retention of rights

after agonising weeks i have decided to informed the ho about my divorce to my eea partner. my question is this: as i have 6 years payslips and p60 including proof that we were living in the same address up till the time of divorce of my ex shall i send them all to the ho? my fear is they will said i was already entitled to permanent residency and therefore i should produce my ex passport which it is impossible to have.i do however have her residence card that was issued to her in 2006

brief history again:
married may 2003
applied for residency in 2004
residency refused asked for reconsideration and granted residency in 2006 expiring sept 2011
divorce decree absolute may 2010
no childrens
i have payslips from 2004 till may 2010 also hm & custom working history letter to back up the 6 years but the relation with her has just gone downhill
question again shall i send only the last year payslip up till the final decree or shall send the whole 6 years
i just do not want to take the risk staying there without letting them know i have divorced help please

ngueda2009 wrote:after agonising weeks i have decided to informed the ho about my divorce to my eea partner. my question is this: as i have 6 years payslips and p60 including proof that we were living in the same address up till the time of divorce of my ex shall i send them all to the ho? my fear is they will said i was already entitled to permanent residency and therefore i should produce my ex passport which it is impossible to have.i do however have her residence card that was issued to her in 2006

brief history again:
married may 2003
applied for residency in 2004
residency refused asked for reconsideration and granted residency in 2006 expiring sept 2011
divorce decree absolute may 2010
no childrens
i have payslips from 2004 till may 2010 also hm & custom working history letter to back up the 6 years but the relation with her has just gone downhill
question again shall i send only the last year payslip up till the final decree or shall send the whole 6 years
i just do not want to take the risk staying there without letting them know i have divorced help please

I believe you are due for PR. I will advise you apply by using form EEA4 with every document to prove that you have been living in the country for a period of 5 years and both of you are exercising your treaty right during this period. You have already retained your right of resident since your marriage have lasted for 3 years and both of you live in uk for a period of one year within this 3 years. I am just in your position, I got married in 2004 and the resident permit granted in 2006. we divorced in 2009 and I have put in my EEA4 application since March 2010. I have COA and now application awaiting consideration from HO.

thanks for your reply did you provide your ex passport ? and how long where you married for

yusfaith wrote:

ngueda2009 wrote:after agonising weeks i have decided to informed the ho about my divorce to my eea partner. my question is this: as i have 6 years payslips and p60 including proof that we were living in the same address up till the time of divorce of my ex shall i send them all to the ho? my fear is they will said i was already entitled to permanent residency and therefore i should produce my ex passport which it is impossible to have.i do however have her residence card that was issued to her in 2006

brief history again:
married may 2003
applied for residency in 2004
residency refused asked for reconsideration and granted residency in 2006 expiring sept 2011
divorce decree absolute may 2010
no childrens
i have payslips from 2004 till may 2010 also hm & custom working history letter to back up the 6 years but the relation with her has just gone downhill
question again shall i send only the last year payslip up till the final decree or shall send the whole 6 years
i just do not want to take the risk staying there without letting them know i have divorced help please

I believe you are due for PR. I will advise you apply by using form EEA4 with every document to prove that you have been living in the country for a period of 5 years and both of you are exercising your treaty right during this period. You have already retained your right of resident since your marriage have lasted for 3 years and both of you live in uk for a period of one year within this 3 years. I am just in your position, I got married in 2004 and the resident permit granted in 2006. we divorced in 2009 and I have put in my EEA4 application since March 2010. I have COA and now application awaiting consideration from HO.

You are due for PR but HO will not issued you PR if you cannot provide your wife`s passport.It is better you retain your right of residence following divorce,then apply for PR afterwards.Mine PR was refused in Feb,2010 because my spouse passport had expired.I lodged an appeal after my spouse provided me her new passport and won my appeal.Without your wife`s passport it will be difficult to get your PR.Go through the divorce process,retain your right of residence in this case you are no longer a family member of eea national and therefore does not need to provide her passport.

i have already divorced and i have all the evidence that she was working from 2004- till a least after the divorce.

To ngueda2009

Just wanna say what i think based on stories of other people experience...

You are divorced....Ur marriage lasted over three yr rule.... and now its past 5 yrs as well where u apply for PR in any case....Right?

What i think is that if you will apply now using EEA4 they will be expecting ur wife's ID or passport as well.... Not necessorily but probably based on past(HO staff ----loooool)

Other seniors can probably give u even better solution i belive.....
But the way i see it to make it done is....

1-Send EEA2 application for retention of rights based on divorce and write with cover letter that u are eligible for PR as well based on u exercising treaty rights after divorce till 5 yr completion.....

2-If they send u with RC again thats fine u can send straight back with EEA4 app for PR

I am not sure if u send them EEA4 with divorce they will understand it... As this has happend to some other people.... in a different way but wrong interpretation YES

So i would say take ur time and think how they would interpret ur application.... Let seniors talk.. and they will tell u better if they think one is telling wrong...

Have a nice day
Regards

thank for the advice please seniors can you help here

ngueda2009 wrote:thank for the advice please seniors can you help here

Totally agree with JackEM, retain your rights first and then apply for PR on EEA4, will save you alot of explaination and also heart ache. Once you retain your rights you are independent and as long as you can prove that you have been exercising treaty rights for the past 5 years you will be able to get your PR.

Hope this helps

As I mentioned earlier you cannot apply for PR using EEA4 without your spouse passport.EEA4 is for those who are still family member of eea national and want to apply for PR having exercise the treaty rights for 5 continuous years.In your case you are no longer family member of eea national since you have divorced.You have to retain your right of residence first,afterwards PR.If you apply for PR in your present situation HO will request for your ex passport which you do not have.

How does the confirmation of the retained right of residence look like? Is there a separate vignette stating this? Or a template letter from UKBA, saying that you are in the UK as a family member of an EEA national does the job?

I thought they simply issue another RC for 5 years. What form, if not EEA4, should she fill out?

The person, generally, can apply directly on form EEA4 for the PR after retaining right of residence and residing here for 5 years, which is automatic!

To inform the UKBA prior to that, is simply an advantage and helps when it comes to applying for PR later.

This is still a grey area, as most of the time EEA nationals' ID cards/passports can't be provided (due to acrimonious separation) and people resort to all sorts, from private investigators confirming that EEA national was/is working, to certified copies etc.

I don't think there's any guidance at the moment on this, and many people who had been refused, end up going to court, but we don't see them on these forums.

It is a hard process if hubby don't wanna co-operate, but in the end most people cling on despite. You wouldn't expect people to be shipped off to their countries that easily. Just the inconvenience of the long waiting times and inability to afford a decent solicitor (if you find one, as most only do shallow immigration work).

troubled wrote:As I mentioned earlier you cannot apply for PR using EEA4 without your spouse passport.EEA4 is for those who are still family member of eea national and want to apply for PR having exercise the treaty rights for 5 continuous years.In your case you are no longer family member of eea national since you have divorced.You have to retain your right of residence first,afterwards PR.If you apply for PR in your present situation HO will request for your ex passport which you do not have.

just an update of my situation. i have been granted the pr on the 15 december 2010 received it yesterday
thanks for your advice.

Hi.
Could you please tell me which form I need to fill in for the retention of residency application.
Thank you.

hi simon,
i did not filled a form i just send a cover letter and documents explaining my situation. please do not hesitate to ask any question

Hello everyone,

I was married to an EEA national for 6 years and lived together in the UK for 8 years. Currently I hold an EEA spouse visa which expires in November this year.

As I'm divorced, my ex-wife does not want to lend me her passport to apply for my permanent residency, and it's the only document I'm missing.

I read in a previous message that it's more convenient to apply for a Resident Card using form EEA2, instead of using EEA4 (as my immigration advisor has suggested).

If I obtain the Resident Card, how long do I need to wait to apply for the Permanent Residency (ILR)?

I'll be grateful for your help.

Thanks!

jc

as you are divorced you do not need your wife passport . also you do not need to fill any form i did not filled a form and i was granted pr.

troubled wrote:As I mentioned earlier you cannot apply for PR using EEA4 without your spouse passport.EEA4 is for those who are still family member of eea national and want to apply for PR having exercise the treaty rights for 5 continuous years.In your case you are no longer family member of eea national since you have divorced.You have to retain your right of residence first,afterwards PR.If you apply for PR in your present situation HO will request for your ex passport which you do not have.

European Commission's guide (which is basically a simplified version of the directive) seems to disagree:
http://ec.europa.eu/justice/policies/ci ... _ec_en.pdf

Chapter 7 Right of permanent residence
...
Family members who retained an autonomous right
to reside in the host Member State in event of your death,
departure or termination of family ties, may also acquire the right
of permanent residence on their own under the same conditions.

The directive and this guide also does not seem to require you to go through any additional administrative formalities like reapplying for RC to retain your rights. It only requires you to satisfy the specified conditions. (like being married for 3 years of which at least 1 spend in the country)
So HO has no legal ground to require applicants to first "retain" their right via application for RC again (as RC is not a permit, it is a mere confirmation of rights) and only then apply for PR. (for a confirmation of your PR actually as you acquire it "automatically" on the day 5 years later since the day you first entered the country with the intention to exercise treaty rights, provided that you have satisfied all other conditions)

hi,
like to share something new which happened to a friend . which is quite confusing according to what we have been discussing above or what we know ..

so the sanorio is ..

1. he has been married with a EEA national(German) and he got EE2 resident card for 5 years. After 3 years some months they got divorced she moved back to her native country .

2. he applied for the retention of rights and which he have been granted as well .
3. after completion of 5 years he applied for PR with all the docuemts required and he has been refused with right to appeal.

Reason the home office give is:
>>> in order to obtain PR he need to provide a prove that his ex wife has been excercising territy right for 5 years in uk either before divorce or after divorce.

I haven't get hold the complete section of law under HO do that ..once i,ll get that complete law terminology i,ll post that as well ..but in simplified version it is that what i mentioned above.

so people any insight on that ???? needless to say the poor guy is in a great shock

Thanks for the document, mastermind.

This is very useful, as it's incredible the lack of clarity and consistency in how they interpret and apply the regulation.

jc

See also OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003 and The Immigration (European Economic Area) Regulations 2006.

you are meant to tell the home office when your situation changes ie when you have divorced, hence why they have refused your PR application because according to their record you were still married and should have included your spouse's passport with the application.

you can still apply for PR by showing that your wife was still working untill the moment the Decree Absolute was granted and then show that yourself was exercising treaty rights from the moment the Decree Absolute was granted untill the end of 5 years qualifying period, example:

• -married Jan 2005, Decree Absolute may 2008 =3.5 years
  in this period you need to show that your wife has been exercising treaty right untill May 2008,

• -May 2008 - Jan 2010 =1.5 years
  you need to prove that in this period you were exercising treaty right on your own right.

• -Jan 2010 you can then apply for PR.

Ddoctor, tell ur friend to relax. It is another faux pas by incompetent caseworkers. This is unlawful even if the person didnt officially apply for confirmation of right to retain resid.

If a couple lived in another eu country for 2 years, then came over to uk and lived here for a year, the divorced person could retain right to reside having only lived 1 year in the uk! But he would have to stay further 4 years and "exercise" equivalent treaty rights for the 4 years. It could not be that that person can then be asked to produce proof of activity of the eea national 4 years down the line. I wonder what ukba would do if they faced such scenario.

Your friend has the right of appeal and the AIT will throw it out of court in the face of the ukba, if of course a senior caseworker doesnt notice his colleague's joke of a request!
My blood boils when i hear of such cases. Absolute disgrace.

ngueda2009 wrote:hi simon,
i did not filled a form i just send a cover letter and documents explaining my situation. please do not hesitate to ask any question

Hi ngueda2009,

I'm in a very similar situation to yours. Could you please tell me what documents did you provide.

Hi Dr nostaglza i was reading your reply.so you mean to say that in 3 years of marriage we have to show that eea national should have treaty rights in uk and after divorce we have to show that we have treaty rights i mean husband have treaty rights in uk in order to obtain PR.BUT IN MY CASE I WAS MARRIED IN FEB-08 SHE WASWORKING TILL THEN AFTER THAT SHE LOST HER JOB.I GOT MY RC IN DEC-08 THEN SHE STATRED SELF EMPLOYMENT AND STILL SHE IS A SELF EMPLOYED WHILE OUR DIVORCE IS GOING TO BE FINALISED VERY SOON.IN THAT CASE WHAT SHOULD I DO THEN

Hi dr nostagia

i was reading your reply.so you mean to say that in 3 years of marriage we have to show that eea national should have treaty rights in uk and after divorce we have to show that we have treaty rights i mean husband have treaty rights in uk in order to obtain PR.BUT IN MY CASE I WAS MARRIED IN FEB-08 SHE WASWORKING TILL THEN AFTER THAT SHE LOST HER JOB.I GOT MY RC IN DEC-08 THEN SHE STATRED SELF EMPLOYMENT AND STILL SHE IS A SELF EMPLOYED WHILE OUR DIVORCE IS GOING TO BE FINALISED VERY SOON.IN THAT CASE WHAT SHOULD I DO THEN

hi all. i been with my wife for 5 years and got married Oc 08. i was granted resident permit on Nov 09 expiring in Nov 2014, unfortunatly our marriage is not working anymore and we have decidde to devorce by the end of this year. my question is,
when is the best for me to apply for my retention right?
and how long is this retention rights for befor i can get ILR.
we both have been working and living together since wedding day and excersiing treaty rights,
many thanks for any advice.