ESC

Click the "allow" button if you want to receive important news and updates from immigrationboards.com


Immigrationboards.com: Immigration, work visa and work permit discussion board

Welcome to immigrationboards.com!

Login Register Do not show

EU spouse who is getting divorce

General UK immigration & work permits; don't post job search or family related topics!

Please use this section of the board if there is no specific section for your query.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

EU spouse who is getting divorce

Post by difficult_guy » Sat Jan 03, 2009 6:24 pm

Dear Sir/Madam,



I came to UK in January 2004 as a student. Then I got married with EU national in June 2005 here in UK. I got Spouse visa till 2011. Few months ago, my wife went back and she starts preceding divorce in court in her own country. Our marriage last more then three years. According to your some law websites, if you live as married with EU national and after three years, if marriage broke, then non-EU national can apply for PR. I want to know, do I qualify for PR? I have been working full time and I never applied for any state benefit in UK.

I really need your help, Please reply me ASAP

Three years ago, my wife worked only for couple of monthes, then she truned to a house wife. she got bank account, NHS card etc,
I want to know what other documents I need to produce?

Regards
Last edited by difficult_guy on Tue Aug 25, 2009 7:03 pm, edited 1 time in total.

mrlookforward
BANNED
Posts: 898
Joined: Fri Jan 02, 2009 12:49 am

Re: EU spouse who is getting divorce

Post by mrlookforward » Mon Jan 05, 2009 10:01 pm

difficult_guy wrote:Dear Sir/Madam,



I came to UK in January 2004 as a student. Then I got married with EU national in June 2005 here in UK. I got Spouse visa till 2011. Few months ago, my wife went back and she starts preceding divorce in court in her own country. Our marriage lost more then three years. According to your some law websites, if you live as married with EU national and after three years, if marriage broke, then non-EU national can apply for PR. I want to know, do I qualify for PR? I have been working full time and I never applied for any state benefit in UK.

I really need your help, Please reply me ASAP

Three years ago, my wife worked only for couple of monthes, then she truned to a house wife. she got bank account, NHS card etc,
I want to know what other documents I need to produce?

Regards
you will need t give solid proofs that you were with your eu wife for 3 yrs.

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Re: EU spouse who is getting divorce

Post by difficult_guy » Tue Jan 06, 2009 5:53 pm

my questions are,
  1. what is definition of evidance to prove that "I were with my eu wife for 3 yrs?"
  2. My divorce case is in other country of EU, can I apply for PR before getting "DEGREE OF ABSLOUTE", can I still apply for PR since I am defending my divorce case in court?
  3. I have been working through out my stay in UK, but she become house wife. I do have her bank statements, NHS card etc. is it enough evidence?
  4. how long it takes to Home Office to issue PR?
  5. can any body give me list of documents required for the application form?
  6. Whats correct fee?
  7. Do I need to hire solicitor to submit my case to home office, or this is case is simple enough to work out my own?
Regards

John
Moderator
Posts: 12320
Joined: Wed Nov 10, 2004 2:54 pm
Location: Birmingham, England

Post by John » Tue Jan 06, 2009 9:24 pm

I have edited your post, but only to add question numbers. My comments are :-
  1. simply that the marriage lasted 3 years before a divorce petition was lodged
  2. no, PR is only issued after 5 years of exercising EU Treaty Rights, and you have only been doing that since your marriage in 2005
  3. it is probably enough evidence to show that she was exercising her EU Treaty Rights, as a self-sufficient person
  4. allow 6 months
  5. the form you would use, if you were making an application now (which you are not) would be the EEA4. However that form does not cope well with your circumstance. Hopefully UKBA will design a better form before you need to apply next year
  6. £0 !
  7. As long as you have the required evidence then you probably would not need professional assistance
John

isceon
Member
Posts: 142
Joined: Wed Mar 12, 2008 8:16 pm

Post by isceon » Tue Jan 06, 2009 10:04 pm

I am afraid it is not that simple John :
The home office is requiring that te EEA spouse is or was exercising treaty right at the time of the divorce .
From what I read before for this case his wife is no longer in the uk and filing for divorce from the country of origine .
Will she come back to live in uk or has she left permanently ??
in the latter case he would lose his right of residence.
I might be wrong.....

John
Moderator
Posts: 12320
Joined: Wed Nov 10, 2004 2:54 pm
Location: Birmingham, England

Post by John » Tue Jan 06, 2009 10:15 pm

The home office is requiring that te EEA spouse is or was exercising treaty right at the time of the divorce .
Can you provide evidence of that please?
John

isceon
Member
Posts: 142
Joined: Wed Mar 12, 2008 8:16 pm

Post by isceon » Tue Jan 06, 2009 10:31 pm

I am still waiting myself for my PR and they asked me for evidence of treaty right for my ex (for the period of the divorce from decre nisi to absolute).I was lucky my ex is still in the country.
Others in the this forum had the same experience.
http://www.immigrationboards.com/viewto ... highlight=
Directive 2004 does not put such condition but HO interprets as they see it .

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Wed Jan 07, 2009 10:11 pm

Hi Mr John and other mates,

Thanks for your expert opinion but I still have more questions to clear my confusion I am living in,

a) According to my understanding with reference to your answer no-2, my three years of married relationships with EU wife makes me only ELIGIBLE for PR and give me rights to RETAIN in UK but I have to live under same status. Question is, to QUALIFY for PR status and to lead an independent life, despite separation or divorce proceeding, Do I have to live life as a spouse of my ex wife until my spouse visa expires (which in my case, I got married in, 07/05 but my visa was granted on 04/06)?

b) There is a fear of amendment or change in EU treaty its application to UK immigration law. Is there any possibility that I can apply before for PR before maturity of my 5 years of tenure of EU spouse visa?

c) How authentic and reliable will be all these documentary “evidenceâ€

thsths
Senior Member
Posts: 775
Joined: Sun Apr 29, 2007 8:14 pm

Post by thsths » Wed Jan 07, 2009 10:45 pm

difficult_guy wrote:a) According to my understanding with reference to your answer no-2, my three years of married relationships with EU wife makes me only ELIGIBLE for PR and give me rights to RETAIN in UK but I have to live under same status.
Yes, that is correct. You basically have a status similar to a European national now, and you can stay as long as you work in the UK (or exercise another treaty right). You will qualify for PR 5 years after started living in the UK under European law (that is probably since your marriage).
b) There is a fear of amendment or change in EU treaty its application to UK immigration law. Is there any possibility that I can apply before for PR before maturity of my 5 years of tenure of EU spouse visa?
I do not think that any changes are coming. The existing law from 2004 is still not properly implemented, so it would be too soon to introduce new legislation. And even if a new Directive is passed, European law is usually very careful not to affect existing rights.
c) How authentic and reliable will be all these documentary “evidenceâ€

malina
Newly Registered
Posts: 5
Joined: Fri Jan 09, 2009 10:14 pm

Post by malina » Fri Jan 09, 2009 11:26 pm

See for yourself:
Story of the person who applied for [b]EEA2[/b] after divorce and got it:
http://immigrationboards.com/viewtopic. ... ht=morpheo
and the person who applied for [b]EEA4[/b] after divorce who's still waiting:
http://immigrationboards.com/viewtopic. ... =retention

[b]How can you justify using EEA4 if you did not yet satisfy 5 years requirement?[/b]

So, as these stories illustrate, the correct way to me(which I have gone through successfully)seems would be to notify UKBA about change of circumstances in the Cover Letter and apply for EEA2 by sending all the necessary proves of [b]cohabitation for 3 years at least[/b], prove that your ex-spouse was present and exercising her right [b]at the time of divorce[/b], [b]prove of you not depending on public funds at the time of application[/b], marriage certificate,your passport, and most important of all DIVORCE Certificate(without it they will keep you application on a side until you send the final one).
You will then receive another 5 years visa based on your own right of retaining the residency.



If you decide to wait until your initial visa expire and then apply for EEA4 what are you going to tell immigration officer when you choose to travel meanwhile, regarding whereabouts of your wife?
They always ask if you are still married, are you going to lie?
And if you tell the truth you will be lucky if this officer has heard about right to retain the residence, what if not?

Anyway, the choice is yours.
Regards,

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Tue Aug 25, 2009 6:16 pm

I got a problem here. My wife went back to Sweden and sent me divorce, but I was not willing to give her divorce. Our marriage last over three years and I’m non EU spouse. She used to study in Sweden even after our marriage. Now she used her university documents in Swedish court saying that she never lived with me. But I got few documentary evidence that she lived here.

What is your suggestion regarding my case now?
Last edited by difficult_guy on Tue Aug 25, 2009 7:11 pm, edited 1 time in total.

John
Moderator
Posts: 12320
Joined: Wed Nov 10, 2004 2:54 pm
Location: Birmingham, England

Post by John » Tue Aug 25, 2009 6:46 pm

Our marriage lost over three years
Can you clarify, from the date of the marriage to the date the divorce petition was filed in the Court in Sweden, how long was that? Specifically, was it greater than, or less than, three years?
John

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Tue Aug 25, 2009 7:09 pm

..
Last edited by difficult_guy on Tue Aug 25, 2009 9:15 pm, edited 1 time in total.

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Tue Aug 25, 2009 8:53 pm

If your wife is saying she never lived with you in the UK or was exercising treaty in the period leading up to the initiation of the divorce, that could be a bit tricky.

Have you any evidence she was living with you?

Bills in both of your name.

Bank statements.

Medical Insurance.

If she attempt to show evidence that she was in sweden studying, during the time you are claiming she was in the UK, that could be bit of problem.
I am sure you very well understand the implications, don't you?
Smooth seas do not make skilful sailors

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Tue Aug 25, 2009 9:11 pm

..
Last edited by difficult_guy on Tue Aug 25, 2009 9:16 pm, edited 1 time in total.

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Tue Aug 25, 2009 9:13 pm

difficult_guy wrote:
Obie wrote:If your wife is saying she never lived with you in the UK or was exercising treaty in the period leading up to the initiation of the divorce, that could be a bit tricky.
I think my divorce is already done. Just few days ago I received few papers in Swedish language but I am not sure what they are about. I asked a lady from Swedish court to send me papers in English. let’s see
Obie wrote:Have you any evidence she was living with you?
I have her Bank statement, Medical card, Council vote registration, NI card, one of p60 which was issued in 2005, she did a voluntary job in local pharmacy and his manager is willing to give me some evidence.

Obie wrote:Bills in both of your name.
We both of us were living with my brother’s house. I and my wife been to local council’s office to apply discounted house, but I pulled my application with a fear that it may give me problem for my PR.
Obie wrote:Bank statements.
Yes I have her bank statements
Obie wrote:Medical Insurance.
She didnt have any medical insurance but she was registered with local doctor.
Obie wrote:If she attempt to show evidence that she was in sweden studying, during the time you are claiming she was in the UK, that could be bit of problem.
I am sure you very well understand the implications, don't you?

I think she was looking for a quick divorce in swedish court and I doubt if she will follow her case anymore, I dont know what sort of complication I may get here in uk with regard to my PR.

any suggestion

John
Moderator
Posts: 12320
Joined: Wed Nov 10, 2004 2:54 pm
Location: Birmingham, England

Post by John » Tue Aug 25, 2009 9:33 pm

difficult_guy, I see your problem as this. And I make clear that I don't agree with this interpretation, but this is how UKBA sees things at the moment. The point will get resolved in Court, possibly the ECJ, in due course.

That is, up to the moment of the divorce you are her "family member". The question, as UKBA sees it is, was she exercising EU Treaty Rights in the UK at that moment in time? The moment immediately prior to the divorce being finalised?

Or put it another way, in the eyes of UKBA, how can you possibly have protected rights after the divorce, if you had ceased to have rights at an earlier point in time?

Again I emphasise I don't agree with this interpretation, but you need to know what you are up against.
John

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Tue Aug 25, 2009 10:53 pm

Question is what is definition of EU Treaty Rights? We were both together here in UK in September but in October she went back to Sweden and sent divorce papers to me. As an EU national she had right to move, study and travel anywhere in EU.

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Tue Aug 25, 2009 11:20 pm

Difficult_Guy, unfortunately, as John eloquently stated, the UKBA don't see things that way. They have sought to, and continue to seek to curtail the rights of non-EEA spouse of EEA national's as illegally as they can.

John i accept your point and it is perfectly valid.

It is a shame and a complete charade that the UK courts haven't called the UKBA to account for this blatant distortion of the ECJ Diatta ruling, which is meant to protect Non-EU national spouses of EU national and not to punish or cause them undue hardship and difficulty.

In regards to you OP. I think your case might be a bit easier to solve than those community worker, as you would most likely not be required to provide payslips, due your estranged wife having exercised treaty rights as a Self-sufficient person.

OP i am assuming that before the Divorce absolute was issued, you two had been married for 3 years, including at least 1 year in the UK .

If you can answer yes to the above, i will suggest you compile all the above documents you have mentioned. You would need to get her bank statements, evidence that you were supporting her, like payslips, and the references from the voluntary organisation she was with.

To prevent any hassle, i will suggest the dates on the documents you supply are in line with the time the divorce absolute was issued.

The only potential difficulty that could crop up, is them saying , because the divorce absolute was issued in Sweden, your wife must have left the UK and hence your rights to stay in the UK is curtailed or non-existent after her departure.

I am sure you can argue that, if you can provide the above evidence.

I wish you all the best.
Smooth seas do not make skilful sailors

John
Moderator
Posts: 12320
Joined: Wed Nov 10, 2004 2:54 pm
Location: Birmingham, England

Post by John » Wed Aug 26, 2009 8:21 am

A point to make. Article 13.2(a) of the EU Directive that came into force on 30.04.06 reads :-
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;
So the 3-year period is not from date of marriage to date of divorce. Instead it is from date of marriage to the date of " initiation of the divorce" ..... the date the Divorce Petition is presented to the Court.

Also, a separate matter, if the wife was exercising Treaty Rights as a self-sufficient person, UKBA would ask for proof of health insurance, and do not accept that use of the NHS counts for this purpose. So question, did the wife have such health insurance? (Again personally I don't accept the UKBA interpretation, but just reporting how they would argue this.)
John

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Wed Aug 26, 2009 11:25 am

That is not rocket science, even my smart 10 years old brother was able to provide me an interpretation in clear English, when i asked him what he understood from it.

I gathered they are using the fact that in the ECJ ruling in Diatta's Case, the judges stated that until the divorce absolute is issued, the non-EEA national is still a family member. That was in a different context altogether, and the directive is clear enough for them not to try and find an interpretation for it.

In a separate matter, i am not sure whether the fact that the wife was once a worker in the UK, will exempt her from the medical insurance requirement, also the fact that she was previously a service provider in the period leading to the divorce will exempt her from that requirements.

With the Home Office, you just cannot tell.
Smooth seas do not make skilful sailors

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Wed Aug 26, 2009 5:13 pm

She initiated divorce after three years of our marriage registration date.

UKBA never ask for Medical Insurance at 2005 and why would they require me to provide my wife's Medical Insurance after divorce?

She was a housewife, She worked only for few months in 2005 (I got her wage slips) then she did voluntary job in 2008. I was working throughout and we both of us never apply for any state benefits. She kept visiting Sweden but we mainly resided in UK. Does it not make her qualify for exercising Treaty Rights as self-sufficient person? If not what else I may have to approve?

I visited one local law company, the guy told me, since my wife wasnt working through out, actually she doesnt qualify for Treaty Rights as self-sufficient person.

What is the best time to inform UKBA and what application forms I may have to use for it

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Wed Aug 26, 2009 10:04 pm

The Immigration (European Economic Area) Regulations 2006 wrote:
5.2 Retention of a right of residence following divorce or annulment of marriage /
dissolution of civil partnership
Regulation 10(5) of the 2006 Regulations makes provision for the following:
If the marriage or civil partnership has 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, then the third country national retains a
right of residence if:
(a) they are pursuing activity which would make them a worker or a self-employed
person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the UK who is either a worker,
selfemployed, or is a self-sufficient person.
If the non-EEA national is a student then they will not qualify, unless they are a student
with sufficient resources to be self-sufficient.
There are no applications available for Retention of rights category and if successful you will be issued with a Resident card valid for 5 years under your own right.
Application for Retention of Rights for Divorced Spouse wrote:
5.3 Making an application following divorce or annulment of marriage / dissolution of
civil partnership
The following documents must be supplied:
• Passports of the non-EEA family members
• Divorce certificate/certificate showing termination of civil partnership
• Evidence that at least one of the non-EEA family members is a worker, self-employed
or self-sufficient.
If we have not previously issued a residence card we must be satisfied that the alleged
EEA national is an EEA national and that the non-EEA nationals were living in the UK
with the EEA national prior to divorce / dissolution of civil partnership, and that EEA was
exercising Treaty rights during that time
I must be on the err of caution and say, they usually request evidence of EEA national economic activity / exercising treaty up to the time the divorce absolute was issued, but this 2006 regulation seem to be saying something different from my believe. Fingers cross.
Smooth seas do not make skilful sailors

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Wed Aug 26, 2009 10:13 pm

..
Last edited by difficult_guy on Wed Aug 26, 2009 10:15 pm, edited 1 time in total.

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Wed Aug 26, 2009 10:14 pm

Obie wrote:exercising Treaty rights during that time
What exact definition of treaty rights being exercised?


1) She worked first few months in UK. Afterward she stayed as a housewife in UK but kept visiting uni in Sweden.

2) I kept working throughout and both of us never applied any state benefit

3) we dont have any sickness insurance

4) The time she left, she was working on a voluntary job, I can get letter from a pharmacy manager with witness signatures as well

Is it enough to prove that she was exercising EU treaty rights in UK

Locked
cron