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Hi, everybody. I have got a question about what to do next for a non EEA citizen after 5 years of marriage with EEA citizen. My friend got married at 2007; in 2008 she received a residence card for 5 years. So this year will be 5 years as they married and 4 years since she received her residence card. She is not in contact with her husband and he is not going to give her his passport, but she has all relevant documents – his Tax returns for first 3 years of their marriage, utility bills and bank statements for the same address for both of them for all time since they have been married. What is the best way for her to apply for ILR? Thanks

Your friend can only apply for confirmation that she has acquired Permanent Residence in the UK if her husband has been exercising teraty rights here during the 5-year residence period she wants to rely on.

If they are not divorced, then she cannot apply for confirmation that she has retained a right of residence.

Assuming she has lived in the UK since her marriage to him for the last 5 years, does she have any idea what he has been doing for the last 2 years? Does she have any evidence of his working or other exercise of treaty rights? Do they have any children?

If she has bank statements for him covering the last 5 years, do these show his salary being paid in?

If she applies for PR without evidence of his having exercised treaty rights, she will probably be refused. However, she can appeal and may apply for an order from the Tribunal for him to attend the hearing and give evidence of his work history (if she knows where he lives). Alternatively if she can give credible evidence of her own that he has been exercising treaty rights, then a Judge may take that into account.

4uvak wrote:Hi, everybody. I have got a question about what to do next for a non EEA citizen after 5 years of marriage with EEA citizen. My friend got married at 2007; in 2008 she received a residence card for 5 years. So this year will be 5 years as they married and 4 years since she received her residence card. She is not in contact with her husband and they live separately now but still married, he is not going to give her his passport, but she has all relevant documents – his Tax returns for first 3 years of their marriage, utility bills and bank statements for the same address for both of them for all time since they have been married. What is the best way for her to apply for ILR? Or is it easier to apply for PR? And what is the differences. In future she wants to get a British citizenship. Thanks

I very much doubt if this person will be able to secure PR, if he/she cannot show the EEA spouse has been exercising treaty rights for a period of 5 Years.

Cannot retain right of residence as there is no divorce.

Kitty wrote:Your friend can only apply for confirmation that she has acquired Permanent Residence in the UK if her husband has been exercising teraty rights here during the 5-year residence period she wants to rely on.

If they are not divorced, then she cannot apply for confirmation that she has retained a right of residence.

Assuming she has lived in the UK since her marriage to him for the last 5 years, does she have any idea what he has been doing for the last 2 years? Does she have any evidence of his working or other exercise of treaty rights? Do they have any children?

If she has bank statements for him covering the last 5 years, do these show his salary being paid in?

If she applies for PR without evidence of his having exercised treaty rights, she will probably be refused. However, she can appeal and may apply for an order from the Tribunal for him to attend the hearing and give evidence of his work history (if she knows where he lives). Alternatively if she can give credible evidence of her own that he has been exercising treaty rights, then a Judge may take that into account.

Her husband has been working all the time as self employed, but the last evidence she has for him been working was for the year 2010. He does not want to cooperate as his main idea to kick her out of the country that what he told her. Yes she knows where he lives. They do not have any children. How big is a chance that Tribunal will make an order for him to attend the hearing and give evidence of his work history?

Ok, lets put it the other way - what are the other ways for her to stay in this country legally with right to work taking in consideration the above situation and the fact that for last 5 years she was working full time and in 2013 she will graduate as master in management?

In her circumstances I cannot think of any category of the Immigration Rules she could switch into inside the UK.

If she has evidence her husband has been working or self-employed for the last 5 years, while she was also in the UK and still married to him, then she should apply for PR using whatever evidence she has, and a covering letter explaining that her husband is refusing to co-operate, she believes he is still working, her reasons for this belief, his address, etc.

She could also mention that s.40 of the UK Borders Act 2007 permits HMRC to release tax information to the UKBA in certain circumstances and asking them to request his records on her behalf so that they can make a decision.

Her application will probably be refused, but she can then appeal and ask the Tribunal to order her husband to give evidence. It's unlikely they will refuse to make such an order as his evidence is crucial to her case. However, he may not obey the order, or he may turn up and try to harm her case.

She could also ask the Tribunal to order UKBA to request evidence from HMRC.

As a last resort she can give witness evidence about why she believes her husband is still working. This may still lead the Judge to find on the balance of probabilities that she has acquired PR.

Kitty wrote:In her circumstances I cannot think of any category of the Immigration Rules she could switch into inside the UK.

If she has evidence her husband has been working or self-employed for the last 5 years, while she was also in the UK and still married to him, then she should apply for PR using whatever evidence she has, and a covering letter explaining that her husband is refusing to co-operate, she believes he is still working, her reasons for this belief, his address, etc.

She could also mention that s.40 of the UK Borders Act 2007 permits HMRC to release tax information to the UKBA in certain circumstances and asking them to request his records on her behalf so that they can make a decision.

Her application will probably be refused, but she can then appeal and ask the Tribunal to order her husband to give evidence. It's unlikely they will refuse to make such an order as his evidence is crucial to her case. However, he may not obey the order, or he may turn up and try to harm her case.

She could also ask the Tribunal to order UKBA to request evidence from HMRC.

As a last resort she can give witness evidence about why she believes her husband is still working. This may still lead the Judge to find on the balance of probabilities that she has acquired PR.

OK, what if she manage to have the evidence to prove that he is working all the time but he refuses to give her his passport - is that causes any problems?

How long has your friend lived in the UK in total, has her stay always been lawful during these period. Is there any reason why she does not want a divorce from this man.

In addition - can I ask when did they cease living together?

Also seePM and Diatta

the link to PM does not work. I am aware that the family members are not required to live under the same roof, I asked the question to establish whether the UKBA might question whether the marriage was one of convenience.

Possibly. Also see Papajorgji

Obie wrote:How long has your friend lived in the UK in total, has her stay always been lawful during these period. Is there any reason why she does not want a divorce from this man.

Yes, she always been lawful here. She lives here since 2006, she was on a student visa till 2008. No particular reason - she just was hoping husband will be back...

We start to go too far from the topic. I do not know answers for some questions especially the ones which are not connected to the topic. The question was which way should a non-EEA member of EEA family apply for permanent residence in UK given that relationships going wrong at the moment (but this can always change) and that non-EEA person lives here since 2005. 2005-2008 on a student visa, since 2008 family member of EEA sitizen. So in total 7 years of lawful residence in UK. Of cause she hopes to keep the marriage but what should she do if something will go wrong. They planned to apply this year for PR after 5 years of marriage... It is better to be ready for the worst than find yourself in a situation when it is not much you can do.

And one more question - may she apply for PR after 5 years of marriage or should she wait till her EEA2 visa ends?

OP on the one hand you said they plan to apply for PR on the basis of 5 years of marriage and on the other hand you say the guy dont want to support her and provide her with his passport. It is either one or the other.

It is settled law that a RC dont confer right, it only confirms an existing right. Simply holding a RC for five years or showing a marriage certificate for 5 years does not equate 5 years residence in accordance with the EEA regulations.
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There is lack of Evidence. Your friend will find it hard to succeed now or in the near future.

It may be sensible to get an experience legal rep to assist with case.

She has not lived in the UK fot a considerably long period to qualify under the immigration rules. Article 8 might come in play, but as she is almost finishing her
studies, i wonder if a proportionality balance will tilt in her favour in court.

[quote="Obie"]OP on the one hand you said they plan to apply for PR on the basis of 5 years of marriage and on the other hand you say the guy dont want to support her and provide her with his passport. It is either one or the other.

Yes I said that. The problems started just recently. 5 years will pass this summer. So she wants to be ready for both case scenarios. Everything might be fine and she will apply and maybe he will cooperate, but what if not?

You dont now what will happen yet so relax but if it happens like you said, she has to have his passport or she must get divorce with him and apply for PR after her 5 years RC finished.
I hope that he will co operate and she get her PR in the simple way.
Thanks.