EEA spouse, divorce and...ILR

Hi All

The case is this:

A non EU citizen had married a EU citizen and got a five years visa. Should they come to divorce before the end of the five years requested to grant the non EU partner an ILR, is there still any chance that an application for an ILR goes through ?

I had contradictory legal advices on this case so I really need your help.

Many thanks.

is there still any chance that an application for an ILR goes through ?

Yes, but only if the marriage lasted at least three years in total, and they lived together in the UK for at least one year.

Actually, delete "ILR" and substitute "PR" .... Permanent Residence ... effectively the same .... granted to EEA citizens and their family members .... and free to apply for .... compared to the exorbitant charges for ILR from April.

Thanks John

As I have already requested different legal advices about this case can you tell where can I find a solicitor who is able to help with the procedure and who does interprete the law in the sense you put it.

Secondly, which apllication form to use in this case as all those available do not suit this specific case.

My regards.

There really is no ambiguity in the EU/EEA regulations that came into force on 30.04.06. But not all solicitors or OISC-registered advisers are up to date, hence the differing opinions.

How long have you been married? How long have you been living in the UK?

Hi John

Been married since july 2003 (visa from Dec 2003) and living here since Feb 2002.

regards

That's good, clearly you qualify. The form to use is the EEA4, but the problem is that such form has really not yet been adapted to cope with this circumstance. I think the best you can do is to complete it and enclose a covering letter pointing out that the marriage is no longer subsisting, but you qualify for PR under the terms of Regulation 10(5), Immigration (European Economic Area) Regulations 2006, that is :-

prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration

This new regulation i presume seperation but still married will not suffice? Does divorce proceedings already have to have been initiated before going this route

Being seperated and still married does not suffice under the "new regulation". You must be divorced or atleast have initiated the divorce proceedings to retain your right of residence.

Jabi, sorry I do not think that is quite right. Again I quote :-

prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration

There is nothing there about having "initiated the divorce proceedings to retain your right of residence". It is a question of the marriage having lasted at least three years "prior to the initiation of the proceedings for the termination of the marriage or the civil partnership". As long as that is the case, and they have lived in the UK for at least one year "during its duration", then the person retains the right to live in the UK on their Residence Card, and when time-qualified to do so, to apply for Permanent Residence.

John, you could be quite right but that gives rise to a couple of questions for me-

1) When the non-EEA family member retains the right of residence as a result of departure of the EEA national after 3 years but does not divorce, how does the non-EEA family member prove the retained right of residence? I couldnt find anything to include this scenario. Retention following a divorce is far easier as they will have a divorce certificate.

2) What happens if the EEA family member leaves after staying 1 year with his/her EEA family member in the UK but does not initiate the divorce proceeding until after 2 more years? Does the HO revoke the Residence Card as seen in Regulation 2.1 of Chapter 5 of the ECIs as the EEA family member is no longer exercising the treaty right? Does the rest of the 2 years required have to be outside the UK or inside UK after the initial one year in UK?

I wanted to bring to your attention earlier when you suggested to use the EEA4 form and then enclose the covering letter about the marriage not subsisting anymore that the letter which the HO enclose (ECD 3108) when returning the Passports endorsing the Residence Card makes it clear that you must IMMEDIATELY notify the HO/Directorate if your EEA family member decide to leave UK, or cease to exercise a treaty right or if you cease to be a family member.(emphasis are mine) Wouldnt it be against their instructions if a divorced non-EEA family member was to stay on till they are eligible to apply for the EEA4?

Any information you would have on this matter would definitely supercede mine and I thank you for putting me on the right track as I do feel I could be wrong about the necessity of divorce to retain the right of residence.

John, sorry but the more I look at it, the more I am inclined to go back to my original understanding of the Regulations. You must be divorced or have initiated the divorce proceedings to "retain" your right of residence. The 3 years of subsisting marriage is looked into only in the case of divorce or without a divorce at best in the case of departure of the EEA national (although how to prove the latter case is not clearly explained).

Being seperated does not give you the "right of retention" but rather the right of residence as a family member of a EEA national.

Doesn’t the HO only recognise divorce actually when it has been terminated by the courts and that while you are going through the process in their eyes you are still legally married?

Therefore a covering letter to this affect with form 4 stating you have filed for divorce so if there are back ground checks regards proving the marriage different address from a certain date would explain the discrepancies.

As the new form 4 requires proof of only the applicant (non-ea) having to prove treaty rights in terms of 5 yrs employment etc a bunch of p60s and the explanation letter should suffice?
Just thoughts ..

You only cease to be a family member when your divorce is final and the Decree Absolute is obtained. A covering letter with the EEA4 explaining the situation should do. After that the only check they can do is whether the EEA family member is in the UK exercising the treaty right and not whether the marriage is subsisting.

The proof of treaty rights being exercised by the non-EEA family member for the duration of 5 years must be enough in such cases.Nevertheless, keep in mind that the HO might also want proof that the EEA family member was resident with the non-EEA family member in the UK for atleast 1 year and that the marriage was subsisting for at least 3 years in total.

Hi,

Interesting debate indeed.

I am planing to leave the country for a couple of weeks on holidays and I wonder whether I have to tell the immigration officer on my return that I filled for divorce as they always ask question about my wife and if she is excercising the treaty and as specified in a previous post they usually understansd that your right to stay in the UK depends exclusively on tha fact that your marriage to the EU partner still hold and your 5 years visa ceasing to be valid since you are divorced.

Do you think they are suffuciently trained to handle such limit-cases ?

I am not really sure if it is wise from me to leave the country before finishing the divorce procedure...any suggestion ?

Many thanks.

I do not know whether the IO(Immigration Officers) are trained enough right now to remember that you do not lose your right of residence in the case of a divorce or seperation, but I suggest that you donot become the guinea pig who gets to find out how well trained they are.

When you do return from the vacation, I donot think that it is necessary for you disclose to the IO about the filing for divorce as you are not obliged to. Such information could make the situation very confusing for them to handle. As far as they are concerned, you are a family member until the absolute decree is obtained. But the onus is on the passenger to prove that the EEA family member is in the UK and exercising the treaty rights. Any way you know how to do that?

Practically speaking I find it unlikely that you will be denied entrance to the UK how ever one looks at your case. While I dont know whether it is the wiser alternative not to leave UK before your divorce is final, it definitely is the safer alternative.

Apologies to coming back to this point
But regards Directive 2004/38 Regulation 10(5)

Can I confirm that you have to be divorced or initiated proceedings for the ruling to be beneficial and that you cant you this regulation if you are separated but still married?

What if you are getting divorced via the 2 or 5 yr rule ?

hi sorry for opening this topic again. im just confused how you can prove your eea national you are divorced from she,s or he still exercise treaty of right .if your relation its not friendly any more with your ex. and do you need to prove about the past or about present ? thanks again.

no answers guys????

cant really understand your post on the 19th
but regards the directive, have just gone through the process

For the directive to apply you have to have been issued with a decree absolute

please, i would like to know, what is one begins divorce proceedings after three years and lived in the uk with the spouse for only 2 out of the 3 years, the third year was seperation. Can they still apply for ILR?

Someone just told me that the HO will ask for proof of cohabiting for 3 years! is this true?

Please help.

Can they still apply for ILR?

No they cannot, not now, not ever!

But if the question was, can they apply for PR ... Permanent Residence ..... then the answer is yes! You think ILR and PR are the same thing? Well in a sense, yes, but there are most certainly differences, for example, an applicant for ILR needs to have passed the Life in the UK Citizenship test, but an applicant for PR does not.

3 years together? Not surprised they will want some proof the two of you lived together for at least 3 years, of which at least 1 year must be together in the UK. After all, if no proof required, those forming a marriage of convenience would find it rather easy to get around the rules.

Thank you

Hello there.
Just seen all the post. I think I clearly could stay in the UK as me and my EU spouse lived in the UK and been married for 4 years. Also we both were working and I was even studying during that time. We separated from augus this year but still married. Eventually we will go fullfill divorce papers.
The question is - should I inform HO after divorce and and what type of wisa should I apply for then?
Would it be same residency card of spouse of EEA national as I have now or something different?
And would the new visa/ stamp make my travel to schengen sone easier in some way?
Would it be possible to apply for PR after 5 years in the UK anyway?
Thanks

The question is - should I inform HO after divorce and and what type of wisa should I apply for then? Yes need to inform them and you would use EEA2 to retain your rights...You need to prove ex was exercising treaty rights up until the date the divorce is made absolute.

Would it be same residency card of spouse of EEA national as I have now or something different. yes residency card for 5 years.

Would it be possible to apply for PR after 5 years in the UK anyway? Yes. Other posters in this forum have now found out they need to include proof your ex was exercising treaty tights for the whole period of the marriage. So keep as much documentation as possible

And would the new visa/ stamp make my travel to schengen sone easier in some way...I don't think so

M

I am a spouse of an EEA national and would like to apply for PR. However, my passport has expired and have been waiting for my new one for over 12 months now. Have been told by HO that they cannot issue my PR on an expired passport even though I have proof of receipt that I applied for renewal 12 months ago. Don't know how to deal with this issue. Has anyone been in a similar situation. And if so, how did you go about it?