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Divorce EEA national - retention of my rights.

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

sleeper
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Joined: Fri Oct 23, 2009 9:50 am

Divorce EEA national - retention of my rights.

Post by sleeper » Fri Oct 23, 2009 11:24 am

Hi Guys
My situation in brief:
Me- non-EEA national, my wife – EEA national.
Came here on student visa Sept 2004 – toped up my Bachelor with a Master Degree in 2006.

Met my wife - November 2004 and start living together from that time.
Married – July 2006, January 2007 received Residence Card for 5 years, expiry date Jan 2012.

My wife and I have been working for the whole period of our marriage. I have a copies of her WRS certificate (copies) + my payslips and P60s. I am full time employed for the last 3 years, salary over 25K. I have got my own flat, have to pay mortgage for another 20+ years :).

She left the house recently and filed a petition for divorce which I signed as we agreed that the marriage is not working for us.
Received a decree nisi 14 Octrober, which will be pronounced 26th October, so it makes the marriage – 3 years 3 month.

She took all her documents with her and it seems that would not be willing to provide them in support of my application for the retention of rights.

The documents I have with her name on it: 1. Mobile phone bills (her name) 2. Credit Card Statement (her name) 3. Last Council Tax Bill (both names) 3. Gas + Electricity Bills (both names) 5. Water Bills (both names) 6. Letters from the bank – online account (both names) 7. Credit Cards Statements (both names) 8. Photocopies of her bank statements, etc.

I’ve read a few things on this forum with a same subject and I believe that the only problem I could have is a proof that she was exercised her treaty rights on the time of divorce (in my understanding – time from decree nisi pronounced to decree absolute) Correct me if I’m wrong.

In addition to that, my family: my mum + sister are settled in the UK and I do not have any relatives in my country.

I’ve read the 2006 EEA Directive + the instruction for HO case workers and could not find anything in the retention of rights section that I have to provide any of her documents. The documents they can ask - passport, proof that I am empoyed and self sufficent. decree absolute. It says there, if they previously issued me with a residence card - they do not need her passport'. The question is : Do they have rights to ask me about her treaty rights?

If, yes, the whole point of that section is lost, as it was designed for the non-EEA family member to apply independently...and it has to be confirmed in the AIT as many people experiencing the same problem

I’m looking for a good solicitor now with an experience dealing with a similar cases + AIT appeals.

Can anyone recommend me one ???

Having read the similar topics about Liverpool unprofessional attitude to the EEA cases and millions of errors they make I think it could go to AIT after their decision :)

All discussions are welcome !

sleeper
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Posts: 37
Joined: Fri Oct 23, 2009 9:50 am

Post by sleeper » Mon Oct 26, 2009 1:31 pm

Any ideas? :?

Obie
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Post by Obie » Mon Oct 26, 2009 1:46 pm

You are still considered a family member until Decree Absolute is passed. UKBA will not accept application for retention of resident until such a time when the above has been finalised.

After that, you would need to provide them proof, that in the period immediately leading to the divorce being finalised, your wife was exercising treaty rights in the UK.

It is vital that the above information is providied.

You should hope that she does not leave the UK during this period, and that in due course, she is willing to provide you the required information.
Judge not, and you will not be judged.

Wanderer
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Ireland

Post by Wanderer » Mon Oct 26, 2009 1:47 pm

ur rights should be retained based on what u've posted but bear in mind u need to prove ur missus at that time was exercising a treaty right and that means her co-operation really - ie u'll probably need her passport.

Having said that not sure how WRS effects it - wait for others.
An chéad stad eile Stáisiún Uí Chonghaile....

sleeper
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Post by sleeper » Mon Oct 26, 2009 2:04 pm

I’ve spoken with her many times for the last month. She is not willing to cooperate. The question was, do they have rights to ask me those documents. I couldn’t find anything in relation to that in 2006 Regulation. I think the paragraph regarding retention of residency rights was created to apply independently.
What’s about domestic violence cases? Do they have to provide the payslips/employment letter too?

Could you recommend a good immigration solicitor, specializing in EU law?

Wanderer
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Ireland

Post by Wanderer » Mon Oct 26, 2009 2:07 pm

sleeper wrote:I’ve spoken with her many times for the last month. She is not willing to cooperate. The question was, do they have rights to ask me those documents. I couldn’t find anything in relation to that in 2006 Regulation. I think the paragraph regarding retention of residency rights was created to apply independently.
What’s about domestic violence cases? Do they have to provide the payslips/employment letter too?

Could you recommend a good immigration solicitor, specializing in EU law?
Course they do - u could be anyone claiming ur estranged missus was exercising treaty right - u can't deny they would need proof.
An chéad stad eile Stáisiún Uí Chonghaile....

sleeper
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Post by sleeper » Mon Oct 26, 2009 2:17 pm

What do you mean by that ('could be anyone claiming ur estranged missus'). I’ve got RC which proves that I was a family member of an EEA national, and HO should have records on their system. They have checked all our documents (her + my passports + supporting docs) on the point of EEA2 application. I have proves that we lived together. The only thing that I don’t have is the proof that she was exercised her treaty rights on the time of divorce, and I mentioned before the Directive does not state that I have to provide it to them. Just want to clarify on which grounds do they ask to provide it…

Wanderer
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Ireland

Post by Wanderer » Mon Oct 26, 2009 2:22 pm

sleeper wrote:What do you mean by that ('could be anyone claiming ur estranged missus'). I’ve got RC which proves that I was a family member of an EEA national, and HO should have records on their system. They have checked all our documents (her + my passports + supporting docs) on the point of EEA2 application. I have proves that we lived together. The only thing that I don’t have is the proof that she was exercised her treaty rights on the time of divorce, and I mentioned before the Directive does not state that I have to provide it to them. Just want to clarify on which grounds do they ask to provide it…
Sorry - I am the victim of a liquid lunch....

I'd better not post for a while!
An chéad stad eile Stáisiún Uí Chonghaile....

sleeper
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Joined: Fri Oct 23, 2009 9:50 am

Post by sleeper » Mon Oct 26, 2009 2:40 pm

Has anyone applied for the retention of the rights and his RC was revoked because the proofs of EEA national treaty rights have not been provided?
Any AIT hearings?

I’ve read on this forum that someone’s RC was revoked because he didn’t provide his spouse passport and he was planning to appeal? Any information on that case?

Obie
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Post by Obie » Mon Oct 26, 2009 3:17 pm

You will not need to provide the identity of the EEA national again, if you were previously issued a Resident Card under Directive 2004/38EC.

In your case, the passport of the EEA national will not be required. However, you will need to provide evidence that in the period immediately leading to the Decree Absolute being passed, she was exercising EU treaty rights in the UK.

UK border agency added a clause which i think is incorrect. They said inorder to qualify, the EU national family member should have been exercising treaty rights up to the time the decree absolute was issued.

The directive correctly states that in the period immediately leading up to the initiation of the divorce proceeding, which is application for decree nisi, the family member should be exercising treaty rights.

This is apparently a gross misinterpretation of the Diatta Vs Germany ruling.
Judge not, and you will not be judged.

keshgrover
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Post by keshgrover » Mon Oct 26, 2009 5:41 pm

Obie wrote:You will not need to provide the identity of the EEA national again, if you were previously issued a Resident Card under Directive 2004/38EC.

In your case, the passport of the EEA national will not be required. However, you will need to provide evidence that in the period immediately leading to the Decree Absolute being passed, she was exercising EU treaty rights in the UK.

UK border agency added a clause which i think is incorrect. They said inorder to qualify, the EU national family member should have been exercising treaty rights up to the time the decree absolute was issued.

The directive correctly states that in the period immediately leading up to the initiation of the divorce proceeding, which is application for decree nisi, the family member should be exercising treaty rights.

This is apparently a gross misinterpretation of the Diatta Vs Germany ruling.
100% right Obie. UKBA is just twisting the Directive as they want to. But it will not last longer. There will be a well harsh UKBA soon as elections are not far and they have to release their figures to lure general public for votes to support Labour (Which I doubt they will get). It is quite unfair that a public sector independant department acts on what ministers want them to do. Let see how long this horse is going to run by its own.
KESH

sleeper
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Post by sleeper » Mon Oct 26, 2009 11:35 pm

Hi Obie

Thank you for your replies. What do they mean by evidence of exercising treaty rights? Payslips, letter confirming employment, bank statements. What else would be accepted?
Are there any other alternative documents which I can obtain without her cooperation? Still can’t understand how do the people manage to stay friends after divorce. :(

Obie
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Post by Obie » Tue Oct 27, 2009 4:09 pm

Yes sleeper, payslips or letter from employer confirming she was exercising treaty rights up to the time the divorce absolute was issued, should suffice.

I went to visit a solicitor friend of mine today, who mentioned that UKBA have started requesting the passport of the EEA national, even though they would have already seen it, when the resident card application was made.

Just note this, and be prepared. It may not be asked in your case. It is yet to be seen whether this is a change of policy or an isolated case.


I am quite stunned still, as to, why they feel the need to make these unrealistic requests from the Non-EEA family members of EEA national.

Would a partner who has just undergone a messy divorce be prepared to provide this information for the benefit of the partner.

When ancilliary proceedings are undertaken, could this not result in a blackmailing or unnecessary demand or duress being imposed on the non-EEA family member to make unfavourable concession, or face a possible deportation, due to spouse withdrawing sponsorship, or reluctance to provide these supporting documents.
Judge not, and you will not be judged.

sleeper
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Posts: 37
Joined: Fri Oct 23, 2009 9:50 am

Post by sleeper » Tue Oct 27, 2009 4:45 pm

That was my point when I started the topic. How do they expect husband and wife who just completed divorce remain friends. It’s unrealistic. In majority of divorces people do not want to have any connections with their ex’s at all.

I think it should be clarified in AIT once, so the other applicants will not have the same problems. That’s why I am looking for a EXPERIENCED solicitor to be ready for tribunal…

Obie
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Post by Obie » Tue Oct 27, 2009 6:44 pm

Unfortunately it seems UKBA have the blessing of the AIT on this one. I hope and pray that you are the one that will ultimtely bring about this change.

I hard someone who hired a private detective, who swore an affidavit on the fact that the spouse was working in the UK up to the time the decree absolute was passed. It was admissable in court which in itself was excellent.

I wish you the very best in your endeavour.
Judge not, and you will not be judged.

Moro
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Post by Moro » Tue Oct 27, 2009 6:47 pm

Obie wrote:You will not need to provide the identity of the EEA national again, if you were previously issued a Resident Card under Directive 2004/38EC.

In your case, the passport of the EEA national will not be required. However, you will need to provide evidence that in the period immediately leading to the Decree Absolute being passed, she was exercising EU treaty rights in the UK.

UK border agency added a clause which i think is incorrect. They said inorder to qualify, the EU national family member should have been exercising treaty rights up to the time the decree absolute was issued.

The directive correctly states that in the period immediately leading up to the initiation of the divorce proceeding, which is application for decree nisi, the family member should be exercising treaty rights.

This is apparently a gross misinterpretation of the Diatta Vs Germany ruling.
well that almost unswers my question, but in my case my ex has agreed to help but will only be back to the UK in January to study, my decree nisi hasn't been pronouced yet, should I cancel?
I mean do I need to prove her excersisjng treaty rights from the initiation OR immidiatly before decree absolute whch I can apply for when she's here?
Thanks guys

ribena
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Post by ribena » Wed Oct 28, 2009 6:15 pm

just a thought:
what if the eea national is self sufficient and supported by non eea national? How can the non eea member prove at the time of divorce the eea national is self sufficient?

sleeper
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Joined: Fri Oct 23, 2009 9:50 am

Post by sleeper » Tue Nov 17, 2009 5:13 pm

Some usefull information which I received from Citizens Signpost Service of the European Commission:

My enquiry and their reply:

Enquiry
68271: Subject : Retention right of residence Question :
Dear Sir/ Madam I am a non EEA national, currently residing in the UK. I was married with an EEA national in 2006 in the UK. January 2007 I have been issued with a 5 years residence permit card which is valid till January 2012. In October 2009 after 3 years and 3 month of our marriage we have divorced. All the time while we were married we lived toghether and worked permanently in the UK. 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’ and ‘the third country national pursuing activity which would make them a worker or a self-employed person if they were an EEA national’ they are qualified for a retention right of residence. I can provide all the documents that I am employed for the last 2.5 years and I have private medical insurance, but I think that UK Authorities - Home Office, might ask me to provide the payslips or confirmation of employment for the time of the divorce from my ex-wife. In my understanding and according to 2006 EU Regulations I am eligible to apply independently from my wife and to retain my residence solely on my own. My question is: Do I have to provide any documents from my ex-wife side if I am applying independently from her for the retention of my rights of residence? Many thanks

Reply
Thank you for your enquiry.

Under EU law, your right to remain in the UK following your divorce is set out in Directive 2004/38. Article 13 provides that the non-EU citizen is entitled to remain in the host State following the divorce if prior to the initiation of the divorce proceedings, the marriage has lasted for at least three years including one year in the host State. As explained by you, you appear to satisfy this condition.

The Article goes on to provide that before acquiring the right of permanent residence, your right of residence is subject to the requirement that you are either a worker or are self employed or that you have sufficient resources for yourself and your family members not to become a burden on the social security system in the UK and that you have comprehensive sickness cover.

It is stated that you retain your right of residence exclusively on a personal basis. Therefore, the authorities should look exclusively at your circumstances without reference to your wife following the divorce. If they require information from your wife, which they should not, you can refer to Article 13 of the Directive.

For further information on your rights pursuant to Directive 2004/38, you may wish to consult the following guide: http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

If the authorities refuse to accept the provisions of Article 13, you may wish to refer the matter to SOLVIT which is an EU network established to resolve problems caused by misapplication of EU law by public administrations. The website address for SOLVIT upon which you will find further details of the service is www.ec.europa.eu/solvit/

I trust that this information is of assistance to you.

Yours sincerely,

Citizens Signpost Service

Obie
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Post by Obie » Tue Nov 17, 2009 7:56 pm

If only what Citizen Signpost and SOLVIT says, is legally binding on the UK or the Home Office, that would have been fabulous, but unfortunately,the reality is that, it is not.

The UK immigration establishment, are perfectly aware of the requirements of the directives, and they have choosen to ignore it. Simple as that, it is a public policy, that would only be overturned by brave court rulings or certainly the European Courts of Justice.

Several attempts by representatives for appeallant, for the matter to be sent to the ECJ, has been flatly rejected by Adjudicators or judges.

So much for, independence and fairness in British Justice system. They are with the British Home Secretary on this all the step of the way.


I hope they succeed in helping you, and wish you every success for the future
Judge not, and you will not be judged.

sleeper
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Post by sleeper » Thu Dec 03, 2009 11:21 am

Just to let you all know that I managed to get a confirmation from my wifes employer which covers the period on Nisi-Absolute + 1 year back to June 08, which I think should be enough... I'll also try to contact IR under Freedom of information Act, so will have 2 resources of information. Hope it will satisfy HO... :? Will be updating you with a progress of my situation...

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