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Retention of rights/and BC

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

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Carling40
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Posts: 197
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Australia

Retention of rights/and BC

Post by Carling40 » Sun Jun 17, 2012 12:58 pm

I will be very grateful if any one could give some constructive advice and suggestions. i am a non-eea national married to an A8 national, am currently assessing my options as a result of recent developments (she basically cheated AGAIN) in my marriage to retain my residence status, My case summary:
student visa 2004 for 3 yrs, extended by 1 yr till nov 2008, applied for extension, exhausted appeals and refusal of student visa jan 2010, Married my gf in april 2010, i received 5yr RC in dec 2010. she has been self employed before we got married and is till date, i have been working since dec 2010 and still am as at the time of writing this... from what i have read so far from the helpful people on here, to have a chance of retention of rights id have to wait till at least may/ june 2013 to start divorce proceedings.... My Questions are, when that time comes
1. What application form do i fill to retain rights?

2. what do i get issued with? another 5yr residence card?

3. what documents would i need to provide.. i can provide her SA return and NIC contributions, accountant letters stuff going back to april 2010 when we got married and hopefully she would give me the one till when the decree absolute comes which satisfies the treaty rights requirement, and utility bills at our address i believe?,would i need her passport to support the application? her to countersign the application for example

4. if i do apply for retention of rights in may/ june 2013 does that mean i have to wait till may/june 2019 ie (5 +1) before i can apply for BC?
or will i be eligible for BC based on my current RC in dec 2016 (5+1)

5. we are trying to work it out and save our marriage, should we not divorce would i need her support my BC application in dec 2016 (5+1)? and would i need her info like her passport, her SA stuff as well, countersign my BC application?

i havent discussed this with my wife yet, the mental strain on the relationship as just been been unbearable but i have to consider my options and id like your suggestions on what my options are

Id really appreciate your learned support and guidance

mcovet
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Re: Retention of rights/and BC

Post by mcovet » Sun Jun 17, 2012 3:45 pm

Carling40 wrote:1. What application form do i fill to retain rights?
You fill out the same EEA2 form, have a look at it from the UKBA website
Carling40 wrote:2. what do i get issued with? another 5yr residence card?
You will get the same residence card which ridiculously still says "family member" etc but you must ensure you get the correct covering letter which will state that you retain the right to reside despite end of relationship
Carling40 wrote:3. what documents would i need to provide.. i can provide her SA return and NIC contributions, accountant letters stuff going back to april 2010 when we got married and hopefully she would give me the one till when the decree absolute comes which satisfies the treaty rights requirement, and utility bills at our address i believe?,would i need her passport to support the application? her to countersign the application for example
Firstly, remember that for you to retain your right to reside you must have been married for 3 years BEFORE you initiate divorce proceedings. Thus, shouldn't really issue a divorce petition until April 2013. It is still debatable whether one should count 3 years until decree absolute (finalised divorce) or initiation (which SHOULD be the former as one can always change his mind during divorce proceedings), but if you CAN do not issue a petition until 3 years have passed. Also, there may be suggestions from the UKBA that marriage isn't genuine, but there is nothing ILLEGAL in waiting for 3 years rather than earlier if the wife is feeling guilty for wrongdoing and willing to assist. So, don't worry about that. If anything, the real fraudsters would instead wait until at least 6-8 months after 3 years to initiate a divorce, or even wait full 5 years. So, no illegality in delaying divorce proceedings to accommodate one of the parties, you are just taking advantage of what law allows! Many people decide to leave separately for a while to reflect and maybe patch the relationship, so if that doesn't work, they divorce.

Then, you would need to show:
1) your marriage lasted for 3 years (decree absolute proves this);
2) you both resided in the UK for 1 year at least (any P60s, bank statements, utility bills, joint tenancy agreement, her accountant's letter etc. ANYTHING proving at least 1 year's residence);
3) that at the time of divorce being made final, she was exercising treaty rights, so anything showing her working at the time of divorce (invoices to customers, bank statements showing money going in, accountant's letter, NI contributions etc.)
4) after the divorce, proof that you, if you were an EEA national, would be regarded as exercising treaty rights (your contract of employment, recent payslips, letter from employer enough);

Carling40 wrote:4. if i do apply for retention of rights in may/ june 2013 does that mean i have to wait till may/june 2019 ie (5 +1) before i can apply for BC?
or will i be eligible for BC based on my current RC in dec 2016 (5+1)
April 2016, unless you remarry a British citizen so no need to even wait extra year. But at this stage I would worry and make sure you retain your right to reside first
Carling40 wrote:5. we are trying to work it out and save our marriage, should we not divorce would i need her support my BC application in dec 2016 (5+1)? and would i need her info like her passport, her SA stuff as well, countersign my BC application?
It's still long ahead, but nevertheless. Once you get the Permanent Residence card, you can do it yourself BUT! You are entitled to PR in April 2015 (the date of marriage counts and not the date on residence card which simply confirms your right) so +1 year, BC in April 2016.

But before thinking about BC, think about PR. If you divorce, you would need, in April 2015 to show that you lived in the UK in accordance with the Regulations for 5 continuous years. By that time, if you don't keep in touch, it will be difficult.

My advice is, depending on when your wife came to the UK, if she already exercised treaty rights for 5 years, immediately apply for her Document Certifying Permanent residence. Having that doc will make it easier for you to prove that there were no gaps in her/your residence during the time you were married and you were then living without a break. You would need to have a copy of her PR card.

Concentrate on:
1) not initiating divorce until April 2013 (save your marriage if possible) normally, it's men who push their wives to cheat and the first question should be to ask what have you done wrong and improve;
2) if inevitable, after you initiate divorce, it'll take with her full cooperation up to 3 months or more to finish it;
3) some time in July-Aug 2013 apply on form EEA2 to retain right to reside;
4) keep working until April 2015 and apply for PR on the basis of being a family member for 5 years- From 4/2010-7/2013 family member from 7/2013- 4/2015 retained right of residence and were working etc.! for any periods of unemployment, actively seek work, take out private health insurance (WPA are good and cheap) to cover yourself if no employment for long period.
5) Take whatever language tests/requirements are at the time in 2016 (one year from the date on your PR card for which you'll apply in 4/2015).

Anyway, hope you sort your marriage out.

Carling40
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Australia

Retention of rights/and BC

Post by Carling40 » Sun Jun 17, 2012 4:33 pm

thank you very much for the information mcovet, much appreciated, i can only be a man do the honorable thing and take responsibility when things go wrong, i dont feel cheating is the solution however, i want it to work and we currently seeking counselling so hopefully we get back to being happy.... i would like to ask in relation to question 3, on the eea 2 form there is a section for her to sign and would i have to include her identification details like passport etc and all the SA details as well? am just thinking should we not be able reconcile and save our marriage, i wont want a situation where by she moves on and i need something like passport to accompany the retention of rights application

mcovet
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Re: Retention of rights/and BC

Post by mcovet » Sun Jun 17, 2012 4:44 pm

Carling40 wrote:thank you very much for the information mcovet, much appreciated, i can only be a man do the honorable thing and take responsibility when things go wrong, i dont feel cheating is the solution however, i want it to work and we currently seeking counselling so hopefully we get back to being happy.... i would like to ask in relation to question 3, on the eea 2 form there is a section for her to sign and would i have to include her identification details like passport etc and all the SA details as well? am just thinking should we not be able reconcile and save our marriage, i wont want a situation where by she moves on and i need something like passport to accompany the retention of rights application
cheating is certainly no solution and I doubt I would be able to live with my wife should smth like that happen, but I can't tell until it happens, and many people have lived with it as love makes you forgive etc. it's clearly your choice and noone can tell you anyth, just expressing an opinion in my first post.

Getting back to your question. Unfortunately, it will make your life MUCH easier if you can get the original passport and proof of work etc to accompany your application in 2013. She should feel guilty and be willing to assist you, you can do this through a third party. You mentioned counselling, please keep copies of appointment letters and so on as proof that marriage was genuine and you were trying to keep it alive.

She doesn't need to sign anything on the form, 3.15 put ex-wife and circle "other evidence". But you will have to liaise with her during your application process. One outcome I can see is to act through a third party who will communicate between you two in the process of obtaining necessary docs from her. Also, don't know if UKBA would accept this but you could certify her passport and other important documents as true copies in her country's embassy or with a solicitor. But you will need proof of her ID and her work status at the time of application. UKBA stuff are very incompetent when it comes to not-so-straightforward apps so they may simply return your whole application before passing it to a caseworker and advise you to provide additional docs.

There is basically a sifting team which looks at the applications and if satisfied with sufficient evidence passes it into the queue (which then can take many months to process). so you may end up not even getting to that queue due to insufficient docs.

Carling40
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Australia

Retention of rights/and BC

Post by Carling40 » Sun Jun 17, 2012 5:01 pm

many thanks for the quick response, its rather unfortunate that they would think going though a divorce is something that ends with both parties ''smiling'' when they can clearly see theres a decree absolute submitted! unfair for them to expect your divorced ex to be ever so "kind" to give you her passport in support of an application! if you know what i mean?, even though she feels bad about it, its her choice at the end of the day to release her supporting docs or not and thats a very uncomfortable feeling knowing that if you know what i mean

mcovet
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Re: Retention of rights/and BC

Post by mcovet » Sun Jun 17, 2012 5:16 pm

Carling40 wrote:many thanks for the quick response, its rather unfortunate that they would think going though a divorce is something that ends with both parties ''smiling'' when they can clearly see theres a decree absolute submitted! unfair for them to expect your divorced ex to be ever so "kind" to give you her passport in support of an application! if you know what i mean?, even though she feels bad about it, its her choice at the end of the day to release her supporting docs or not and thats a very uncomfortable feeling knowing that if you know what i mean
there are numerous people on here who have had to go through lots of trouble being unable to prove that during the 3 year residence your ex was exercising treaty rights so that you also satisfy the requirement of having been living in accordance with the regulations for 5 continuous years (3 as family member of a qualified person and 2 as retained right person).

It is obvious that after the divorce the other half and you in the first place don't even wanna go back and see the person or have anyth in common, but I think courts have said that it's up to the applicant to prove your case. I am just suggesting how to avoid initial UKBA refusal and save time. There may be a case that you can appeal without her papers and go to court and be successful, but in your case you would want to save time and move on swiftly. Retain your right first and then PR is less of a worry as you will have time to explore other options in maybe appealing etc, but retention is the most important step.

naija99
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Post by naija99 » Tue Jul 03, 2012 10:30 am

what status do you get after applying for retention of rights after divorce?
mcovet states:

You will get the same residence card which ridiculously still says "family member" etc but you must ensure you get the correct covering letter which will state that you retain the right to reside despite end of relationship

so when do you finally get PR in this type of case and when can you apply for BC?

A friend of mine has a RC granted in 2010, he's going through terrible marriage problems but Ive advised him to hang in there til 2013 before considering a divorce. So assuming he's able to cope, and he applies for a retention of rights, when would he be eligible for PR or would PR be granted automatically in 2015?

Could he then apply for BC in 2016?

steven2010
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Re: Retention of rights/and BC

Post by steven2010 » Sun Jul 22, 2012 3:20 pm

[quote="mcovet"]
You will get the same residence card which ridiculously still says "family member" etc but you must ensure you get the correct covering letter which will state that you retain the right to reside despite end of relationship

Hi mcovet.
I have retained my right and was issued another 5 year following a divorce.however despite having sent my decree absolute,my home office cover letter still says that i depend on my EEA family member and should he leave the UK,so must I.what do i do to have it changed to the correct cover letter e.i EEA family member that retained they right following a divorce.
Many thanks

zubby007
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Re: Retention of rights/and BC

Post by zubby007 » Sun Jul 22, 2012 5:56 pm

[quote="steven2010"][quote="mcovet"]
You will get the same residence card which ridiculously still says "family member" etc but you must ensure you get the correct covering letter which will state that you retain the right to reside despite end of relationship

Hi mcovet.
I have retained my right and was issued another 5 year following a divorce.however despite having sent my decree absolute,my home office cover letter still says that i depend on my EEA family member and should he leave the UK,so must I.what do i do to have it changed to the correct cover letter e.i EEA family member that retained they right following a divorce.
Many thanks[/quote]


When do you divorce and when did you retained right of resident?

mcovet
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Re: Retention of rights/and BC

Post by mcovet » Sun Jul 22, 2012 11:59 pm

steven2010 wrote: Hi mcovet.
I have retained my right and was issued another 5 year following a divorce.however despite having sent my decree absolute,my home office cover letter still says that i depend on my EEA family member and should he leave the UK,so must I.what do i do to have it changed to the correct cover letter e.i EEA family member that retained they right following a divorce.
Many thanks


You absolutely and I cannot emphasise it enough ABSOLUTELY MUST keep pushing until you get the correct covering letter. The wrong letter you received must have a name of a person who sent it to you and the department name/number (like NW2 or smth of the sort). You must copy and attach that letter with a covering letter explaining that you applied on the basis of having CEASED to be a family member and yet you get that gibberish. Point out to them that in the list of documents at the end of their own letter they list your decree absolute (they call it a divorce certificate, I think) and so, if they confirm that you are no longer married, how on earth can their automatically generated letter say you are a fam member.

Anyway, you must ensure you get another covering letter which would state that you retain the right of residence despite having ceased to be a family member. That would save you a lot of trouble before you get your PR when travelling or even when applying for PR (for which you would then supply a copy of the proper letter from the UKBA confirming you retained your right already).

Write a letter and also complain tot he NWCSU@homeoffice.gsi.gov.uk give your reference number and say you only need a simple correctly drafted letter, that's all. Do not send back your passport or anything.

Just to note, they, by law, should actually even issue residence cards which confirm that you retained right of residence, but since they don't, the only confirmation is that covering letter, otherwise all the wait for nothing and you get another card, try and explain that to the "competent" immigration officers at the border when they ask you where your other half is (according to your residence card), good luck explaining smth like: "Oh, you won't believe this guys!!! Your colleagues up north made a total chicken up by issuing me with the wrong RC, I actually am separated and can live here alone, you know there is this provision in the law and your guidance, look it up, I am not lying" etc. anyway, with the covering letter you just shove it in their face and no explanation needed, or at least not as much.

So, get on the case and chase that letter till you get it, you have time before it's time to apply for PR :)

Good luck!

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