residence card problems

I hope somebody can help. This is my situation-

I am an Irish national but have lived in the UK for almost all of my life. I am married to an Algerian man and have three children with him.

My husband was previously married to a French national and was staying in the UK on the basis of being married to her. Things didn't work out and they parted. In september 2008 he finally got his divorce papers and in December 2008 we went to Algeria and got married there (up until that time we had only completed our Islamic marriage).

My husband had a five year visa stamped in his passport which was due to expire November 2009. The home office advised him that he could stay in the uk up until that time and then make another application.
When we returned from Algeria the immigration officers asked several questions and took copies of our marriage certificate, they crossed out the stamp in my husbands passport and put a different one which said he could stay until june 2009. We were told that we needed to make an application for a residence card in order for him to live in the uk.

I telephoned the home office to confirm that this is what we needed to do. I have 3 very young children who I look after so I am unable to work, I explained this to them on the phone and was advised that the family permit was the correct thing to apply for and that I should include my last p45 and details of my husband's full time employment and explain the situation in the 'additional information' section.

The application was sent of in March and last week my husband received a letter requesting details of my employment or other proof of me exercising treaty rights. But I don't fall into any of the categories.

We need to reply to the letter before 18th October, but what should we write? Does this mean my husband has no right to stay here? Will he need to go back to Algeria?
Should I apply for British citizenship and then my husband could apply for residency based on marriage to a British national in the future?

Sorry for such a long post but I thought it best to put as much info as possible.
Many thanks for any help and advice that you can give. Emma

The question is, had you husband married to the French national for 3 years before they divorced, and has he proof the French national was exercising treaty rights in the UK in the period, immediately leading to the initiation of the divorce.

If he meets the above requirements, he will be able to retain his right of resident, and the Immigration officer, would have been wrong to tell him to make a fresh application through you. If he doesn't, then they have the power to revoke it, as the conditions under which it was issued, has ceased to exist.

In fact, you do not need to provide proof of employment, as you have been in the UK all your life, and hence would have gained the right of Permanent Resident under EU law. You only need to provide proof that you have lived in the UK for five years or more and state what you have been doing and provide evidence to that effect.


Please supply more info about husband's length of marriage to French National, and the encounter with UKBA staff.

Emma, there is absolutely nothing to worry about. UKBA are wrong to ask you for such documents.

Once you notify them, of the length of time you have been in the UK, and what you did in the first five years of been in the UK, they will back down.

You can also apply for British Passport, once you have passed the life in the UK test, as you meet the requirements.

Agreed, the OP is a Permanent Resident in accordance with Directive 2004/38/EC and, as such, is not required to be exercising a Treaty right.

Thank you both for your replies, what a relief!

Obie, My husband got married to the french national in May 2004 and the divorce was granted in September 2008 She was at that time living in the uk but she had not been in employment for some time and was not a student , I know that she was claiming benefits so I doubt that she would have had sufficient funds to support herself. The immigration officers at Heathrow did not ask for any details about her.
At Heathrow when they checked my husband's passport they asked if I was the person named, my husband said no and they asked where that person was. My husband told them that he had since divorced from her. The officer went away to speak to his colleagues, came back and said that the visa wasn't valid anymore. My husband said that he was now married to me. The officer asked for the marriage certificate which we had and he also wanted the divorce papers which we had with us. He took copies, got one of his colleagues to look at the documents, he then said he was crossing out the visa and putting a new stamp inside which would last for six months and that my husband needed to make an application for a residence card so that my name would be in his passport. That was it.

Just to clarify, on the application form in the additional notes section I wrote that I had been living in the uk from the age of 2, completed all of my education here and had been working full time up until the time I had children should I just repeat this then? What should I send as evidence?

Many thanks, Emma

[b] Casework manual[/b] wrote:

1.10 Checks that must be conducted before a residence card can be issued
Prior to issuing a residence card a caseworker must be satisfied as to
• The non-EEA national’s identity (see Section 1.7 and 1.11),
• His/her relationship to the EEA national (see Section 1.,
• That the non-EEA national is in the UK and
• That the EEA national is a qualified person or has a right of permanent residence.

Therefore, you need to write to the Caseworker, notifying her that you are an EEA national with a right of Permanent Residence and hence do not need to be a Qualified person ie (Worker, Self Employed, Student, Self-Sufficient), for the residency of your husband to be processed.

You can also quote the Caseworker instructions to her, just in case he/she is unaware.

If he or she is disputing that you have been in the UK for five, in the period immediately leading to your husband's application being submitted, then send them evidence of your education, proof of residence in your address or past addresses, past P60 if you have it, voter registration information and etc.

Perhaps you might want to consider applying for a British Passport, not that it would have been vital to this application, to the contrary, but it will certainly be necessary for the future, and open other avenues to you.

Hi,
Just to update.
We replied to the letter stating that I am an EEA national with the right of permanant residence therefore my husband's application could be processed without needing to show that I am a qualified person. We also quoted the caseworker instructions.
But today, in the post we received a response. Apart from the first line which read "in response to your recent letter......" it is exactly the same as before- requesting that evidence be sent within 21 days that the EEA family memeber is exercising treaty rights.

The caseworker has obviously completely disregarded the first letter that we sent. What should we do now?
Would be really grateful for any help or suggestions.
Thanks, Emma

Did you provide them evidence to the effect that you are an EEA national with the right to Permanent Resident in the UK.

Just writing them and stating this will not suffice. You have to supply physical evidence covering a five year period, you have been resident in the UK.

Have you got access to five years P60, payslips, school reports, or college letter stating commencement and end of course. Council could also write letter stating how long you have been on voters register. GP practice could also state how long you have been with them.

Perhaps you could also pop to croydon and apply for a Permanent Resident Certificate. This is not compulsory, but it could be used as evidence that you have been in UK for a period of continuous 5 years.