Eu spouse

[Ella11]

Hello everyone,
Please I need a advice,my brother in law got married to a eu national 2009 and they have been leaving together since. Then he got another girl pregnant without telling anyone till his wife found out herself Nov 2013 being the baby's birthday and move out of the house to her mothers house. Already my brother in law have made plans of travelling for Xmas to South African. Then he came to my house and told me everything I was shock because the news came to me as a surprise, then we went to her mums house to look for her to beg her but they didn't let us in and she switch off her phone. To cut the story short then my brother in travel on his way back he was controlled by immgiration officer at airport and he was asked about his wife and her number he gave then her number and also the one she called him with to wish him happy new year. But she didn't pick any of them. Then they detend him for days at the airport then we went to tell her what was going on her family didn't still let us in. But later we manage to see her and explain everything to her. But she refuse to go and speak for him. He has been there for 4months now going to 5months they refuse to gant him bail. But the judge said that from their investigations that it's not a marriage of convince,that the time he said she move out of the house wasn't the date. I don't know what they want his wife is not happy with him because of what he did. So she is using this as an opportunity to punish him. They said he can't go for retain right of residence because he is still married to her. Please I need advice on what to do. She just want to render him useless,beach use that was what she told one of her friend today. Please I will appreciate any little advice. Thanks all

[MPH80]

Ok - some paragraphs would help - but I'm going to try and sum up:

1) Your brother-in-law (presumably through your other half) has been in the UK since November 2009 - or is it earlier? If so - what leave did he have before that?

2) He had an affair in 2013 and moved out of the family home

3) He left the country in November 2013 and, on return, was detained. Since then he's been denied bail - but it's not clear why to me.

4) Someone (who?) has said he doesn't have a retained right of residence as there's no divorce yet

So - beyond the questions I've already asked here are my follow ups:

Are there any children in the current relationship?

Is your brother in law working - either as an employee or self-employed - or is he dependant on others?

Has he been issued a removal notice?

[Ella11]

Thanks so much for your reply. So sorry about that. He has been in this country since 2006 I guess but I know they met 2007 according to him. Am not sure of his previous status before he got married.

He had an affair with another woman and got her pregnant 2012 then his wife (the EU national ) move out of the house when she found out about the baby 2013.

Now he has been in detention camp for 4months,going to 5months now,they refuse to grant him bail 4 times and his appeal was refuse too because the judge said that their marriage is shaking that his wife (the EU national ) is not happy with him and they are not sure that my brother in law is coming back from South African to her wife ( Eu national) .

Also the judge said in his decision that he is not qualified for retain right of residence because he is still married to his wife that he can only be qualified if they have divorced. Also no children involved and he has not been removed yet,still waiting for permission from upper tribunal to appeal the lower tribunal decision.

But his wife is just been mean. I just hope I was enable to give u the info you needed. Please bear with as am new in this forum.
Thanks once again for your concern

[Ella11]

I hope my little info will help. Thanks

[MPH80]

So has a removal notice been issued?

[Ella11]

No. He is still waiting for upper tribunal permission to appeal the lower tribunal decision. Thanks MPH80

[MPH80]

So his options are:

1) Await the upper tribunal

2) Agree to leave and head back to South Africa.

3) Possibly start divorce proceedings. However, I believe the only way that can be done - and IANAL - is by the wife (as she can cite the adultery) within the year - otherwise they have to have been separated for longer.

Without divorce - he can't retain the right of residence. If the marriage has broken down - then he has no right of residence here right now.

Others might have be more help - but the upper tribunal is his route for both the bail and the leave to remain.

I assume he has a good lawyer?

M.

[Obie]

This is completely wrong. How could they keep him in detention when he is still married.

The case should not have gone this far.

I dont believe his lawyer is inept.

They are still married. What the judge said is wrong.

The bail judge should have released him.

[dalebutt]

This is wrong, but difficult to express an opinion, it appears there is more to it than it seems, why would they keep him there for this long? Surely illegal detention on the basis of the information you provided? Serious actions are needed. Very troubling information, a lot of things seems wrong, the judges comment is very disturbing.

[Obie]

I dont think it is unusual at all.

I was involved with a case along this line but slightly different in that the EU national left the non Eu whiles his application was with the Home Office, she then withdrew her application for registration certificate, and UKBA wrongly withdrew the guy's application, even though he did not consent.

The guy was kept in detention for 158 days, following a successful court battle, he received his residence card 2 weekend ago and the unlawful detention matter is pending at the court.

UKBA will punish a detainee or an applicant with poor representative.

You are better of representing yourself than using an incompetent rep.

The punishment from my experience, is more severe in the later than the former.

[Ella11]

Thank u all for your concern and advice he is using legal aid lawyer.

And his wife has been to visit him at the detention centre. We don't know what to do again.

@ Mph80 please I don't understand IANAL. Please can you explain what it is to me,cos am new in this forum. Apologies.

[Ella11]

Hi everyone,
I just spoke to my brother in law now and he said that the lower tribunal didn't not reconsider his decision ,they said they are happy with the previous judge decision.

Now his solicitor said that she has lodge the appeal to upper tribunal direct. Please what can we do for him at this stage. His solicitor doesn't communicate with him most times,she is always busy. Please is there anything we can do him.

Any little advice will be appreciated. Many thanks

[Ella11]

I dont think it is unusual at all.

I was involved with a case along this line but slightly different in that the EU national left the non Eu whiles his application was with the Home Office, she then withdrew her application for registration certificate, and UKBA wrongly withdrew the guy's application, even though he did not consent.

The guy was kept in detention for 158 days, following a successful court battle, he received his residence card 2 weekend ago and the unlawful detention matter is pending at the court.

UKBA will punish a detainee or an applicant with poor representative.

You are better of representing yourself than using an incompetent rep.

The punishment from my experience, is more severe in the later than the former.

[Ella11]

So his options are:

1) Await the upper tribunal

2) Agree to leave and head back to South Africa.

3) Possibly start divorce proceedings. However, I believe the only way that can be done - and IANAL - is by the wife (as she can cite the adultery) within the year - otherwise they have to have been separated for longer.

Without divorce - he can't retain the right of residence. If the marriage has broken down - then he has no right of residence here right now.

Others might have be more help - but the upper tribunal is his route for both the bail and the leave to remain.

I assume he has a good lawyer?

M.

[Obie]

One cannot assist much if he is with other solicitors.

I am confident their decision is wrong, but I feel powerless to assist in any way.

[Ella11]

Thanks Obie his friends solicitor advice him to file in divorce since his wife is not cooperating. Please Is it the right thing to do?

[Obie]

It may well be a long time step to take, but not a short term one.

The short term one is getting him out.

Divorce takes , at the very least 3 months to be resolved. Not sure UKBA will want to keep him there until then.

At this point he needs evidence demonstrating that the estranged spouse is in the UK, and exercising treaty rights, once that is resolved, he is in good position.

[Amber]

He could have issues evidencing the retention of the right to reside. However, he has a child, who I assume is British? Then exception 1 could be in play, albeit under the immigration rules.

[Ella11]

He could have issues evidencing the retention of the right to reside. However, he has a child, who I assume is British? Then exception 1 could be in play, albeit under the immigration rules.

No his child is not a British bacause he had the child with another woman from non eu country.

[Ella11]

It may well be a long time step to take, but not a short term one.

The short term one is getting him out.

Divorce takes , at the very least 3 months to be resolved. Not sure UKBA will want to keep him there until then.

At this point he needs evidence demonstrating that the estranged spouse is in the UK, and exercising treaty rights, once that is resolved, he is in good position.

Yes she is self employed

[Obie]

If she is self -employed and the marriage is yet to be dissolved, then there is no reason to be detained.