Non EEA divorced right of retention - My experience so far..

shandave2001 · Post by **shandave2001** » Sun Mar 15, 2009 8:14 pm

Thank you thsths and Mary
There is one thing I am not clear, if you can assist further please.

Under rights of retention: What does that imply that marriage must last at least 3 years but "one year must be in the UK"?

Couple must have resided in the UK for at least one year during the duration of marriage implies that they can reside 2 years outside the UK? (to complete total 3 years) Below I have quoted the relevant rule.

5.2 Retention of a right of residence following divorce or annulment of marriage
dissolution of civil partnership
Regulation 10(5) of the 2006 Regulations makes provision for the following:
If the marriage or civil partnership has lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership, then the third country national retains a right of residence if:... (Thanks to Swan above)

Further, out of interest, rules don't say that married couple must live under same roof or even at same residence, so they can live apart from very start (at 2 different addresses)?

malina · Post by **malina** » Sun Mar 15, 2009 8:35 pm

[quote][b]Morpheo
Junior Member

Joined: 25 Sep 2005
Posts: 23

PostPosted: Fri Feb 06, 2009 4:49 pm Post subject: Reply with quote
Ohh My,

First congratulation, sad to know u got the same situation as mine, but at least it is something Smile

I am due to apply for my PR on May.[/b]

but this time I won't make the same mistake of sending my passport, instead, I will be sending a copy and ask them to let me know when is needed to attach the sticker.

[b]However, we got another dilema: The need of the new biometric ID card Sad.[/b]

Well, I wil keep everyone updated about my new mini adventure with the HO.

to be continued ...[/quote]

Hi Morpheo, I just found at the bottom of this page some onformation regarding Biometric ID and those who apply for PR or ILR http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

"Only applicants for Leave to Remain in the United Kingdom are affected. Foreign nationals seeking indefinite leave to remain and the settled
population remain unaffected by the changes, as do applicants in other immigration categories who continue to receive a vignette in their passport."

Who advised you that you will need one?

Regards,

thsths · Post by **thsths** » Sun Mar 15, 2009 9:15 pm

shandave2001 wrote:Couple must have resided in the UK for at least one year during the duration of marriage implies that they can reside 2 years outside the UK?

Yes, but at the end they both have to reside in the UK, otherwise there would be no residence to be retained.

juicybiscuit · Post by **juicybiscuit** » Mon Mar 16, 2009 1:52 pm

Mary1 wrote:Congratulations Juicy B

Looks like your all set now. Out of interest did you write or email. I havent heard from them since sending my letter. Do give some details if you can please.

Congratulations again.

Mary

Hey Mary.

I picked up my passport today - it has the magic words on it "Pemanant Residence" and a renewal date of 10 years time. Not sure what my solicitor was talking about when he told me it had leave to remain written on it!

I contacted the HO about the incorrect stamp (vignette) via email (NWCSU@homeoffice.gsi.gov.uk). They seem to reply within a couple of days about complaints - generally after forwarding them onto a caseworker.

When I complained about the wrong stamp being issued I complained via email. I got a letter back in just under 2 weeks apologising profusely and asking me to re-submit my passport which would then be re-stamped "with urgency" (using the correct 'Regulation 10' stamp). I did this right away and pointed out that as it now appeared I would qualify for PR then could I please have that reflected with the new stamp. If not then could they tell me when and how I could apply. Remember I did not apply for PR originally but for retention of rights under Regulation 10. I simply pointed out that if I now qualified it would be sensible to grant me this.

I think that had I not pointed this out then they would have re-stamped it with the Regulation 10 stamp. As it is, I now have the PR for which I rightly qualify. I have no idea if this would have been granted had my marriage had lasted less than 5 years. In theory I would have still been eligible for PR but I have no idea how the HO interpret the rules.

I have to say that the only time I feel like the HO have been efficient or knowledgeable about my situation is after complaining via the HO email address. The caseworker who investigated my complaint was the 1st person in over a year that actually referred directly to the retention of rights under regulation 10. Prior to that all I have from letters from the HO were vague references to my application for a residence card. This caseworker did seem to know what was going on even to the point of rectifying the mistake promptly, seeing sense and granting my PR. If only all who worked at the HO were like they were!

p.s. Mary - I pm'd you but got no response. Feel free to message me if you wish.

Mary1 · Post by **Mary1** » Mon Mar 16, 2009 8:03 pm

shandave2001 wrote:
Couple must have resided in the UK for at least one year during the duration of marriage implies that they can reside 2 years outside the UK?

thsths
Sage

Yes, but at the end they both have to reside in the UK, otherwise there would be no residence to be retained.

Spot on thsths

Mary

shandave2001 · Post by **shandave2001** » Tue Mar 17, 2009 3:49 am

Hi thsths

I understand the force and logic of ur point, however, how u interpret the relevant rule that marriage should last for hree years but "couple must have resided in the UK for at least ONE YEAR during the duration of marriage?"

Emphasis on "one year in the UK" out of total three, what does this imply?

thsths · Post by **thsths** » Tue Mar 17, 2009 7:48 pm

shandave2001 wrote:I understand the force and logic of ur point, however, how u interpret the relevant rule that marriage should last for hree years but "couple must have resided in the UK for at least ONE YEAR during the duration of marriage?"

Emphasis on "one year in the UK" out of total three, what does this imply?

I think it means you could have married somewhere else 3 years ago, maybe on Hawai (nice place). Then you spent 2 years abroad, and 1 in the UK, before you separated and filed for divorce. (Or any more complicated scenario, as long as you separated and filed for divorce while both in the UK.)

Tommy

pat grey · Post by **pat grey** » Thu Mar 19, 2009 9:45 am

I sent my application to the home office in Dec 08, and gave them a call today to check, was told the application is with a case working team and they are making external checks/enqiry..has any one been told the same? share your views
_________________

kapil_24uk · Post by **kapil_24uk** » Thu Mar 19, 2009 6:01 pm

pat grey wrote:I sent my application to the home office in Dec 08, and gave them a call today to check, was told the application is with a case working team and they are making external checks/enqiry..has any one been told the same? share your views
_________________

well i sent my application in jan2009 and caled them abt 2 days ago and was told that i should call them after 6mnths as this rule apples to ee4 applications. my main concern is i have nt received any letter from them as an acknowledgement that they have received my application.....any 1 going through the same.????please share ur views..........

thanx
kapil

keshgrover · Post by **keshgrover** » Fri Mar 20, 2009 6:18 pm

pat grey wrote:I sent my application to the home office in Dec 08, and gave them a call today to check, was told the application is with a case working team and they are making external checks/enqiry..has any one been told the same? share your views
_________________

PAT GREY, Could you kindly confirm if you sent EEA4 or EEA2 for yourself. And which number did your ring at HO.

Regards

pat grey · Post by **pat grey** » Sat Mar 21, 2009 8:21 am

irakro97 · Post by **irakro97** » Sun Apr 05, 2009 7:47 pm

Heyi Everyone

I have just found this forum as I am trying to help my brother who s in the same situation as most people here
I was married to an EEA lady for 5 years and they have lived in the UK for more than 3 years before the trouble starts between them ( I will spare you all these details)
The problem is he has applied for the retention of residency, the home after 12 months of wait just replied to him rejecting his application on the basis that he did not prove enough that The EEA national was working in the UK up until the time of divorce. The thing is this woman has varnished , she does not want to give her bank details to prove that she was living here here.

My Bro now is preparing for the appeal in court.
my first question is :
has anyone here been to court in an appeal against the home office outrageous mis-interpretation of the EU 2004 (transposed into regulation 2006) on the right of retaining the residency and has the person won his case in court ?

i believe Swan was going to court....

irakro97 · Post by **irakro97** » Sun Apr 05, 2009 8:02 pm

Please if anyone knows what happened to an appeal case on retention of residency , we would like to hear from you

Thanks

Swan · Post by **Swan** » Sun Apr 05, 2009 8:04 pm

irakro97 wrote:Heyi Everyone

I have just found this forum as I am trying to help my brother who s in the same situation as most people here
I was married to an EEA lady for 5 years and they have lived in the UK for more than 3 years before the trouble starts between them ( I will spare you all these details)
The problem is he has applied for the retention of residency, the home after 12 months of wait just replied to him rejecting his application on the basis that he did not prove enough that The EEA national was working in the UK up until the time of divorce. The thing is this woman has varnished , she does not want to give her bank details to prove that she was living here here.

My Bro now is preparing for the appeal in court.
my first question is :
has anyone here been to court in an appeal against the home office outrageous mis-interpretation of the EU 2004 (transposed into regulation 2006) on the right of retaining the residency and has the person won his case in court ?

i believe Swan was going to court....

Hi,
we filed for a paper appeal so we are now waiting for the judge's decision, have no idea how long paper appeals take, no one seems to know..
The stories i heard so far are of people going to the court and the home office either not turning up, or withdrawing the decision on the day of the hearing or even before the hearing
I heard of someone who went to the court, the HO withdrew infront of the judge when the barrister showed them clearly that they have misinterpreted the EU regulation, but he has been waiting since then to get his status sorted and it is still pending !
it seems like you have more chances by going to the court, our lawyer is convinced that the HO has no right to ask for the employment details ..we will see !!

make sure you get a good lawyer
good luck

Swan · Post by **Swan** » Sun Apr 05, 2009 8:06 pm

irakro97 wrote:Please if anyone knows what happened to an appeal case on retention of residency , we would like to hear from you

Thanks

PS: also read isceon case on
http://www.immigrationboards.com/viewtopic.php?t=37595

irakro97 · Post by **irakro97** » Mon Apr 06, 2009 12:39 am

Hi Swan

Thanks for prompt reply
do you mind if I ask you how long have you been waiting for your appeal hearing to be set ?

Please let s keep in touch , I will probably lodge mine this week

Thx

bebe2 · Post by **bebe2** » Mon Apr 06, 2009 11:36 am

hi irakro
i think swan is jumping the gun here .
first things first.
is you brother divorced?
what exactly did he give them to prove his wife exercised treaty here.?
has he got the wifes passport or id?
my bro has gone through the exact thing and he has been refused several time becos he didnt have hjis wifes passport and wasnt divorced.
sorry i couldnt give you the link to the post,
give us more details please.

kapil_24uk · Post by **kapil_24uk** » Mon Apr 06, 2009 12:50 pm

bebe2 wrote:hi irakro
i think swan is jumping the gun here .
first things first.
is you brother divorced?
what exactly did he give them to prove his wife exercised treaty here.?
has he got the wifes passport or id?
my bro has gone through the exact thing and he has been refused several time becos he didnt have hjis wifes passport and wasnt divorced.
sorry i couldnt give you the link to the post,
give us more details please.

hi

im in the same situation as my wife wasnt working through out our married ife as i was earning enought for both of us.....could this be a problem??????????

i send my EEA4 to HO in jan but havent heard anything as yet. i called up HO many times to confirm if they have received my application but they saying that i have to fax thm that i need a COA which is quite annoying and frustating as i have faxed them many times but no luck so far.........

its been almost 3 months now and im stll waitng for confirmation.

could u guyz please confirm if this is HO requirement if she has to be working.im really worried now

please advise me.all suggestions are most welcome
many thanx
kapil

Swan · Post by **Swan** » Mon Apr 06, 2009 4:04 pm

bebe2 wrote:hi irakro
i think swan is jumping the gun here .
first things first.
is you brother divorced?
what exactly did he give them to prove his wife exercised treaty here.?
has he got the wifes passport or id?
my bro has gone through the exact thing and he has been refused several time becos he didnt have hjis wifes passport and wasnt divorced.
sorry i couldnt give you the link to the post,
give us more details please.

bebe yes irakro's brother is divorced according to his thread

just to emphasise that i am just talking about my personal experience (my husband's) and what i heard around me, of course each case is different and the requirements of the HO may be different depending on the case or unfortunately sometimes depending on the caseworker (for example, in our case they never asked for her passport!)
i guess this is what irakro is looking for, ie: for people to share their experiences and may be their understanding of the actions of the HO in this grey area ...what is sure is that caseworkers do not know how to interpret the regulation and hence making very unfair decisions....
as i said, our lawyer is convinced from his interpretation of the regulation that only one of the partners should be employed ...i don't know if he is right, i wouldn't know better than him anyway ...we can only find out when our case goes through the court !

irakro97 · Post by **irakro97** » Mon Apr 06, 2009 5:53 pm

I can confirm that my brother is divorced after 5 years of marriage. the problem the Ho is posing is that his ex-wife have been working in UK up to the time of the divorce which is not stated in the EU version of the law ...
when you read the version of the EU regulation on the retention of residency after divorce it is different than the HO version of the same law.
I wonder if the EU is aware of that and if it s normal for the HO to change or mis-interpret the law ?

if a case goes to court is the Judge obliged to apply the EU version or the UK version
This all this create so much pain in people life

isceon · Post by **isceon** » Mon Apr 06, 2009 9:15 pm

irakro97 wrote:I can confirm that my brother is divorced after 5 years of marriage. the problem the Ho is posing is that his ex-wife have been working in UK up to the time of the divorce which is not stated in the EU version of the law ...
when you read the version of the EU regulation on the retention of residency after divorce it is different than the HO version of the same law.
I wonder if the EU is aware of that and if it s normal for the HO to change or mis-interpret the law ?
if a case goes to court is the Judge obliged to apply the EU version or the UK version
This all this create so much pain in people life

I think it is going to be a very long battle.
If the court rules that it is unlawfull for the HO to ask proof of exercising treaty right of the EEA citizen they will probably resist the judgement and would appeal to the end even to refere the case to the ECJ (european court)if needed.
If the National courts agree with the home office then only the EU commission can refere the case to the ECJ against the uk and for that they need to hear about these problems.
Everyone affected by the bullying of the ukba should write a letter to the EU commission.
Either way it is gonna be very tough.
If it is regarding retention of residence following divorce I would not count on SOLVIT to help.I have contacted them 1month1/2 ago and they just do not care if u are not any longer a family member of their citizen(divorced).
Good luck to us all.

matinuk2 · Post by **matinuk2** » Wed Apr 08, 2009 11:18 am

Hi everyone
i am in similar situation(applying for EEA4) but with a bit more complication, could anyone have a look at my situation trough the link below to give my their advice please.
any information would be highly appreciated.

Martin

http://www.immigrationboards.com/viewtopic.php?t=37840

irakro97 · Post by **irakro97** » Sat Apr 11, 2009 11:28 pm

Hello Swan

Have you heard anything on your appeal ?

Please keep us informed

Thanks a lot

Swan · Post by **Swan** » Sun Apr 12, 2009 12:13 pm

irakro97 wrote:Hello Swan

Have you heard anything on your appeal ?

Please keep us informed

Thanks a lot

Not yet irakro

will post as soon as I get any news
thanks for asking

kapil_24uk · Post by **kapil_24uk** » Mon Apr 13, 2009 4:29 pm

hi

im in the same situation as my wife wasnt working through out our married ife as i was earning enought for both of us.....could this be a problem??????????

i send my EEA4 to HO in jan but havent heard anything as yet. i called up HO many times to confirm if they have received my application but they saying that i have to fax thm that i need a COA which is quite annoying and frustating as i have faxed them many times but no luck so far.........

its been almost 3 months now and im stll waitng for confirmation.

could u guyz please confirm if this is HO requirement if she has to be working.im really worried now

please advise me.all suggestions are most welcome
many thanx
kapil

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