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Right to remain of non EEA partner after seperation/ divorce

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

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nordsee
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Germany

Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Sun Jul 05, 2020 9:30 am

Hi all,

I would be grateful of some advice on the following case

- Me (EEA citizen) wants to seperate (and divorce as soon as possible) and leave the UK
- we both have pre-settled status under the EEA settlement scheme and are in the UK since Oct 2017
- Non EEA spouse would like to remain in the UK for a while


To my understanding it would be unlawful for her to remain in the UK if I move away.

I have read that there are ways to obtain a visa for a limited period of time (after divorce). The question is now, for how long she would be allowed to stay in the UK and if she can keep her job. Her company won't sponsor a visa.

I have been trying to find some exact guidlines in this context and would really appreciate if someone had a link the guidelines.


Thank you so much in advance!
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Zerubbabel
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by Zerubbabel » Sun Jul 05, 2020 10:10 am

Hello

If the marriage lasted 3 years including minimum 1 year in the UK before the start of divorce proceedings, she will be able later to apply for Settled status (once she has 5 years in the UK).

Otherwise, if the marriage didn't last that long, she won't qualify for retained rights of residence. This means she would have to find a different route or leave the UK.

Short of Tier 2 (sponsored by employer), there is no "gap visa" or temporary visa or similar device to stay in the UK.
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nordsee
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Germany

Re: Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Mon Jul 06, 2020 3:12 am

Hi Zerubbabel,

Thank you for your reply.
Zerubbabel wrote: ↑
Sun Jul 05, 2020 10:10 am
 Hello

If the marriage lasted 3 years including minimum 1 year in the UK before the start of divorce proceedings, she will be able later to apply for Settled status (once she has 5 years in the UK).
This is both given. We are married for about 5 years and we are in the UK for 2.5 years. Do you have a link to official Home Office guidance on this?

Her current "Family member of an EEA national" Visa is valid for 3 more years. However, if I have understood correctly, this won't be valid anymore once I left the UK even if we would just stay married. Correct?
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geoeng
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by geoeng » Mon Jul 06, 2020 7:17 am

nordsee wrote: ↑
Mon Jul 06, 2020 3:12 am
 This is both given. We are married for about 5 years and we are in the UK for 2.5 years. Do you have a link to official Home Office guidance on this?
https://www.gov.uk/settled-status-eu-ci ... ss-citizen
I'm just a guy on the Internet who immigrated to the UK. My opinions are based on my experience and interpretation of the immigration rules and should not be considered legal or immigration advice; your mileage may vary.
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Zerubbabel
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by Zerubbabel » Mon Jul 06, 2020 7:59 am

Her current "Family member of an EEA national" Visa is valid for 3 more years. However, if I have understood correctly, this won't be valid anymore once I left the UK even if we would just stay married. Correct?
Yes, I agree. Article 10 cards bearing the mention "Family Member of an EEA national" are valid as long as the EEA national is exercising Treaty Right (I am talking here about the 5-year cards).

However, most often than not, the Home Office doesn't monitor the EEA national whereabouts and actively invalidate these cards once the the EEA national has left the UK. Actually, nothing will happen when you leave the UK. It's only when the Article 10 card holder interacts with the Home Office like: renewing card, extending, card lost, responding to ECO questions at airport... then the invalidation is triggered.
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DerickChu
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by DerickChu » Mon Jul 06, 2020 10:06 pm

You said you guys are married for 5 years and been in Uk for 2 years and half, it all means he can stay in uk without.
He is legally required to apply for retained right of residence, if she had a job to enable her to live and work in uk with you unfortunately.
5years or marriage and 2and half years together means you have no power to send her back.
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nordsee
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Germany

Re: Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Wed Jul 08, 2020 6:06 am

DerickChu wrote: ↑
Mon Jul 06, 2020 10:06 pm
 You said you guys are married for 5 years and been in Uk for 2 years and half, it all means he can stay in uk without.
He is legally required to apply for retained right of residence, if she had a job to enable her to live and work in uk with you unfortunately.
5years or marriage and 2and half years together means you have no power to send her back.
I am not sure if you have understood my question correctly. I want her (non EEA) to be able to stay in the UK and work in her current job, while I (EEA) leave the country.
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nordsee
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Germany

Re: Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Wed Jul 08, 2020 6:08 am

Zerubbabel wrote: ↑
Mon Jul 06, 2020 7:59 am
Her current "Family member of an EEA national" Visa is valid for 3 more years. However, if I have understood correctly, this won't be valid anymore once I left the UK even if we would just stay married. Correct?
Yes, I agree. Article 10 cards bearing the mention "Family Member of an EEA national" are valid as long as the EEA national is exercising Treaty Right (I am talking here about the 5-year cards).

However, most often than not, the Home Office doesn't monitor the EEA national whereabouts and actively invalidate these cards once the the EEA national has left the UK. Actually, nothing will happen when you leave the UK. It's only when the Article 10 card holder interacts with the Home Office like: renewing card, extending, card lost, responding to ECO questions at airport... then the invalidation is triggered.
To be fair, I've thought about that. However, I am not sure how risky this is (e.g. deportation truck at 5am?) plus she is travelling internationally for her work.
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nordsee
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Germany

Re: Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Wed Jul 08, 2020 6:12 am

geoeng wrote: ↑
Mon Jul 06, 2020 7:17 am
nordsee wrote: ↑
Mon Jul 06, 2020 3:12 am
 This is both given. We are married for about 5 years and we are in the UK for 2.5 years. Do you have a link to official Home Office guidance on this?
https://www.gov.uk/settled-status-eu-ci ... ss-citizen
Thanks for this. We have both already been granted pre-settled status. But her status was granted based on our relationship. Does holding pre-settled status already enable her to stay in the country even without me present?

My aim is here that I want her (non EEA citizen) to keep her job and stay until she feels she wants to move on. If we stay married or divorce for this doesn't really matter for me. Whatever suits best in line with home office requirements. The only thing is that I (EEA citizen) will be leaving the UK. And on this point I'm not entirely clear yet.
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vinny
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by vinny » Wed Jul 08, 2020 6:39 am

She may be unable to retain a right of residence without a divorce.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.
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nordsee
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Germany

Re: Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Wed Jul 08, 2020 6:41 am

vinny wrote: ↑
Wed Jul 08, 2020 6:39 am
 She may be unable to retain a right of residence without a divorce.
HI Vinny, do you have a link to official Home Office guidance (i.e. one of these lengthy PDF documents) on this?
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vinny
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by vinny » Wed Jul 08, 2020 6:47 am

EU Settlement Scheme:
EU, other EEA and Swiss citizens and their family members.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.
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nordsee
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Joined: Sat Jan 09, 2016 6:17 pm
Germany

Re: Right to remain of non EEA partner after seperation/ divorce

Post by nordsee » Wed Jul 08, 2020 6:52 am

Excellent, thank you. I'll go through it and will post my reply here.
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nishants85
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by nishants85 » Wed Jul 08, 2020 8:14 am

I am in a similar situation.
My wife (EEA national) is leaving the UK for good as she cannot find a suitable job here and will try to find a proper job in her country (we will remain married). I might plan to live in her country after a few years though.

We both have been granted Pre-Settled status (valid till June 2024) and have been living in the UK for more than 4 years.

I called Home office yesterday, and they mentioned that I am allowed to stay in the UK till June 2024 (till the validity of my pre-settled status) and then will have to contact the Home office again. So, from what I understand, I will have to relocate out of the UK when my pre-settled status expires.
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nishants85
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by nishants85 » Wed Jul 08, 2020 11:15 am

nishants85 wrote: ↑
Wed Jul 08, 2020 8:14 am
 I am in a similar situation.
My wife (EEA national) is leaving the UK for good as she cannot find a suitable job here and will try to find a proper job in her country (we will remain married). I might plan to live in her country after a few years though.

We both have been granted Pre-Settled status (valid till June 2024) and have been living in the UK for more than 4 years.

I called Home office yesterday, and they mentioned that I am allowed to stay in the UK till June 2024 (till the validity of my pre-settled status) and then will have to contact the Home office again. So, from what I understand, I will have to relocate out of the UK when my pre-settled status expires.
Correction to my previous comment: I called the EU settlement Helpline*
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DerickChu
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Belgium

Re: Right to remain of non EEA partner after seperation/ divorce

Post by DerickChu » Thu Jul 09, 2020 12:27 am

nordsee wrote: ↑
Wed Jul 08, 2020 6:06 am
DerickChu wrote: ↑
Mon Jul 06, 2020 10:06 pm
 You said you guys are married for 5 years and been in Uk for 2 years and half, it all means he can stay in uk without.
He is legally required to apply for retained right of residence, if she had a job to enable her to live and work in uk with you unfortunately.
5years or marriage and 2and half years together means you have no power to send her back.
I am not sure if you have understood my question correctly. I want her (non EEA) to be able to stay in the UK and work in her current job, while I (EEA) leave the country.


If you indeed want her to stay in uk while you are gone, then the best thing is just to leave without informing the Home office.
A friend of mine did the same, so if you care about her and want her to continue living in uk without further stress, then just leave the country without informing Home office about your martial situation until you are divorced is completed.
You lose nothing and she lose nothing...

Again, settlement status is based on residence rather than dependency..

Alternatively, even if you inform home office with intention of sending her back, unfortunately its no longer possible in your exact situation because she has reach a “stage of no return” to stay in uk on her own ground.
While i totally understand your point it’s best you focus more on getting a divorce over her ability to stay in Uk without you.
So worry more about getting a divorce.
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nishants85
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Posts: 31
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Re: Right to remain of non EEA partner after seperation/ divorce

Post by nishants85 » Fri Jul 10, 2020 6:53 am

DerickChu wrote: ↑
Thu Jul 09, 2020 12:27 am
nordsee wrote: ↑
Wed Jul 08, 2020 6:06 am
DerickChu wrote: ↑
Mon Jul 06, 2020 10:06 pm
 You said you guys are married for 5 years and been in Uk for 2 years and half, it all means he can stay in uk without.
He is legally required to apply for retained right of residence, if she had a job to enable her to live and work in uk with you unfortunately.
5years or marriage and 2and half years together means you have no power to send her back.
I am not sure if you have understood my question correctly. I want her (non EEA) to be able to stay in the UK and work in her current job, while I (EEA) leave the country.


If you indeed want her to stay in uk while you are gone, then the best thing is just to leave without informing the Home office.
A friend of mine did the same, so if you care about her and want her to continue living in uk without further stress, then just leave the country without informing Home office about your martial situation until you are divorced is completed.
You lose nothing and she lose nothing...

Again, settlement status is based on residence rather than dependency..

Alternatively, even if you inform home office with intention of sending her back, unfortunately its no longer possible in your exact situation because she has reach a “stage of no return” to stay in uk on her own ground.
While i totally understand your point it’s best you focus more on getting a divorce over her ability to stay in Uk without you.
So worry more about getting a divorce.

Do they not scan the ID/passports at the border when you leave the country? I am not sure if a history of travel is being maintained. I am in the same situation and will fall short by only 4 months to complete 5 years of continuous residence and I am thinking that my spouse can enroll for an education course which should cover 5 years period (as a 12-month absence is allowed for important reasons which includes studies).
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