CJEU on whether a person is required to show that their ex was exercising treaty rights at the time of divorce.

Case law that was established after your case indicates that the HO should in certain circumstances enquire whether the EEA national was exercising treaty rights.

Otherwise you have to wait until 7 years under DR to qualify for ILR, provided that rules had not changed.

I am a professional earning a good salary ~ 40k PA, is it possible for me to move to any other category other than DLR?

If I want to make a new EU application as advised, suppose he wasn't working at the time of the divorce can my own income be considered to count him as someone of independent means? Given that we were not living together anymore then, is this a valid argument. Furthermore, we did live together for more than 3 years as married couple without recourse to any public fund, can I still challenge the decision made before the divorce was finalised to refuse my application?

Sorry lots of questions just thinking of the best way to go about the new application.

What other category do you have in mind. None of them will get you ILR or PR sooner.

I am confident if he was in the UK undertaking an economic activity up until 2008 October, then your case is strong irrespective of the time that has elapsed.

Thanks so much for the great piece of advice and I will consider applying under EU law again. In the meantime, I'm considering making a SAR to HO so I have all the facts before making the new application. Is it appropriate if I apply under Regulation 15(f) of the immigration (EEA) Reg. 2006. Your advise is highly appreciated.

Just to update applied for ILR based on long residence in October 2014 and got the approval last week.

BintKK wrote:Just to update applied for ILR based on long residence in October 2014 and got the approval last week.

Kindly tell us your timeline