Advise on my current residence permits.

[Svenska]

Hi All,

I am writing to see if I could possibly get some answers with regards to my current situation.

I come from an non-EU country and got married to my wife in October 2016.

I moved to be with my wife in Sweden in April 2017.

As my wife is a Danish Citizen, permanently residing in Sweden, I received my first residence permit under the 'EU rules' towards the end of 2017 and it is valid for 5 years and then a second residence permit under the 'Swedish rules' also in 2017 (few months later) and it is valid for 2 years until the end of this year.

Now in April this year (2019) my wife asked me to leave Sweden to give her some space as we were going through a rough patch, so I complied and left.

Just last month (July 2019) I received an email from my wife's lawyer stating that my wife has started the divorce proceedings against me and asked me to sign the divorce papers.

I refused to sign any paperwork still believing that there was no reason why we should get a divorce and so the case was forwarded to a local court and its most likely that the court will grant us a reconsideration period of 6 months before my wife can apply to get the divorced finalised at the end of 2019.

Which means that we are still legally married and will be until the reconsideration periods ends and that would exceed our marriage duration to just over 3 years.

I have lived in Sweden for 1 year and 7 months approx. I had to travel outside Sweden to see to a family emergency last year, adding that plus the amount of time my wife and I had spent on holidays overseas equates to my total residence time in Sweden as stated above.

During my time in Sweden I have conducted myself very well, in that I have progressed in a Swedish language course to an advanced level, I have also attended several job search programmes via the Arbetsformedlingen and in addition to that, I was offered a fix term employment in April this year, however as my wife asked me to leave the country, I could not therefore take up that offer.

I have also never taken any unemployment or even job search activity related benefits in Sweden.

My wife as I have been informed by her lawyer has written a letter to the 'Migration Board' telling them that I have left Sweden, about the divorce proceedings and have specifically asked the Migration Board to cancel/revoke my residence permits.

Now my residence permit under the EU rule will expire towards the end of 2022 and my Swedish permit expires at the end of this year,

My question is, whether the Migration Board will now cancel/revoke both my residence permits immediately or can I still return to Sweden with full study or work rights until such time as my EU residence permit expires in 2022?

Realistically I don't think I have enough time to secure a job before my residence permit under the 'Swedish rules' expires at the end of this year and so I am thinking even if I let that lapse, I would still have my EU residence permit valid for a further 2 years.

I have read on migration Sweden's website that under certain circumstances, one can apply to have their residence permit extended and even though my wife and I don't have any children together, 'ties to Sweden' is something I feel I can show to further strengthen my case, however that is only if my residence permits were about to expire or does this condition apply to my situation as well?

I have read the 'Direktiv' written on the back of my EU residence card (2004/38/EG) and it says under scope:

"In certain cases (e.g. divorce after at least 3 years of marriage where 1 year must have been spent in the host member state), the family member can retain the right of residence".

Legally I am not divorced yet and because I have refused to sign the divorce papers, the application has been forwarded to a court,who as far as I understand should grant us a reconsideration period of 6 months before the divorce is finalised, what this means is that by the time the 6 months reconsideration period is up and the divorce is granted. I would have been married for just over 3 years. And I have also spent more than a year living in Sweden.

So I am thinking I may be able to avail the above EU clause to retain my right of residence and legally return to Sweden?

However, another part of this article states; "prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(B.) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State".

At the time of my wife's application for divorce in July 2019, we were married for 2 years and 9 months. Just 3 months shy of the 3 year mark, so I don't know if I am eligible for the continuation of my EU residence permit?

Any helpful replies will be much appreciated.

[secret.simon]

To clarify, EU Directive 2004/38/EC states

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

So the right to retain residence only kicks in if you have completed 3 years prior to the initiation of the divorce proceedings. Sweden can of course have more lenient laws if it so wishes, but that is the minimum requirement of EU law.

My question is, whether the Migration Board will now cancel/revoke both my residence permits immediately or can I still return to Sweden with full study or work rights until such time as my EU residence permit expires in 2022?

EU residence permits do not give an independent right of residence. They only authenticate an existing right given under EU law. If that right to reside comes to an end, the residence permit does not hold any value.

Based on the information that you have provided, you may be able to apply for an extension in your own right under Swedish, not EU, law. Also see Residence permit if the relationship ends on the Migrationsverket website.