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Hallo,
I currently have 5 years residence card Issued in Feb 2013 this was issued after the Residence i held earlier was revoked by the HO Stating that my wife whom i derive my rights of living in the UK from was not exercising treaty rights and that we had separated at the time they took the decision to revoke my residence. Well i finally got a new residence card valid until 2018 after the wife and i reconciled.
We have been married for 4 years 3 months but at this point we are separated and looking at divorce though the process is yet to commence though i have been asking my wife when exactly she intends to file but no affirmative date(s). I pay child support to her which we verbally agreed upon, my main worry now is i still derive my rights from her and i don't want a repeat of what happened the last time (my residence getting revoked and i ended up in immigration detention for well over six months). Am in limbo as my understanding is i cannot fight for my own residence without divorce(Decree Absolute). I intend to travel in the coming months but not sure i will be allowed entry on return. How exactly do i approach this? What would be the next step once decree absolute has been Issued? Kindly advice.

What is she doing now in the UK? Until decree absolute you have right to reside as a family member of an EU national. Don't worry about your separation

Yes you will be allowed to entry but they may ask where is your wife and what she doing in the UK. They may even call her phone number just to check .. ( you may be even lucky they won't ask you anything )

After decree absolute you can retain your right of residence as long she is exercising treaty right up until divorce or she is a permanent resident holder

Thanks for your response....Well she is currently working and like you suggested i have nothing to worry about us so long us she's exercising treaty rights. My other worry is that we have lived together Yes but she always wanted everything in her name(Tenancy agreement+bills) but not in both our names, so i might not be able to have evidence that we have lived together for an year in the UK. It is my understanding that is one of the requirements plus of course evidence showing that she was exercising treaty rights up until Decree Absolute?

I believe you will retain your right of residence.

Living together means you are both residing in the UK and not in the same household.

You can initiate the divorce process if your marriage has broken down irretrievably.

I appreciate your advice. The has got the marriage certificate , I believe the family Courts will need this before proceedings can commence?

That is easily obtainable, if you wish to end the marriage.

provided of course your marriage took place in the UK.

I appreciate your advice. The lady has got the marriage certificate , I believe the family Courts will need this before proceedings can commence?

The Marriage did not take place in the UK.

I see. Then ask her for a copy of it.

It may well be the case that the 6 months detention was unlawful.

You should consider a claim for damages.

How do they know she was not exercising treaty right.

I am very troubled by the length of time that you spent in detention, in what seem to me like an unlawful detention.

You are very right and I did just that in December of 2012 whilst in immigration detention, I challenged the decision of the HO to detain me by way of JR but permission was not granted on paper and at an Oral hearing later in 2013. I did not stop there but decided to take it up with Court of Appeal who have just recently(1month ago) refused me permission to Appeal on paper and I did not renew the application for consideration at an Oral hearing. Please note all this time I was unrepresented us I could not afford hiring a solicitor.My only hope now lies with the ECHR/ECJ which am still considering whether or not to take that route us I know the process can be lengthy. Am not sure I can do that by myself or I would have to be represented.

Why did they refuse.

Difficult to see how they could have lawfully refused , if your case was well presented.

In the most recent decision from Court of Appeal the refusal was based on the length of time in detention and whilst that is considered the Judge found the period of time in detention us proportionate hence refusing permission. Please note I was detained in August 2012, though we were not together with the wife I know she was actively looking for work and on 1st October she started work and she has been with the same employer ever since October 2012. I was released in February 2013. The Court of Appeal found that it's only the 4months that I relied upon and that it was not arguably unreasonable, the Court further states in any event I was released from detention "JR is not now the appropriate procedure by which to challenge the lawfulness of the detention particularly if there are disputed issues of fact" . My understanding,its ok to detain for 4-6months us so long us the end result is release! !! Correct me if my understanding is wrong.

The question in your case is not Hardia Singh question.

The detention was wrong from the outset.

If your wife was in the UK, in irrespective of whether you live together or not is not material. .

As you were still married then Diatta is engaged. Shevwas in the UK seeking work. The revocation was never justified. They should have given you a right of appeal against the revocation.

Detention should have been the very last resort.

I will suggest a fresh JR setting out the EU law position.

I was served paper work for my revocation at a police station where i had been taken in for motoring offence, all along i knew my initial RC was valid only to learn at the cop station that my RC had been revoked in May and i got arrested in August. I was served paper work while at the station and from the paper work i could only Appeal outside UK, I stayed at the police station for more than 48 hrs. before being moved to an IRC where i was to spend the next 6 months, while in the IRC I Appealed the decision to revoke and by the time it got to the hearing the solicitor then asked for an amount of money i could not raise and i ended up signing up with one of the Legal Aid firm that provided services at the IRC. I got to the hearing and requested Adjournment and i explained that the new firm needed more time to prepare for my case. The First Tier adjourned the case but to my surprise case was only adjourned to the following week Friday, this meant the new firm had very limited time to prepare and they eventually pulled out citing lack of time to prepare. Second time in Court i requested another Adjournment but this was not granted and was forced to represent myself. Decision came out soon and the appeal was refused. I tried Applying for Permission to Appeal to the Upper Tribunal but all my efforts were thwarted by both 1st Tier and Upper Tribunal and permission was never granted.

I can only say that I find those sequence of event quite troubling indeed.

It is still not late to pursue a civil claim for unlawful detention or make a claim to the high court properly setting out the EU law aspect.

Wish you all the best.

Thank you very much for your time, just a quick query.....Civil claim- to which court specifically ? Am i not out of time already? decision from Court of Appeal is dated 02/06/14.

I believe you can make a claim for false imprisonment a long time after the event.

It all depend on the circumstance of your case.

But it will be sensible to get someone who knows what they are doing, to assist you this time.

Much Appreciated. Thank you so much.