Urgent Advice

Please does it matter that i havent lived with eu national since august 2007 before divorcing to retain rights of residence. Recap: married June 2004, residence card issued 2006 April. Separated august 2007,divorce proceeding started January 15,2010. Absolute granted 2010 April 16th. EEA national exercising treaty rights on job seeker at the time of divorce made absolute. And national insurance bill covering january and februrary 2010 for eea national and comprehensive insurance valid from December 2009 till December 2010. Because solicitor is saying they can argue that we havent lived together for almost 3 Years prior to divorce initiation. Please need your urgent advice

If you live seperately but are still married you are considered a family member of the eea national. You only cease being a family member once you get a decree absolute. So I reckon that the HO will consider you to be a family member until the decree absolute was granted.

Bobobo, is it the day of decree absolute or the day of initiation of divorce? I think it is the latter

Its the Decree Absolute which ceases all rights. Divorce initiation is a process where you file for divorce. The difference is that after initiation of divorce you can withdraw the case and hence are not divorced. Once DA is issued it clearly means that you are free to re-marry again, so only after DA is issued does one cease to be a Family Member.

See also OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003

The earlier the better, change your solicitor, he doesn't seems he knows what is talking about. your marriage have lasted for 3 years according to your post june 2004 to August 2007, that is 3 years and 1 month and you were both living together b4 seperated in August 2007. you have retained your right and you can apply for your PR now if you can proof that your ex was exercising her treaty right up to when DA was issued. it doesn't matter that you have seperated since 2007, you are still considered EU family untill the day DA was pronounced.

Agree with Yusufaith. Make sure however that you can prove than your ex has been exercising treaty rights from the initiation until the grant of Decree Absolute. if you cant do this then you are in for trouble. If you have the proof then you can apply for PR using either a Covering Letter or EEA4 form

Thank you all, what I don't get is do I have to provide evidence of treaty rights for ex-wife from marriage to divorce or just from initiation of divorce to absolute to retain right of residence.

you will need to prove that your ex spouse was exercising treaty rights in the UK throughout the marriage and SPECIALLY during divorce. This would make your case very strong

Tthe Border Agency sent their bundle today for my appeal hearing and it only consist of half of the documents I sent them and the important ones were not there like the letter from inland revenue asking eea national to complete tax return for tax year ending 2010, the insurance certificate wasn't there, prove we lived together for over a year, my employment documents they are not in the bundle, Is it what in their bundle that they are going to base their argument on,the bundle they sent me.Also the jobseeker payment for six months that she was on from march2010 till september 2010 that I sent with the reconsideration letter that she was excercising treaty rights during divorce and when divorce was made absolute that she was excersing her rights as a job seeker and it was for six months wasn't there either.