RETENTION OF RESIDENCE CARD AFTER DIVORCE

HI Guys,
I got married in june 2010 to dual citizen UK and Republic of Ireland. (She holds both passports), under EEA laws.
She filed in for divorce in October 2013.
Decree absolute will be out anytime from now.
My questions are
a) Do I qualify to retain my residence card in light of the fact that the
divorce was initiated before the marriage completed 3yrs but Decree absolute will be issued
after completion of 3yrs.
b) Can HO revoke my RC even though she is here exercising EU rights. ( If so what is the procedure).
c) what are the chances of me continuing on the present visa or any other.
d) Can I apply to stay on human rights ground due to the fact that my brother died and was buried here recently.
e) What other choice do I have.

if marriage took place in June 2010 and your wife filed for divorce in October 2013, then you've been married for more than three years.
If you'd like to apply for RoR then you have to meet the following conditions:
- should have been married at least three years prior to divorce being filed
- lived together for one year, at least
- EEA-national should be exercising treaty rights during entire period of divorce proceedings

From the information you provided - you've been married for more than 3 years, your wife is exercising treaty rights and I presume you've lived together.

So you can apply for RoR after receiving Decree Absolut and there's a chance of receiving positive result. Obviously it depends how your wife is exercising treaty rights. If she's employed then you'll need to submit the payslips as proof of her exercising treaty rights.

A bit different if she is self-employed. As in that case you'll will need to provide the proofs that she has been paying National Insurance Contributions, Tax Returns submitted and also the invoices she issued to clients. If you wife is willing to help you then the bank account statements where she received the payments for the services she provided, those bank statements will help you a lot. On top of that the letters-references from clients, her business cards, possible flyers she distributed, advertising e-mail confirmation from the website she uses.

Stupidly I got the dates wrong. Marriage was in 2011 and not 2010. So marriage duration was less than 3yrs before Initiation of proceedings. The question is..marriage is not over until it is dissolved by decree absolute. So what is the correct interpretation.. Another point is that she will never release any documents to support my application.. So how can I proof she is excersicing treaty rights. Any ideas how or what I could do to resolve these issues.

Perhaps you may wish to seek assistance from the Secretary of State to assist with her treaty right.

My solicitor did mention that. She actually showed me a letter from HO confirming that they sometimes carry out checks to confirm treaty rights status. But what about the duration of the marriage being less than 3yrs before Initiation of proceedings.

What is your solicitors view on that. Surely he should have expressed a view.

UKBA mostly help in circumstances of domestic violence or threat and intimidation.

She really did not say any definite. She did not sound sound convincing. She said you can't really change that now. We'll put in the application and see what they come up with. But I have consulted another solicitor who is well convinced that the actual interpretation is that the marriage should have lasted 3yrs and that we are technically still married until the final dissolution order.

There are 2 principles at play here.

You have Diatta which confers protection until the decree is finalised, and Article 13 of the directive, which lists a set of condition that a person should meet in order to be able to retain their right of residence following divorce.

I have no doubt that provided you wife is still a qualified person, you will continue to qualify for a right of residence until the decree is made absolute.

In regards to retention, the situation is quite different, the regulation and directive indicates that the marriage has to have lasted for a period of 3 years prior to initiation of divorce. That language is clearly different from "Prior to the Termination of the marriage".

Not sure it is out of luck, or a policy or failure to ask or investigate, i have dealt with 3 cases where a clients due to poor advise initiated divorce before 3 years of marriage, but obtained decree absolute after 3 years of marriage, and they qualified.

Hopefully you will succeed also

Thanks Obie. At least it gives me hope knowing that some people have succeeded in the same situation. I might be lucky too.