Retaining right to reside after separation (not divorce)

Hi everyone,

I am a EU citizen married to non EU citizen since November 2008.
We want to separate fairly soon, but we would avoid the divorce if possible and also would remain in the same house (at least for a while) due to financial difficulties.

Based on the info below, would you be able to tell me whether you foresee any problems re him retaining his right to reside in UK if we were to separate legally this year:

- He's on a 5 yrs spouse visa that expires in 2014 (visa obtained in 2009)
- I have been excercising treaty rights since 2007 in UK and in a permanent job (still in the same job but not sure anymore whether I will be staying in UK after we separate)
- He's always been working although his job is not permanent and doesn't have payslips for all places he's worked at.
- Prior to marrying me, he was on a temporary stay status, as asylum seeker application has been rejected.


Also, please:
- when is he supposed to tell HO that we've separated? I would assume this is when we actually get the separation deed document?
- Is there any difference in terms of separation / marriage? Does separation count as divorce? I wasn't too sure from the "chapter 5" on residence card application document (it mentions only divorce/dissolution)
- I am assuming he can stay at least till 2014 in UK or is there any reason or way they can revoke his visa?
- Can he apply for PR in 2014? (considering the separation and the fact that before he was a person that was technically only temporarily allowed in UK)


many thanks,
Lisa

It does not matter if you are separated or not. What matters is whether you are married or not. As long as you remain legally husband and wife, that is, up to the day the decree absolute is issued, he cannot and does not need to apply for retaining the right of residence. He has the right of residence.



- Can he apply for PR in 2014? (considering the separation and the fact that before he was a person that was technically only temporarily allowed in UK)

He can apply for PR in 2014 provided both of you you live in the UK all the time, you exercise the Treaty rights and you are still married. Otherwise, he cannot.

When did you get married?

...If his Residence card (that thing you mistakenly call "spouse visa") was obtained in 2009, you will soon have been married for 3 years. If you get a divorce after that, he will be able to retain his right of residence and later receive a PR. If you leave the UK without filing divorce, he will neither be able to retain his right of residence nor get a PR. You might also want to stay married and live in the UK until he gets the PR. The 5 years until the PR starts ticking when the following conditions are applied:

- you are married
- you are exercising the treaty rights
- you both are in the UK

So, it could be earlier than 2009 when he got his RC.

Yet again, you might reconsider your decision to separate/divorce and live happily ever after.

[quote="Nimitta"]It does not matter if you are separated or not. What matters is whether you are married or not. As long as you remain legally husband and wife, that is, up to the day the decree absolute is issued, he cannot and does not need to apply for retaining the right of residence. He has the right of residence.


Hi Nimitta and many thanks for your reply.
So, just to clarify, if we separate in UK we are still legally married hence wouldn't get decree absolute till we actually petition for divorce, right?

Also, does he still need to advise HO of the change in circumstances? Ie. even if it's not divorce but just legal separation?

Thank you.

Nimitta wrote: The 5 years until the PR starts ticking when the following conditions are applied:

- you are married
- you are exercising the treaty rights
- you both are in the UK

So, it could be earlier than 2009 when he got his RC.

Yet again, you might reconsider your decision to separate/divorce and live happily ever after.

Hi Nimitta,
Unfortunately I don't think things can be reconsidered..
My only concern is that I don't want him to loose his right to stay in UK, he's never asked for benefits and worked hard so to me he should retain his right to stay here..and I will help as much as I can.
Anyway, going back to question re when we married, we married in october 2008, so I would think now that he can apply for PR in october 2013, is that correct? And when you say that we still need to be married, do you mean that even if we are separated but not divorced this counts as still married?
I apologise if these questions sound a bit daft, but I found this bit very confusing in the documents I read.

As long as the marriage has lasted for > 3 years there should be no problem. Retention of rights can be applied for, where you can help him and after that no help is required when application for PR is made. Only docs required are from the Non EEA National not EEA National.

Please note as long as you are married there is no problem, even if you are seperated. The only time the marriage breaks down is when Decree Absolute is issued. Please note you are still very much married after Decree Nisi.

Lisa00 wrote:

Nimitta wrote: The 5 years until the PR starts ticking when the following conditions are applied:

- you are married
- you are exercising the treaty rights
- you both are in the UK

So, it could be earlier than 2009 when he got his RC.

Yet again, you might reconsider your decision to separate/divorce and live happily ever after.

Hi Nimitta,
Unfortunately I don't think things can be reconsidered..
My only concern is that I don't want him to loose his right to stay in UK, he's never asked for benefits and worked hard so to me he should retain his right to stay here..and I will help as much as I can.
Anyway, going back to question re when we married, we married in october 2008, so I would think now that he can apply for PR in october 2013, is that correct? And when you say that we still need to be married, do you mean that even if we are separated but not divorced this counts as still married?
I apologise if these questions sound a bit daft, but I found this bit very confusing in the documents I read.

Please note that if you are still married but you permanently leave the UK before 10/2013, he loses his rights of residence (even if the RC is still valid).

If you are divorced and you permanently leave the UK before 10/2013, he doesn't lose his rights (he can apply for retention of rights).

Many thanks everyone!! This is really helpful.

Just to make sure I understood correctly:

- If we are separate but don't divorce (before he applied for PR for example) then HO doesn't need to be notified as technically we are still married.
- If we are separated and I don't leave UK he will not have problems in applying in 2013 for his PR.
- Proof of me excercising treaty rights in UK is only required from oct 2008 to oct 2011 (ie. to cover 3 yrs of marriage)


Also, is there any way he gets refused PR at all, given as I said that he was on a temporary stay here, as refused asylum seeker application prior to marriage. Which type of docs he needs to send with PR application? That's probably for another section of the forum, but just trying to understand if it's absolutely certain that he won't have problems with gaining PR.

Lisa00 wrote: - If we are separate but don't divorce (before he applied for PR for example) then HO doesn't need to be notified as technically we are still married.

Correct.

- If we are separated and I don't leave UK he will not have problems in applying in 2013 for his PR.

Assuming you keep continuing exercising treaty rights. Just residence in the UK is not enough.

- Proof of me excercising treaty rights in UK is only required from oct 2008 to oct 2011 (ie. to cover 3 yrs of marriage)

Wrong. If separated but not divorced, he will need to prove that you (the EEA national) has exercised treaty rights for the whole 5 years. His employment is irrelevant.
If Divorced (after 3 years of marriage), he will need to show that you have exercised treaty rights until the divorce and that he exercised treaty rights from the divorce until he completed the 5 years needed.

Also, is there any way he gets refused PR at all, given as I said that he was on a temporary stay here, as refused asylum seeker application prior to marriage. Which type of docs he needs to send with PR application? That's probably for another section of the forum, but just trying to understand if it's absolutely certain that he won't have problems with gaining PR.

Check form EEA4 for what is needed. If not divorced, he will need proof from you and proof of residence in the UK. His immigration history is irrelevant.

Lisa, it seems like you got all answers.

Just once more... to help you avoid possible complication. If you leave the UK before 10/2013 for good or interrupt your stay for a period longer than 6 months while still married (although separated) that would posit a problem for your husband since he would not be able to retain his right of residence (still married) and neither he would be able to apply for a PR (EU family member leaving abroad and not exercising Treaty rights). It would be a stalemate.

Thanks for all the help everyone !