Need help & advise on (EEA4)ILR

Hi
I have entered to uk on 19/09/2001 as refugee, which my application was refused but i've never got any leaving letter or order from court or home office.
until 09/12/2003 that i married to my polish wife, which Poland joined to EEA group on 01/05/2004 and i've put my application for my visa on 2004 but it took home office 11 month to grant me a visa on September 2005 valid till September 2010. my marriage was dissolved on summer 2008 and according to European law if marriage lasted more than 3 years and then dissolved the non EEA member will not loose their right to stay.
although in order to get marriage visa i had to give back my application as refugee but my problem haven't been solved back home and i even couldn't get passport all these years and can't go back home as my life would be in danger.
now i want to apply for ILR can i still do it as i have lived with my wife more that 3 years? considering i've been living in this country since 2001? or I'm still on unknown status?
all my researches show that the length of marriage is irrelevant and only thing is important is 5 years since marriage which in my case originally would be 5 years on 09/12/2008 but because Poland joined EEA group on 01/05/2004 i think it's safe to say 01/05/2009 would be 5 years.
Am i still be able to apply for my ILR?

i have send my EEA4 application yesterday and i have included 68 pages of documents, from myself and my ex-wife, anything i could find, dated photo of us from our wedding, honeymoon, her birthday, copy of her passport that i had since EEA1,2 we applied, couple of her bank statements from that time, couple of her payslips from that time, employer letter from that time, her solicitor letter from 2008, asking me to sign the divorce documents, dissolve marriage letter from court, and for my self anything dated from 2001 that i have been in this country.
do you think they are alright?

matinuk2 wrote:now i want to apply for ILR can i still do it as i have lived with my wife more that 3 years?

You would apply for permanent residence or PR (not quite ILR, but similar), and I think you satisfy the requirements. You have been in the UK for 5 years under European law (by May), your marriage lasted 3 years (note: a period of separation does not count), and you need to prove the your spouse was working or exercising another treaty right until the divorce.

The passport should not be an issue, as long as you have some means of identification.

It is not going to be easy though: the UKBA will probably look for any opportunity to refuse PR. So you should get prepared for some arguments.

Where is your ex-wife now? Is she still in the UK? Or back in Poland, or elsewhere outside the UK?

And when the divorce petition was presented, was she still in the UK exercising EU Treaty Rights at that time? And if yes, have you any proof that was the case?

matinuk2,

Please let us know how this goes. There are a lot of people interested in the topic!

Just to create a link between thths and john's post, had you already been married for 3 years and living 1 year in the UK when the divorce proceedings were started?

Was the divorce amicable? If so you might be able to prepare your ex-wife for the possibility of further evidence being requested. (Even better if you can submit updated information/ID before they ask for it).

Good luck.

Thank you very much for taking time to read my post and giving me your advices.
well as i said, i've been living in uk since Aug 2001 and i haven't left the country even for a day, i got married on Dec 2003 and was living with my wife until 2006 then we lived separately but didn't get divorce until 2008 that we both decided to legalize our divorce and separation, i had the divorce absolute letter from court in jun or July 2008, even by that time she was still in uk, in fact we went together to her solicitor that i sign all the divorce documents.
As i said i have gathered 68 pages of documents from the day i came to this country, for our marriage, photos of our marriage, honey moon, her birthday, even a letter from her solicitor stating that they have been instructed by my ex to proceed the divorce, copy of her passport, her national insurance number, copy of arriving date stamp on her passport, several letter to her name for the places we lived together for the past couple of years(although we didn't had any joining account but i also had a bill or statements with the same address with my name which prove i was living in the same address at the same time). i had couple of her original bank statements, i had a cope of her EEA1 and my EEA2, a letter from her college, couple of her payslips from the time we have applied for our EEA1 and EEA2, a letter from her employee fro the time we have applied and anything i could get my hands on really.
i was kinda prepared, as i have spent lots of time in this site, therefore i have sent everything i had.
I am also planing to start to complain and send HO letter and email after 4 weeks if i don't receive any confirmation on receipt of my application and same after 6 month if i don't get the result, sooner you start to complain and more pain in the mule you get sooner you get the result, that is my experience from EEA2.
oh one more thing, because my ex has a new boyfriend and doesn't want him to know she was married before, she cut contact since last year we got our divorce, although i have emailed her to help me if she can but still haven't heard from her, but it's not important anymore, right?
the fact i have a copy of her passport and a letter from her solicitor stating she has instructed them to apply for divorce shows she was here in uk at the time of divorce, right?

Hi there.
I am very sorry that you are going through the same problems as myself.I am going to be very honest but all the docs you gathered won t help you at the present time if you don't get proof of treaty right of your ex at the time of divorce.The home office rightly or wrongly (the courts will decide soon hopefully) insist on that condition and always refuse the application if they do not see the evidence.
So my advise is find your ex and convince her to give you a letter of employment or other proof of exercising treaty right for the period of divorce (from decree nisi to decree absolute.
If you cannot provide such docs then get ready for the court get a good lawyer.
Good luck to us all
Isceon

The home office may have the option of getting proof that the EU citizen spouse was working from Inland Revenue. They may be able to check NI records or Income tax.

Directive/2004/38/EC wrote:The home office may have the option of getting proof that the EU citizen spouse was working from Inland Revenue. They may be able to check NI records or Income tax.

The Ho never bothers to check.
The onus of proof is always on the applicant.
As I said the best hope is that the court rules that it is not a condition from the 2004/38 directive but a pure creation of the UK.

isceon wrote:The Ho never bothers to check.
The onus of proof is always on the applicant.
As I said the best hope is that the court rules that it is not a condition from the 2004/38 directive but a pure creation of the UK.

I am not so sure the onus is always on the applicant under EU law. There are a number of situations where the onus is really on the government, for instance in providing proof before denying a residence card. The applicant does not need to prove the negative.

In this case the right of ex spouses would not amount to much if they were required to prove things which require the active coorperation of the divorced EU citizen.

isceon, practically speaking even if the HO asks for proof that the EU national was indeed exercising treaty right in the UK at the time of divorce, the income by the OP is enough to class her as 'self-sufficient' provided that there is other documents (which matinuk2 says he has a bucketload of). Since this is not a Surinder Singh application, I believe economical activity need not be proved.

matinuk2, in granting you the Residence Card, the HO has officially legalised your stay. However, to paraphrase an earlier question- what is the closest document that you have to prove that your wife was exercising any sort of treaty right at the time of your divorce?

Hi everyone and thanks for all your supports.
well

JA13I

I have my ex original NI number on the original letter was send by jobcentreplus which i am sure it can be checked for all the tax and national insurance paid, but also i have a letter from my EX solicitor which is dated on 28 june 2007 and it exactly says:

Dear Sir

Re: Matrimonial Matters

We are instructed by your wife, Mo.... P...., in this matter.
we understand that both you and our client have now been separated for a ...... our client would like to commence divorce proceedings on that basis with your consent.
In the circumstances we would be grateful if you could contact us to let us know you are agreeable to this course and we can then draft the appropriate petition.

in this letter they say that they have been instructed by my ex, so i was thinking if i could not get hold of my ex i can maybe go to this solicitor and get some sort of letter confirming at the time of divorce their client(my ex) was living in uk.

and i also have a copy of my ex first page of passport and also the page they stamped when she has entered uk.

i also had some photos dated till end of 2006.

Hi every one.
thanks for all your supports and help and advices.

i think i had a break trough yesterday, after several emails and contacting my ex trough Facebook, she has replied me back yesterday , saying she would be more than happy to help me, and ask me what document do i need?
i have asked her for couple of payslips from 2008(time of our divorce)and couple of bills from that period and now i'm waiting for her to let me know when she can give them to me.
if everything goes alright, hopefully, i will have all the documents HO need and this matter would be over soon.
at last i might have a bit of a luck after 9 years and get my PR and sort my life out.

Wish me luck

You have it from me... go break a leg!

Hi everyone
just a quick update on my situation.
after wasting couple of weeks of my time, my ex has changed her mind considering at first she has agreed to help me with papers, and let me know that she can not help me and wished me good luck,(no wonder why i couldn't live with her this woman is confused).
any way as an evidence i have forwarded all the emails that i had from her, at first agreeing she will help me and then decide not to, to my solicitor and he has printed them and attached to a covering letter sending with my application, hope it convince HO that i have tried to get the necessary documents but she is not willing to cooperate.
at least if it goes to court i have a stronger case with saying i have tried and she did refused the document, right?
at the end of the day i gave HO my ex original NI number letter from jobcenterplus, if they really need to see if she was exercising her right here they can always check it that way, right?
I am preparing myself for the court really, although my solicitor is more optimistic than me and he says with my case is less chance to go to court and hopefully will not go that far, but i guess i have to wait and see.
I will try to keep everyone updated.

Thanks

M

Hi everyone,
thanks for all your help and support.
my solicitor has sent my application more than month ago.
as you all know i have contacted my ex and asked for her help which she has refused, so i have sent my application without a prove of her income or residency at the time of divorce.
then i had a lucky break as i had a letter from her solicitor at the time of divorce so i gave her a call and asked her for a letter stating that she was instructed by my ex in person and also stating she was living in uk at the time of our divorce.
she was shocked at first that why HO would be asking for such a document but when i explained her the situation she agreed to give me such a letter in a letter headed paper.
long story short, she did and i did send it to my solicitor and he told me that contacted to HO asking for my file number in order to put it in an attachment he will send with this new document, which they told him, he needs to call back in couple of weeks in order to get the file number.
so here is all the update on my application, hope it helps someone else out there as this site helped me and gave a lot of information.

Thanks all

Martin

New Update on my application
Today i have received my COA letter from home office, exactly 6 weeks since has been sent by my solicitor.
i checked the time scale on the ukba website and according what they say there, they will deal with every case (up to) 6 month.
i have to say i was calling my solicitor for the last 2 weeks, nearly every day to make him contact HO for my COA, i think when they see they are dealing with law firm instead of private person, they know they can't bullshit them so there for they will respond more efficient.
as my solicitor goes to croydon every Monday so he knows his way around there, he said he never had any case taking more than 9month.
even in my EEA2 application that i had another solicitor although my application took 10.5 month but 3 month of it was my ex fault for not having all the necessary documents.
any way, wish for the best but i have all the complaint letters ready to be sent by email, by my solicitor, by myself and by my local MP, that as soon as 5th month up and still don't have any case worker allocated for my application, then start to bombard the HO with those complaint letters from every angels, every day untill get the respond.




wish me luck

Hi matinuk,

could you tell me some information about your case?
what's name of your solicitor if you don't mind?

thanks

mego_1980 wrote:Hi matinuk,

could you tell me some information about your case?
what's name of your solicitor if you don't mind?

mego_1980,

Why do you need the name of matinuk's solicitor? If I were matinuk, I would certainly not give that to a stranger on this board.

What sort of information are you interested in?

Hi Mego_1980
Well if you read my add from beginning it would give all the information about my case.
and as a matter of solicitor, his office base in north london and he charges a good money but in return he does a proper job, but the rest is up to HO.

Hi matinuk,

thanks for your replay, but regarding your solicitor is he chinesse one because my solicitor is chiness and he is very pouplar in london with immigration cases.

thanks

Hi Mego_1980
no he is not Chinese, he is white british guy practicing in central london.

matinuk2 wrote:Hi Mego_1980
no he is not Chinese, he is white british guy practicing in central london.

hi guys

im in the similar boat as all r in...i got married to eea in aug2003 got my passport stamped in 2004 with my leave untill feb2009...ourmarriae was going no where so i filled divorce petitin on aug2008 butgot nuffink than my solicitor did it again in nov2009 i receved my decree nissi end march and have just applied for abolut

as my leave was untill feb2009 so my solicitor filed for ILr in jan 2009 but i havnet heard anythng as yet .

please advice me
thanx
kapil

i had a bit of research and according to what i have found and understood from EU treaty 30/04/2006, receiving an RC or PR doesn't mean your permission for exercising of your treaty right but it only means a confirmation of that right by that member state, so same as EU citizen's exercising their PR automatically after 5 years even without applying for it so it is the same rules should apply for the non EU citizen who qualified too, right?
and again after 6 years since starting of exercising a treaty right, they should be eligible for naturalization in that member state.

anyone has any idea?