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PR refused, appeal in 4 weeks. Ex spouse not cooperating

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

jimkam
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Joined: Thu Feb 25, 2010 9:38 pm

PR refused, appeal in 4 weeks. Ex spouse not cooperating

Post by jimkam » Thu Feb 25, 2010 10:04 pm

Hi there,

My application for PR has been refused based on the fact that i was unable to prove that my ex-spouse was exercising treaty rights at the time of divorce. Obviously I have appealed against it. Appeal is in 4 weeks.

Any help in convincing a judge? My solicitor is gonna argue that it's unreasonable to expect me to prove documents about my ex-spouse when we're no longer married and on speaking terms. She's got all her documents. I have emailed her and asked her to send me her wage slips but she told me to F-off. I have also written to the Department of Work and Pension to send me info about her employment activities under the freedom of info act. No reply yet. Can i print those emails and show the court as a way of demonstrating that she is refusing to cooperate? Please help. Married Dec 2003, Divorced Jan 2009. Marriage lasted more than 5 years and she worked for at least 1 year in the UK.

I only have the following:

- Her P60 for one year
- Some wage slips for one year
- Her contract of employment for one year

I have a comprehensive sickness cover and I am a worker. I have never claimed benefits and I don't have a criminal record. Is there anyway I can put the responsibility back to the Home Office and ask them to check with relevant authorities to see if she is contributing to NI?

Will a judge accept my explanation that there is no way i can prove my ex-wife was exercising treaty rights due to the fact that we're no longer in speaking terms? Any case laws? Please any help will be greatly appreciated. My appeal is in 4 weeks. Please help. :cry:

mamag
Newly Registered
Posts: 27
Joined: Sun Feb 21, 2010 2:42 pm

Re: PR refused, appeal in 4 weeks. Ex spouse not cooperating

Post by mamag » Thu Feb 25, 2010 11:04 pm

pm guru obie, he is an expert on eea4
jimkam wrote:Hi there,

My application for PR has been refused based on the fact that i was unable to prove that my ex-spouse was exercising treaty rights at the time of divorce. Obviously I have appealed against it. Appeal is in 4 weeks.

Any help in convincing a judge? My solicitor is gonna argue that it's unreasonable to expect me to prove documents about my ex-spouse when we're no longer married and on speaking terms. She's got all her documents. I have emailed her and asked her to send me her wage slips but she told me to F-off. I have also written to the Department of Work and Pension to send me info about her employment activities under the freedom of info act. No reply yet. Can i print those emails and show the court as a way of demonstrating that she is refusing to cooperate? Please help. Married Dec 2003, Divorced Jan 2009. Marriage lasted more than 5 years and she worked for at least 1 year in the UK.

I only have the following:

- Her P60 for one year
- Some wage slips for one year
- Her contract of employment for one year

I have a comprehensive sickness cover and I am a worker. I have never claimed benefits and I don't have a criminal record. Is there anyway I can put the responsibility back to the Home Office and ask them to check with relevant authorities to see if she is contributing to NI?

Will a judge accept my explanation that there is no way i can prove my ex-wife was exercising treaty rights due to the fact that we're no longer in speaking terms? Any case laws? Please any help will be greatly appreciated. My appeal is in 4 weeks. Please help. :cry:

jimkam
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Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Thu Feb 25, 2010 11:07 pm

Sorry I didn't understand your reply. Do you know an expert in EEA applications? Please clarify. I am desperate. Please please please.

mamag
Newly Registered
Posts: 27
Joined: Sun Feb 21, 2010 2:42 pm

Post by mamag » Thu Feb 25, 2010 11:35 pm

he is forum memmber but good , i had read some of his commnts on the forum
jimkam wrote:Sorry I didn't understand your reply. Do you know an expert in EEA applications? Please clarify. I am desperate. Please please please.

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Thu Feb 25, 2010 11:39 pm

Ok thanks. I will try and locate him and send him an email or something.

thsths
Senior Member
Posts: 775
Joined: Sun Apr 29, 2007 8:14 pm

Re: PR refused, appeal in 4 weeks. Ex spouse not cooperating

Post by thsths » Fri Feb 26, 2010 8:49 am

jimkam wrote:Will a judge accept my explanation that there is no way i can prove my ex-wife was exercising treaty rights due to the fact that we're no longer in speaking terms?
I would think so, although that is a bit of a judgment call.

You can check out this decision http://www.bailii.org/uk/cases/UKIAT/2010/00003.html - it makes it pretty clear that the condition has to be met, and it may also touch on the burden of proof. I think the decision is wrong, and it will be revised again in a European court. But for now it may be used as case law in your case.

I certainly think that an appeal is the best option for you, unless you can achieve some kind of evidence of employment. Of course you could also state that your ex spouse is self sufficient, but you still need to demonstrate residence.

daisy81
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Post by daisy81 » Fri Feb 26, 2010 9:09 am

Hi jimkam - really sorry to hear about your refusal. I understand how you feel as I'm sort of in the same situation. I will be divorced in July and I know my ex won't cooperate. He has been abusive and threatening in the past 2 years we've been separated so I have absolutely nothing to show he's been working. Have spoken to a few immigration solicitors and have been told it will be difficult to get PR without his payslips, P60s etc. I am basically preparing myself for the worst.

Really hope things will work out for you, let us know how you get on.

Quick q - does anyone know...if I get divorced in July (residence card doesn't expire till 2012...) do I need to apply for PR straight away or can I say on my residence card for longer even though i'm divorced and no longer a family member of EU spouse?

thank you!

mego_1980
Member
Posts: 146
Joined: Sun Apr 26, 2009 8:10 am

Post by mego_1980 » Fri Feb 26, 2010 11:16 am

Hi jimkam,

Could you tell me when did you apply? and when did they ask for more documents and what are the required docments?

Thanks

Mego

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Fri Feb 26, 2010 11:38 am

Hi Mego1980,

I applied in March 2009. It took them 10months to reply. They then gave me a long list of things i need to provide. Here is the exact list they ask for:

- A valid passport
- Marriage Certificate for you and the EEA national
- Evidence of termination of marriage (Decree absolute)
- Evidence of when divorce proceedings were initiated.
- Evidence that the EEA national was exercising Treaty rights on the date the marriage was terminated.
- Evidence since date of divorce that you are a worker, self employed or a self sufficient person.
- Evidence to prove that prior to divorce proceedings that the marriage lasted for at least 3 years and that you and the EEA national resided together in the UK for at least 1 year during the duration of the marriage.
- Evidence that you have legal custody of any children of the former EEA spouse.
- Evidence that you have the right of access to any children of the EEA national under the age of 18 and a court has ordered that such access must take place in the UK.
- Evidence of any difficult circumstances to warrant continued right of residence.

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Re: PR refused, appeal in 4 weeks. Ex spouse not cooperating

Post by jimkam » Fri Feb 26, 2010 11:46 am

thsths wrote:
jimkam wrote:Will a judge accept my explanation that there is no way i can prove my ex-wife was exercising treaty rights due to the fact that we're no longer in speaking terms?
I would think so, although that is a bit of a judgment call.

You can check out this decision http://www.bailii.org/uk/cases/UKIAT/2010/00003.html - it makes it pretty clear that the condition has to be met, and it may also touch on the burden of proof. I think the decision is wrong, and it will be revised again in a European court. But for now it may be used as case law in your case.

I certainly think that an appeal is the best option for you, unless you can achieve some kind of evidence of employment. Of course you could also state that your ex spouse is self sufficient, but you still need to demonstrate residence.
Hi thsths,

Thank you for your reply. It sounds like everyone is using the same law but it's a game of interpretation. Whoever interprets the law cleverly wins. There are some key interpretations in there that would certainly help my case. I really appreciate your response. Please do come back to me if you come across any further positive case laws with this kind of circumstances.

TO THE FORUM MEMBERS:- Are there any EEA appeal experts out there? Please help. Do you know or have heard of anyone in similar circumstances who have successfully won their appeal? Please help. Any feedback will be greatly appreciated.

Thanks.

mego_1980
Member
Posts: 146
Joined: Sun Apr 26, 2009 8:10 am

Post by mego_1980 » Fri Feb 26, 2010 12:22 pm

Hi jimkam,

It's sounds like you didn't send anything with your application first time? Did you just send letter or EEA4 in march ? Did you hire a solicitor ? if yes he should advice you to send all these documents in the first place!!!

you said they have required a valid passport is it your passport or your ex?

I applied in March 2009 , recevied COA in May, I didn't hear since that date from them , but i've sent some more documents to them without their requesting in Dec 09.

Thanks

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Fri Feb 26, 2010 12:44 pm

mego_1980 wrote:Hi jimkam,

It's sounds like you didn't send anything with your application first time? Did you just send letter or EEA4 in march ? Did you hire a solicitor ? if yes he should advice you to send all these documents in the first place!!!

you said they have required a valid passport is it your passport or your ex?

I applied in March 2009 , recevied COA in May, I didn't hear since that date from them , but i've sent some more documents to them without their requesting in Dec 09.

Thanks

Hi mego_1980,

Trust me I sent a lot of the docs they asked for. They're just stupid. They asked for my decree absolute when they already had it. They asked for P60's, wage slips, my passports, my job when they already had all these info. I think it was a standard letter. Because at the end of the letter it says "If you have already provided us with these documents there is no need to send them again". This suggests to me that it was a standard letter. No they did not ask for my ex-spouse's passport. Yes i hired a solicitor.

Strangely, in the "Letter of Refusal" they did not give a million reasons for refusal. Their main reason for refusal was the fact that i was unable to provide evidence that my ex-spouse was exercising Treaty rights prior to the initiation and on the date of divorce. They seem to be OK with the other documents otherwise they would have mentioned that in the refusal letter.

My challenge now is to convince a judge that she is in the UK and she's working but I don't know where. Any ideas how to do that?

BLK235
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Posts: 138
Joined: Wed Jul 15, 2009 11:52 pm

Post by BLK235 » Fri Feb 26, 2010 1:22 pm

Have you considered hiring private detective? As you are already divorced he needs to gather evidence that would prove she exercised treaty rights in the past. He may perhaps gather statements from witneses to show she worked at the time of divorce.

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Fri Feb 26, 2010 1:30 pm

BLK235 wrote:Have you considered hiring private detective? As you are already divorced he needs to gather evidence that would prove she exercised treaty rights in the past. He may perhaps gather statements from witneses to show she worked at the time of divorce.
Hi BLK235,

Thanks for your contribution. No i haven't. Would they have to attend court and testify? Or would they simply have to submit their findings to my barrister who would then present it to the court? Will the court accept a private detective's testimony or findings? Do you know any good private detectives out there who can help within the time frame that i have? My hearing is at the end of March 2010. I would appreciate any feedback on this. Many thanks.

thsths
Senior Member
Posts: 775
Joined: Sun Apr 29, 2007 8:14 pm

Post by thsths » Sat Feb 27, 2010 5:32 pm

jimkam wrote:Thanks for your contribution. No i haven't. Would they have to attend court and testify?
If you know where he is working, you could name the employer as a witness. I am not sure whether they have to attend, and if they would do it. But maybe you can settle for a written statement, and that should be sufficient. I guess this is something you want to discuss with a lawyer - better to stay in the clear rather than go down the dodgy route of a PI.

jimkam
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Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Sat Feb 27, 2010 5:53 pm

thsths wrote:
jimkam wrote:Thanks for your contribution. No i haven't. Would they have to attend court and testify?
If you know where he is working, you could name the employer as a witness. I am not sure whether they have to attend, and if they would do it. But maybe you can settle for a written statement, and that should be sufficient. I guess this is something you want to discuss with a lawyer - better to stay in the clear rather than go down the dodgy route of a PI.
Hi thsths,

I will try discussing that with my lawyer. I have been looking everywhere for successful cases but every case law I've come across is a negative one. Nearly ALL appeals like mine are being dismissed. My main problem right now is to proof that my ex-spouse exercised treaty rights. I know she is somewhere in the UK but I have no clue where? I have emails print outs to show the court in which she is clearly refusing to send me her wage slips. She also made references in the emails and implied that she is in London and working - but she just wont tell me where?

- Will a judge exercise discretion and accepts this?
- If i find out where she worked, can i name the employer and ask the Home Office to check?
- Will a judge accept a letter from her previous employer confirming that she worked there?
- Does voluntary work count as being a "worker"?

Some body please help. I've read about 5 cases, all unsuccessful. I'm scared. When can article 8 be useful in this case? especially when i'm struggling to prove my ex-spouse exercised treaty rights?

PLEASE PLEASE HELP ME. I CANT AFFORD TO LOOSE THIS APPEAL.

kashyme
Junior Member
Posts: 65
Joined: Fri May 30, 2008 4:31 pm

Post by kashyme » Sat Feb 27, 2010 6:26 pm

Hi jim kam,

As u mentioned that ur spouse was working only for 1 year during her total stay in UK . So was she exercising her treaty rights as a worker at the time of divorce or as a self sufficient person on ur income?. Becz as u said u have health insurance and are working , is that insurance and ur work covered the whole period during the divorce proceedings , if so then u can say she was self sufficient during that period.
I think the first step should be to relax and then think what are the possible options u have to defend ur case.

I hope u will find a solution

Good wishes

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Sat Feb 27, 2010 6:52 pm

kashyme wrote:Hi jim kam,

As u mentioned that ur spouse was working only for 1 year during her total stay in UK . So was she exercising her treaty rights as a worker at the time of divorce or as a self sufficient person on ur income?. Becz as u said u have health insurance and are working , is that insurance and ur work covered the whole period during the divorce proceedings , if so then u can say she was self sufficient during that period.
I think the first step should be to relax and then think what are the possible options u have to defend ur case.

I hope u will find a solution

Good wishes
Hi kashyme,

Many thanks for your encouraging words. Really appreciate it. We married in Dec 2003 and separated in 2007. Proceedings began in 2008 and divorce certificate issued 22.1.09. She worked for a supermarket for 1 year (From sept 2003-Sept 2004). I have the P60 to prove it. We lived together for at least 1 year. She was also working for different employment agencies during our separation. She kept moving houses. I dont know if she worked continuously for these agencies or not. I also know that her mum sends her money from Denmark which would make her a self sufficient. I have worked since the day i was granted 5 years residency. Non stop! The truth is I dont know what she was dong at the time of the divorce. Whether she was working or self sufficient. But i do know that she was and still is in London and working. I just cant prove it. PLEASE HELP. Thannks

mego_1980
Member
Posts: 146
Joined: Sun Apr 26, 2009 8:10 am

Post by mego_1980 » Mon Mar 08, 2010 10:32 am

Any updates jimkam.

I spoke with my solicitor last week and he told me that HO refused all divorce cases at the moment especially if they don't have child or eu was not working for the last 5 years.

And he told me that he won most of the cases on the court but it will rely on the reason of refused.

Good luck

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Sun Mar 21, 2010 9:06 pm

mego_1980 wrote:Any updates jimkam.

I spoke with my solicitor last week and he told me that HO refused all divorce cases at the moment especially if they don't have child or eu was not working for the last 5 years.

And he told me that he won most of the cases on the court but it will rely on the reason of refused.

Good luck
Hi mego_1980,

Would you mind asking your solicitor to give you the link to the successful cases so i can have a look please? It might be different from my case but I'm sure I can pick up one or two things from there. I would really appreciate it. My appeal is next week, I am so nervous. I have lived here for 10 years and I cant afford to loose this case as this is my home and life.

Does anyone know of a successful case law recently? Is it also true that you can loose your appeal under the immigration rules but a judge can allow the appeal under Article 8? Please help. My D-Day is near. Thanks

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