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Can I pass my retained rights of residence to my new spouse

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

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maxzimka
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Can I pass my retained rights of residence to my new spouse

Post by maxzimka » Sat Mar 06, 2010 2:48 pm

Hi!
I have retained rights of residence in the uk following a divorce. I was given another 5 year extention with a letter explaining that I retained rights of residence and that I should be exercising treaty rights as if I was an EU national.
I have now married to a non-EU person who is currently outside UK. What can we do to get her to join me in the UK
.
Please help

Thank you

vegeta_2009
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Posts: 111
Joined: Sun Oct 11, 2009 4:26 pm

Re: Can I pass my retained rights of residence to my new spo

Post by vegeta_2009 » Sat Mar 06, 2010 3:57 pm

maxzimka wrote:Hi!
I have retained rights of residence in the uk following a divorce. I was given another 5 year extention with a letter explaining that I retained rights of residence and that I should be exercising treaty rights as if I was an EU national.
I have now married to a non-EU person who is currently outside UK. What can we do to get her to join me in the UK
.
Please help

Thank you
retaining your rights means you have the same immigration right as an EU national as long as you keep exercising your treaty right (i.e. working, studying, self sufficient, businesss etccc..).

in short yes you can.

just out of interest how did you apply for it and what form did you use?

maxzimka
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Post by maxzimka » Sat Mar 06, 2010 8:44 pm

thanks for your reply!
I believe that my solicitor used a standard form for settlement under EU rules- EEA2 if i am not mistaken.
I had the same idea regarding my rights being the same as the EU national. Although when my new wife was present in the UK we tried to apply as unmarried partners and lost the case. Home office officer requested to see an ID of EU national (which I am not according to my nationality). To be precise here is what he wrote:

"In your case you were stating that you are non-EEA family member was exercising treaty rights as though he was an EEA national. This may be true but for you to apply through European regulations you must be related to an EEA national and he/he must sponsor you."

You can see now why I am so confused. My solicitor adviced us to apply for an entry clearance visa because "other" rules will apply.

Any comments on this?!

Obie
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Post by Obie » Sat Mar 06, 2010 8:45 pm

Unfortunately, there is no clear cut provision in the directive for the passing of residence to the spouse, of a family member who has retained the right of residence.

The Directive, covers Union Citizen and their family members who accompany or Joins them.

The Directive makes provisions for EU nationals who has rights to enter and reside in the UK by virtue of the treaty establishing the European Union.

As stated in recital 5 of the directive.

5) The right of all Union citizens to move and reside freely
within the territory of the Member States should, if it is
to be exercised under objective conditions of freedom
and dignity, be also granted to their family members,
irrespective of nationality. For the purposes of this
Directive, the definition of ‘family member’ should also
include the registered partner if the legislation of the
host Member State treats registered partnership as
equivalent to marriage.
I am sure, on human rights grounds, you could secure an entry clearance or residency for her, but not under the directive.

If you eventually secure PR, then it becomes pretty straightforward, as you are then considered as Present and Settled in the UK.
Black life matters.

maxzimka
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Post by maxzimka » Sat Mar 06, 2010 8:58 pm

Thanks a lot.
When you mentioned human rights grounds, what exactly do you mean.
I heard that there is an article of the European convention that states something about separating families,but I dont know exactly what that is.

When applying for entry clearance visa what form should we be using and how can we make our case stronger to avoid further refusals,appeals etc.

Do you know a solicitor in London area who would have sound knowledge of work with "retained rights of residence" cases?

Appriciate your help!

vegeta_2009
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Posts: 111
Joined: Sun Oct 11, 2009 4:26 pm

Post by vegeta_2009 » Sun Mar 07, 2010 9:12 am

maxzimka wrote:Thanks a lot.

Do you know a solicitor in London area who would have sound knowledge of work with "retained rights of residence" cases?

Appriciate your help!
i know a good solicitor that i have been referred to several times, he works Saturdays as well. which solitor did you use for your retention of rights? we can swap details if you want, PM me.

thsths
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Joined: Sun Apr 29, 2007 8:14 pm

Re: Can I pass my retained rights of residence to my new spo

Post by thsths » Sun Mar 07, 2010 5:27 pm

maxzimka wrote:Hi!
I have retained rights of residence in the uk following a divorce.

...

I have now married to a non-EU person who is currently outside UK. What can we do to get her to join me in the UK
I agree with Obie, this is a complicated situation. I think the EU law says the right of residence is retained on a strictly personal basis - this would mean no. However, once you have PR (5 years after entering) you qualify as settled under UK law, and then you should be able to sponsor your spouse either under UK or EU law.

You can also make an application on Human rights ground, but these are very difficult and lengthy to pursue.

maxzimka
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Post by maxzimka » Sun Mar 07, 2010 6:33 pm

Thanks again!

Is there any legal document that actually describes the rights of a person who has retained rights of residence?

I mean, how do you actually know that "EU law says the right of residence is retained on a strictly personal basis?"

Assuming that is the case, how do you make an application based on human rights!?

Obie
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Post by Obie » Sun Mar 07, 2010 6:46 pm

Under the EU regulations MAx, you are a Secondary Beneficiary, who acquired your rights by virtue of Primary Beneficiary.

A secondary beneficiary cannot pass on rights, without the support of the Primary Beneficiary, which in this case will be an EEA national.

So for example if you were still married, you could bring in your dependant parents or children from another marriage who are under 21 or dependant on you.

However this is not the case following a divorce. You can only pass on the rights to family members of yours who had it before you divorced.

If your new partner is in the UK, then you can make a discretionary leave application in the UK, if the circumstance is of an exceptional nature, like the fact that their is a child, or for compelling reasons you cannot move to her country. This will be done on the basis of national law, outside the rules, on a discretionary or compassionate basis.

The UKBA would tell you to set up family overseas in your home country or hers.

There is an EU directive on the Right to family reunification for people lawfully resident in the EU, but the usual culprit UK, Ireland and Denmark opted out of it, and hence it is not legally binding on them.

I really feel for your situation, but it is vital that you don't allow lawyers to charge you unnecessary fees for something that could be potentially doomed, or without them discussing the merit of your case, thoroughly after stating your compassionate circumstance.

How far is your PR away?

Remember time spent as a family member counts towards your PR qualification period, therefore forget about the fact that you were issued a new residence card
Black life matters.

thsths
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Post by thsths » Sun Mar 07, 2010 7:22 pm

maxzimka wrote:I mean, how do you actually know that "EU law says the right of residence is retained on a strictly personal basis?"
Directive 2004/38 - http://eur-lex.europa.eu/LexUriServ/Lex ... 038:en:NOT

But be careful - European law tries to be plain and simple, but it rarely is. You can also look at the UK implementation, the 2006 Immigration Regulations (EEA) http://www.opsi.gov.uk/si/si2006/20061003.htm - and at the European casework instructions, although they may not deal with rare issues like this one.

maxzimka
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Post by maxzimka » Sun Mar 07, 2010 10:53 pm

Very interesting facts you guys brought to my attention!

Obie, how would I be abl to tell when I can get my PR. I have already completed 5 years from my previous marriage. My initail "family member" status was issued to me back in April 2003. When it exprired I applied for PR but was given another 5 year extention in my own right, i.e retention rights of residence. This was back in April 2009. Whether it was given to me by mistake I dont know.
Do you think I can submit another application for PR? What grounds would that be based on?

Thanks very much for all your posts

Obie
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Post by Obie » Sun Mar 07, 2010 11:37 pm

Max you qualify for PR at this present time. At the time you applied for retention of right of residence, you probably should have notified them that you are someone who qualifies for Permanent residence card, as you had completed 5 years under the 2000 regulations and the preceding 2006 regulations.

You can now write to them and inform them that, they made an error in issuing a 5 years residence card as you should have been issued a permanent residence card with a valadity of 10 years.

You can now apply using EEA 4 providing 5 years of residence covering the period as family member and family member who has retained the right of residence.

As the PRC is a confirmation of your right of residence as opposed to something conferring rights, your would be spouse could apply for settlement, and you would need to provide evidence that you have lived in the UK for 5 years under the EEA regulations, which would essentially make you a present and settled person in the UK.

Best wishes for the future.
Black life matters.

maxzimka
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Post by maxzimka » Mon Mar 08, 2010 7:43 am

Obie, that's really good!

You have mentioned regulations of 2000 and 2006. I am not very familiar with those.

What is the difference if I qualified under regulations of 2000?

When completing EEA4 should I attach a supporting letter explaining their mistake and PR qualification terms?!

If for any reason HO decides not to issue PR, will it affect my existing extention?

Thanks again for your help!

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