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Hello
I wonder if anyone has been through a similar situation or could advise how to proceed on the following:
If during the divorce proceedings the EU wife has intentionally stopped exercising any treaty rights and applied for income support and housing benefits.
What would be the chances for the Non Eu husband when applying to retain the right of residence:
they were married for 5 years, 2 years old EU child who stays with mum, living in the UK during all 5 years, wife was exercising treaty rights at all times just till getting separated and submitting the divorce application almost 6 months before completing the 5 years exercising treat rights. the husband has contact to see the child, pays child maintenance and works full time continually.
As far as I know and read the EU wife must be a qualified person during the divorce proceedings which is clearly missing in this case; wondering what is going to happen to the Non Eu husband to retain his ROR even getting at least a new residence card for 5 years if Permanent residence is not possible

hopeforee4 wrote:Hello
I wonder if anyone has been through a similar situation or could advise how to proceed on the following:
If during the divorce proceedings the EU wife has intentionally stopped exercising any treaty rights and applied for income support and housing benefits.
What would be the chances for the Non Eu husband when applying to retain the right of residence:
they were married for 5 years, 2 years old EU child who stays with mum, living in the UK during all 5 years, wife was exercising treaty rights at all times just till getting separated and submitting the divorce application almost 6 months before completing the 5 years exercising treat rights. the husband has contact to see the child, pays child maintenance and works full time continually.
As far as I know and read the EU wife must be a qualified person during the divorce proceedings which is clearly missing in this case; wondering what is going to happen to the Non Eu husband to retain his ROR even getting at least a new residence card for 5 years if Permanent residence is not possible

I am not sure that she should be claiming Income Support, if she does not have the 'right to reside' she cannot claim Income Support. She could perhaps claim JSA, as a jobseeker she may have the right to reside. Are you sure that she is claiming Income Support? Though, she could argue she still has the right to reside as the primary carer of the child - a so-called Chen case. Maybe that is what she has done. Though, for the UKBA I believe for such a person to be a qualified person they must have sufficient resources to ensure that the child did not become a burden on public funds. I think it would be wise for this person to seek professional advice.

Yes she is claiming income support, a single mum with a child under 5 years old

Hi, can you claim for benefits whiles you have the coa letter and non eu but married to an eu person n has a. child.
plz I just need reasonable and helpful suggestions. Thanx

hopeforee4 wrote:Hello
I wonder if anyone has been through a similar situation or could advise how to proceed on the following:
If during the divorce proceedings the EU wife has intentionally stopped exercising any treaty rights and applied for income support and housing benefits.
What would be the chances for the Non Eu husband when applying to retain the right of residence:
they were married for 5 years, 2 years old EU child who stays with mum, living in the UK during all 5 years, wife was exercising treaty rights at all times just till getting separated and submitting the divorce application almost 6 months before completing the 5 years exercising treat rights. the husband has contact to see the child, pays child maintenance and works full time continually.
As far as I know and read the EU wife must be a qualified person during the divorce proceedings which is clearly missing in this case; wondering what is going to happen to the Non Eu husband to retain his ROR even getting at least a new residence card for 5 years if Permanent residence is not possible

I would appreciate it if anyone could still advise about this situation

bonita wrote:Hi, can you claim for benefits whiles you have the coa letter and non eu but married to an eu person n has a. child.
plz I just need reasonable and helpful suggestions. Thanx

If you have the right to reside you can claim benefits.

The only circumstance in which someone can continue to have right of residence and be on income support, is if they retain their status as worker, are temporarily unable to work due to illness.

Recourse to Income support, can actually result in someone loosing their right of residence.

Obie wrote:The only circumstance in which someone can continue to have right of residence and be on income support, is if they retain their status as worker, are temporarily unable to work due to illness.

Recourse to Income support, can actually result in someone loosing their right of residence.

Indeed, hence why I was suspicious of the claim.

It may well be, that the OP's wife does have a right of residence, in which case, on the day of divorce, it may well be the case, that he cease to be a family member of an EEA national on termination of thier marriage, and at the time of the termination, he was residing in accordance with the regulations, as a family member of an EEA national with a right of permanent Residence.

Obie wrote:It may well be, that the OP's wife does have a right of residence, in which case, on the day of divorce, it may well be the case, that he cease to be a family member of an EEA national on termination of thier marriage, and at the time of the termination, he was residing in accordance with the regulations, as a family member of an EEA national with a right of permanent Residence.

Thanks Obie for your comments
In that case, provided that the EU wife is on income support on the date of divorce, the non eu husband can not retain the right of residence after the divorce even they have a 2 years old EEA child in the marriage???

It all depends on the circumstance, which we dont know.

If she has a right of residence which is an extended right within the meaning of Regulation 14 or a permanent Right of residence wthin the meaning of regulation 15, then the benefit will not be an issue.

Obie wrote:It all depends on the circumstance, which we dont know.

If she has a right of residence which is an extended right within the meaning of Regulation 14 or a permanent Right of residence wthin the meaning of regulation 15, then the benefit will not be an issue.

Obie all the circumstances are stated in the top post, the eu is not a permanent residence just yet but she was exercising her treaty rights just before lodging the divorce petition when she was doing a self employed job, so all about here during the divorce period there is no evidence of excursing any treaty rights

Have the divorce and any child contact arrangements been finalised?

He can retain a ROR if contact has to take place in the UK, and he is working.

Kitty wrote:Have the divorce and any child contact arrangements been finalised?

He can retain a ROR if contact has to take place in the UK, and he is working.

Thanks for your post
You actually raised a very important point which I am trying to identify whether you still need to prove that the EU national is exercising treaty rights on the date of divorce when applying based on having access to a child in the UK, the divorce is still ongoing, decree nisi should be announced in 4 weeks time, child contact order has just lodged and God only knows when an order will be issued.

I hope your point is right in a meaning to retain the right of residence merely and solely based on access to a child in the UK regardless of the eu national is a qualified person on the date of divorce????

Kitty wrote:Have the divorce and any child contact arrangements been finalised?

He can retain a ROR if contact has to take place in the UK, and he is working.

I am unable to share that view, as it is not backed by legislative provision.

That provision only exempt a person from the 3 years of marriage requirement, prior to the initiation of divorce.

It cannot be read as exempting a person seeking to retain their right of residence from the requirement of demonstrating they are family member of a qualified person on termination of their marriage, or to show they were residing in the UK in accordance with the EEA regulation on termination of their marriage.

I never touched upon that issue because you had already been married for over 3 years. It is therefore otoise to your circumstances.

Your wife may well have secured PR, or has a right of residence. It is difficult for me to make such declaration on the forum.

Is she prepared to provide you with evidence of her activity?

Obie wrote:

Kitty wrote:Have the divorce and any child contact arrangements been finalised?

He can retain a ROR if contact has to take place in the UK, and he is working.

I am unable to share that view, as it is not backed by legislative provision.

That provision only exempt a person from the 3 years of marriage requirement, prior to the initiation of divorce.

It cannot be read as exempting a person seeking to retain their right of residence from the requirement of demonstrating they are family member of a qualified person on termination of their marriage, or to show they were residing in the UK in accordance with the EEA regulation on termination of their marriage.

I never touched upon that issue because you had already been married for over 3 years. It is therefore otoise to your circumstances.

Your wife may well have secured PR, or has a right of residence. It is difficult for me to make such declaration on the forum.

Is she prepared to provide you with evidence of her activity?

Thanks Obie
I think you are right, the reality looks very painful in this situation, it was only 5 months away from completing the 5 years continuous treaty rights when the separation and lodging the divorce petition and started claiming the income support benefits, the 5 years would be completed on the date of decree nisi announcement next month. there is no contact and cooperation between the two parties but all previous evidence prior to lodging the divorce petition are available but they seem useless if the law only look at what she was doing at the date of divorce

There are lots of unknowns in this case. Why did she go into income suport? there must have been an underlying reason.

She cannot simply say, i want to wreck my estranged spouse retentin application, so i will commence income support.

Was she previously working? why did she live her job?

what evidence does the non-EEA family member have. Is he paying child support, this will make it difficult for her to claim income support, and force her to go to work. In any event, it could put her within the self-sufficiency category.

So all these unknown variable means, a clear an concise answer could not be given to your question.

Obie wrote:There are lots of unknowns in this case. Why did she go into income suport? there must have been an underlying reason.

She cannot simply say, i want to wreck my estranged spouse retentin application, so i will commence income support.

Was she previously working? why did she live her job?

what evidence does the non-EEA family member have. Is he paying child support, this will make it difficult for her to claim income support, and force her to go to work. In any event, it could put her within the self-sufficiency category.

So all these unknown variable means, a clear an concise answer could not be given to your question.

I am going to clarify some points for you here:
She used to be a self employed person just before getting separated and lodged the divorce petition at the same time she applied as a single mum lives with a 2 years old child alone so income support and housing benefits are granted to her, child maintenace doesn't affect her claim for benefits as far as I heard from other sources

It is not open to me, or anyone in particular ,to conclude your wife is not a qualified person, and does not have a right of residence. Or make statement to the contrary.

There are many circumstance in which a Self-Employed person can claim income support if they have a child under five.

It could well be the case, that she claimed she is self-employed, but on low income, or undertake self employed work for less than 16 hours a well.

In those circumstances, she will be entitled to Income Support, without loosing her rights as a Self-Employed.

Or she may well have deregistered and claim income support, but that is less likely, as she will have difficulty passing the right of residence test in those circumstance.

Again, there are lots of variable. Try and talk to your estranged wife, to ascertain what exactly the position is.

Do you get your 5yr permit before the 6 months as stated in the coa lettter from the home office

bonita wrote:Do you get your 5yr permit before the 6 months as stated in the coa lettter from the home office

NO I got the residence card a year later after I first applied
Does it make any difference to the case?

The time you were issued a Residence Card is immaterial, your right commence from the day you resided in the UK as man and wife. Provided she was exercising treaty rights from that day.

Obie wrote:The time you were issued a Residence Card is immaterial, your right commence from the day you resided in the UK as man and wife. Provided she was exercising treaty rights from that day.

You are right, I am totally aware of that point, as I said earlier the decree nisi will be issued, in June, on the same month when her continuous 5 years would be completed and the last 5 months of that she were on income support and housing benefits, So during the divorce proceeding she was not a permanent resident yet and not even exercising treat rights. From what I can see it needs a miracle to go through How I dont really know

Well, i have seen and dealt with cases that need miracles. Yours dont seem to quite fit those category.

You need to have a chat with your wife, or try and possibly use any legal unconventional means to get her tax history and self-employment record.

She may very well have right of residence, which is why she qualifies for those benefits.

Certain self-employed person are entitled to income support, without their right of residence being affected.

In any event i wish you al the best.

Obie wrote:Well, i have seen and dealt with cases that need miracles. Yours dont seem to quite fit those category.

You need to have a chat with your wife, or try and possibly use any legal unconventional means to get her tax history and self-employment record.

She may very well have right of residence, which is why she qualifies for those benefits.

Certain self-employed person are entitled to income support, without their right of residence being affected.

In any event i wish you al the best.

Thank you so much for your support
She is not co operating at all, she refused to help in this matter hoping that the husband would be kicked out of the country for ever and then she will be the only carer of the child, very strange attitudes you ever heard about, I have all the documents needed untill the date the divorce proceedings started so basically 4.5 years of documents, it is shame it is just the last 5 months, She was eligible to claim those benefits based she is an EEA who previously worked in the UK, How to obtain her current status of national insurance contribution? Do you know