Non EEA family member: right of residence following divorce

Non-EEA Wife of EEA National: EEA National had an affair and now wants a divorce as the other woman is pregnant with his child.

Please can you provide some advice? Is it at all possible for the soon to be divorced wife to remain in the UK?

Circumstances:

•Originally moved to the UK on a working/holiday visa from South Africa (beginning of 2006) and has been in full-time employment ever since

•Married EEA National 15 months ago and recently received a 5 year UK Residence Card as a family member of an EEA National

•Have lived together in the UK as husband and wife for over a year but not been married for 3 years

•The husband has admitted cheating on her and got another woman pregnant and he is demanding a divorce ASAP so he can marry the woman before the baby is born.

Does the Non-EEA wife have to return to her country of birth?
I have found the following, but I don’t think she qualifies under any of these circumstances….

“Retention of the right of residence following divorce or annulment of marriage/dissolution of civil partnership

A person who ceases to be a family member of a qualified person on termination of a marriage or civil partnership will retain a right of residence if:

•the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and

•the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership, or

•the former spouse or civil partner of the qualified person has custody of the children or a right of access to the children in the UK, or

•there are particularly difficult circumstances (such as domestic violence) justifying the retention of the right of residenceâ€

See also "Family member who has retained the right of residence" 10(5).

Thank you soo much for replying to my mail. Unfortunately the language is incredibly difficult to decypher.

" 10 - paragraph 8

A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15."

All the clauses seem to hinge on 8... but it is hard to understand this section...
"or the termination of the marriage or civil partnership" does this disqualify her from staying?

Or was there one particular clause i should be looking at?
Thank you for your help.
Really really appreciated!

I agree that it's badly written and very confusing! I'm not sure what it means as well.

Anyway, see also NON-EEA NATIONAL RETAINING RIGHT OF RESIDENCE

and I think that you are right, it probably boils down to whether an affair count as a "difficult circumstance" or not?

Hi all

Thanks again for the advice. I think I need real legal advice as no one here has suggested a way to make it possible for my friend to stay here.

Can anyone recommend a lawyer specialising in immigration law that could help? Someone in central london?

Really in need of help here!

•Married EEA National 15 months ago and recently received a 5 year UK Residence Card as a family member of an EEA National

•Have lived together in the UK as husband and wife for over a year but not been married for 3 years

It is actually quite simple, but the EEA national husband will not be too happy!

The non-EEA wife, currently here on the 5-year Residence Card, needs to refuse to agree to the divorce at this time. In other words, she needs to ensure that the divorce does not happen until at least 3 years after the marriage. As long as she does that she will retain the right to live in the UK, and after 5 years she can get PR status.

If the divorce ... the Decree Absolute ... happens before the marriage has lasted 3 years she will not have a right to get PR after 5 years in the UK.

To stay in the UK you must have been married for 3 years and lived in the uk for 1 year while married.

The out clause is particularly difficult circumstances justifying the retention of the resident permit such as domestic violence if you are economically active and self sufficient (meaning no need for recourse to public funds)


So if you dont fit the first criteria, then you can try to use the second one and I guess you can make an argument that the dissolution is not your fault and if you are working and the home office likes you, then they might let you stay. Time to get a solicitor to present your case and frankly don't just agree to the divorce until you get a nice settlement or if you can draw it out for 3 years like john suggests. Although there is documentation that the 3 year clock stops once divorce proceedings start not when it goes into effect
Good Luck

Thank you soo much for responding.

I know my friend really doesnt want to get involved in further nastiness with her husband.

"The out clause is particularly difficult circumstances justifying the retention of the resident permit such as domestic violence if you are economically active and self sufficient (meaning no need for recourse to public funds)"

She is economically active, having been working as a PA in the city for the last couple of years and is thus self sufficient. But not sure if an affair and getting another women pregnant counts in the HO view as 'difficult circumstances' for her

Is there any kind of grace period before she has to leave? she has just signed a new lease on the flat and made other financial obligations?

Finally does it matter that she was married in South Africa? Does that effect things in any way?

identiysupremacy wrote:Thank you soo much for responding.

I know my friend really doesnt want to get involved in further nastiness with her husband.

"The out clause is particularly difficult circumstances justifying the retention of the resident permit such as domestic violence if you are economically active and self sufficient (meaning no need for recourse to public funds)"

She is economically active, having been working as a PA in the city for the last couple of years and is thus self sufficient. But not sure if an affair and getting another women pregnant counts in the HO view as 'difficult circumstances' for her

Is there any kind of grace period before she has to leave? she has just signed a new lease on the flat and made other financial obligations?

Finally does it matter that she was married in South Africa? Does that effect things in any way?

Solicitor time

thank you... SYH... dont suppose you can recommend one in London

Is there any kind of grace period before she has to leave?

She does not need to leave at the moment. She would need to leave if the divorce becomes finalised before 3 years of marriage. That is, she is still a family member of the EEA citizen as long as the marriage is in place.

Finally does it matter that she was married in South Africa? Does that effect things in any way?

No! the UK recognises a marriage in SA, as long as SA recognises that marriage.

Solicitor time

I agree ..... but! Not just any solicitor but one who specialises in family law, and who also knows, or has a colleague who know, about the EU/EEA regulations.

I know my friend really doesnt want to get involved in further nastiness with her husband.

Let's get this right, her husband has been sleeping around, and she is worried about nastiness? She certainly needs to get the legal advice mentioned above.

Thank you John

I realise that she does not need to leave right at this moment but was wondering how long she has after the divorce is finalised.

As for the nastiness... what i meant was i think that in an ideal world she would want the divorce as she doesnt really want to have anything to do with him, but at the same time she has built a life for herself here and desperately doesnt want to return to SA.

Then she has to delay the divorce, so that it is finalised at least 3 years after the marriage.

I'm dealing with a couple of similar cases at the moment, and they are proving VERY difficult.

If the applicant has not divorced, then the Home Office are still demanding evidence that the EEA national has been excercising treaty rights for 5 years. It can be difficult to get P60's off an estranged wife/husband, so there are going to be quite a few people in a catch 22 ont his one - another JR perhaps?

Anyway, this is the problem. If your friend doesn't get divorced, then after five years she will need the EEA national's co-operation to get PR. And what are the chances that EEA national will help? She is going to need to time this VERY carefully.

Victoria

I was under the impression that if she got divorced after three years of marriage she would be able to apply for PR on her own after 5 years of exercising treaty rights?

Does the ex-husband need to have been exercising treaty rights as well during this time?

I spoke to a lawyer and they have said that if she divorces now she has to leave the country to apply for a new visa... be it working visa or student visa. To my limited knowledge as a PA she wont be able to get a working visa. And a student visa would prove very tough financially (not sure how much study costs these days).

Things really dont look good at all. But thank you for your replies. It's great to have a board like this which can provide so many desperate people with real knowledge.

If she gets divorced after 3 years then yes, she should be fine.

I am just saying that she needs to make sure she times it right. For example, if she starts divorce proceedings thinking it is in time, the husband really holds a lot of power. If he refuses the divorce and starts delaying, she may find herself with a problem.

Victoria

If the applicant has not divorced, then the Home Office are still demanding evidence that the EEA national has been excercising treaty rights for 5 years. It can be difficult to get P60's off an estranged wife/husband, so there are going to be quite a few people in a catch 22 ont his one - another JR perhaps?

What is a JR?

I didnt think that that EEA4 form requires the need for the partners P60s, rather just that she had to show she has been exercising treaty rights... i.e. her P60s. Is this incorrect?

What co-operation will she need from her husband? It is not that likely that he will be willing to help if she refuses to divorce...



Any help appreciated and thank you for all your responses thus far

BTW... if she were to go through with a divorce and switched to a student visa would she have to leave the country to apply for this?

identiysupremacy wrote:

If the applicant has not divorced, then the Home Office are still demanding evidence that the EEA national has been excercising treaty rights for 5 years. It can be difficult to get P60's off an estranged wife/husband, so there are going to be quite a few people in a catch 22 ont his one - another JR perhaps?

What is a JR?

See also OEM Section D, Chapter 44 - Judicial review and Injunctions

What is a JR?

JR stands for Judicial Review. Please google or wiki it for further info.

I didnt think that that EEA4 form requires the need for the partners P60s, rather just that she had to show she has been exercising treaty rights... i.e. her P60s. Is this incorrect?

Just one of you have to be working/exercising treaty rights. But if the non-EEA family member is not divorced, then they will write back to ask for proof that the EEA family member has been here in the UK. This need not be necessarily in the form of p60s but utility bills etc will also do.

if she were to go through with a divorce and switched to a student visa would she have to leave the country to apply for this?

It is neceassry to leave the country to switch from the EEA route to the student visa. But since the ILR/PR is automatic, it is better to fight it out rather than go for a switch.

To argue a different point:

Sorry, but I can't see how she can stall the marriage (or divorce proceedings) out for another two years....this guy seems pretty adamant that he wants a divorce...it might be that his new partner is also a non-EEA national and needs the EEA FP to continue residence here. I just don't think it can be stalled for two whole years. A few months, maybe, but what happens if he decides to jump ship and leave the UK? Then her leave would also be curtailed anyway. Anything can turn the situation from bad to worse...

It's a messy situation, but she's better off trying to change to her own immigration status now before things get any worse - try HSMP or WP, try a student visa.

I don't know how long a divorce takes in the UK, but is there not something wrong (illegal, maybe?) in dragging it out for so long, especially when the other party is ready to re-marry?

Adultery is one of the main reasons for divorce, so I don't think there's any argument for the HO to be compassionate to her? Is there anything (or any cases) written where this has happened?

This is just my 0.02.

She can hold things up a fair while - there is no legal duty to agree to a divorce, or legal penalties for refusing to consent.

Under English law, there are 5 grounds for divorce.

1 ) Adultery


The non-adulterous party can sue for divorce on the basis of this ground. The wife could certainly sue the husband for this, but he can't use his own adultery to file for a divorce.

2 ) Unreasonable behaviour


Covers a fairly wide range of possibilities, but not the refusal to agree to a divorce.

3) Desertion

Again, the husband couldn't rely on this, she didn't desert him.

4) Two years' separation

After a couple have been separated for 2+ years, they can divorce if they both agree.


5) Five years' separation

AFter 5 years, either party can institute proceedings without the other agreeing.

So he may be adament, but he needs grounds!

sakura wrote: It's a messy situation, but she's better off trying to change to her own immigration status now before things get any worse - try HSMP or WP, try a student visa.

I think this is good advice.


Victoria

This is such a difficult situation. She really wants to stay in the UK but cant really see herself not allowing him to divorce her. After all he is having a baby with another woman that he says he loves and she is Non EEA too! So needs the visa.

She really doesnt know what to do. She cant qualify for WP or HSMP. The student visa option just seems sooo expensive.

I really dont want her to have to return to SA but I cant see a way out of this mess for her.

Will she have to leave the moment she gets the divorce or is there any grace period?

If she did decide to go down the student visa route... could she line up this visa before the divorce or for after the divorce so that she wouldnt have to leave the country?

thanks again for your help

identiysupremacy wrote:This is such a difficult situation. She really wants to stay in the UK but cant really see herself not allowing him to divorce her. After all he is having a baby with another woman that he says he loves and she is Non EEA too! So needs the visa.

She really doesnt know what to do. She cant qualify for WP or HSMP. The student visa option just seems sooo expensive.

I really dont want her to have to return to SA but I cant see a way out of this mess for her.

Will she have to leave the moment she gets the divorce or is there any grace period?

If she did decide to go down the student visa route... could she line up this visa before the divorce or for after the divorce so that she wouldnt have to leave the country?

thanks again for your help

This is what I meant. Anything can happen (to make matters worse), and two years is just way too long.

The student visa needn't be impossible. Many colleges offer programmes for a lot less fees than at large universities. I don't know what her current skill set it - does she already have a degree? She can start doing things now to enter in January 2008 (some programmes have a Jan or Sept entry). She should seek legal advice on all this, though, because time is of the essence.

How long does a divorce take? She can use this time to transition to another visa. I am not sure if she can 'switch' in-country, but anyway if she knows she will get the visa to return, a visit to SA won't be a bad thing.

sakura wrote:To argue a different point:

Sorry, but I can't see how she can stall the marriage (or divorce proceedings) out for another two years....this guy seems pretty adamant that he wants a divorce...it might be that his new partner is also a non-EEA national and needs the EEA FP to continue residence here. I just don't think it can be stalled for two whole years. A few months, maybe, but what happens if he decides to jump ship and leave the UK? Then her leave would also be curtailed anyway. Anything can turn the situation from bad to worse...

It's a messy situation, but she's better off trying to change to her own immigration status now before things get any worse - try HSMP or WP, try a student visa.

I don't know how long a divorce takes in the UK, but is there not something wrong (illegal, maybe?) in dragging it out for so long, especially when the other party is ready to re-marry?

Adultery is one of the main reasons for divorce, so I don't think there's any argument for the HO to be compassionate to her? Is there anything (or any cases) written where this has happened?

This is just my 0.02.

No there is nothing illegal in being uncooperative in the divorce proceedings
Nor is it likely that the HO is going to view this as compasionate grouds.
While it seems difficult to delay for 2 years, I'd go for it. He probably has no intention in marrying the other woman since he is so fickle, he will lose interest in her and move on to the next one. So stick it to him