Non EEA Family Member got stuck!! Please HELP!!

[Basnet]

I am a family member of EEA national. we got married in 2012 Jan 21 and lived together till 2014 March 11. Things didn't workout between us thats why had to be separated means we are living different places now and we are not divorced yet.
The place where I am living now been visited by immigration officer in 2016 July 30 to arrest different people while I was also questioned by immigration officer about how long i was with my ex wife,how long we are being separated , why i am not divorced yet, how long have i been living in current address and so on. I couldn't give them correct answer as i couldn't remember the date, instead they rang my ex and got answer from her which was different than what i have answered them. After they were saying me that i was lied to them, probably we got married for paper and all that rubbish stuffs which is absolutely not!! Although i was trying be honest with them but they took my passport away and told me that HO might revoke my Residence Card therefore i should look for immigration advisor . Now my brief details and questions are as follows:-
-Lived together after married for 2years and 1 month 11days
-Residence card valid until 26 june 2017
- Sill not divorced
-living separately
-Passport Taken Away 30 July 2016 from current address
Questions are
1)what should I do now shall I just call HO and ask my passport back or wait for another couples of months ? Its been 3 months haven't heard nothing from them. I don't think they will just return my passport if they won't what shall i do?
2) I am thinking to wait till 21 jan 2017 and will do divorce process means i will be still married with her for 5 years.Does it make any difference even if i process now ??
3) After if am divorced what application should i apply for Permanent Residence (PR) or Retained Rights of Residence (ROR)?
Please give me some advice that would be really appreciated !! many Thanks

[noajthan]

I am a family member of EEA national. we got married in 2012 Jan 21 and lived together till 2014 March 11. Things didn't workout between us thats why had to be separated means we are living different places now and we are not divorced yet.
...
Questions are
1)what should I do now shall I just call HO and ask my passport back or wait for another couples of months ? Its been 3 months haven't heard nothing from them. I don't think they will just return my passport if they won't what shall i do?
2) I am thinking to wait till 21 jan 2017 and will do divorce process means i will be still married with her for 5 years.Does it make any difference even if i process now ??
3) After if am divorced what application should i apply for Permanent Residence (PR) or Retained Rights of Residence (ROR)?
Please give me some advice that would be really appreciated !! many Thanks

1) If not divorced then, under EU law, you are still married.

If spouse is exercising treaty rights (or settled) then you may remain and reside in UK.
There is no requirement or obligation to cohabit.

Suggest you write and ask for return of passport or else an explanation of what grounds it was seized.
Were you given any official paperwork? what does it say?

2) Wait until Jan 2017 and then apply for confirmation of PR.
Suggest get that in the bag before getting divorced.

Check the form and guidance, start collating your evidence asap.

3) See #2
Recommend PR first.

Then you can divorce and do whatever you choose.

[Basnet]

Dear noajthan
Thank you for your advice really appreciated it!!
while you were giving me advice i would like to ask some more question hope you don't mind.
1) The first thing is she is still working means exercising treaty rights and she is living in UK for more than 10 years.
2) They haven't sent me any official paperwork yet. In fact i had asked them photocopy of my passports on the same day of seized and i have received them after couples of weeks with mentioning their address where my passport are kept somewhere in south London i suppose.
3) I am just wondering about the PR
To eligible for PR we should live continuous period of 5 years together or not? and we have lived justnfor 2 yrs and couples of months where PR Guidance Notes says:
Evidence of residence in the UK
You must show that you, your family members, and your sponsor (if applicable) have been living in the UK for the relevant period.
If you’re applying on the basis of 5 years’ continuous residence, the evidence must cover the 5- year period. The documents should be spread evenly throughout the 5 years and come from a variety of sources. We recommend you submit at least 2 documents for each year of residence.
4) HO now know that we are separated, therefore just wondering is there any way that i can still apply for PR without living together for continuous 5 years??
Many Thanks

[Wise]

Follow the advice Noajthan gave but what I as a person will do is to get solicitor to show your legal backup to fight the battle for you as they will do everything to scare or delay your PR as they have already started and also there was no evidence against you that your marriage wasn't genuine.Again there was no EU LAW that says you cannot live separately even if things is not going as expected in marriage as long as your spouse is exercising his/her treaty right in UK.

Good luck.

[noajthan]

Dear noajthan
Thank you for your advice really appreciated it!!
while you were giving me advice i would like to ask some more question hope you don't mind.
1) The first thing is she is still working means exercising treaty rights and she is living in UK for more than 10 years.
2) They haven't sent me any official paperwork yet. In fact i had asked them photocopy of my passports on the same day of seized and i have received them after couples of weeks with mentioning their address where my passport are kept somewhere in south London i suppose.
3) I am just wondering about the PR
To eligible for PR we should live continuous period of 5 years together or not? and we have lived justnfor 2 yrs and couples of months where PR Guidance Notes says:
Evidence of residence in the UK
You must show that you, your family members, and your sponsor (if applicable) have been living in the UK for the relevant period.
If you’re applying on the basis of 5 years’ continuous residence, the evidence must cover the 5- year period. The documents should be spread evenly throughout the 5 years and come from a variety of sources. We recommend you submit at least 2 documents for each year of residence.
4) HO now know that we are separated, therefore just wondering is there any way that i can still apply for PR without living together for continuous 5 years??
Many Thanks

3) That UK requirement is not compliant with EU law.
Guidance notes are not necessarily an accurate statement of the relevant law.

4) Yes, because cohabitation is not mandatory.

[Basnet]

Thanks a lot Noajthan and Wise.Your help will always be appreciated!! I will definitely apply PR in 2017 February. Could you guys recommend me any EU Law specialist/ solicitor so i will apply through them please? as there are so many solicitors in the market who just get the information from HO website and tell me the same crap law which i have known and read them through already.
Many Thanks

[noajthan]

Thanks a lot Noajthan and Wise.Your help will always be appreciated!! I will definitely apply PR in 2017 February. Could you guys recommend me any EU Law specialist/ solicitor so i will apply through them please? as there are so many solicitors in the market who just get the information from HO website and tell me the same crap law which i have known and read them through already.
Many Thanks

For a number of reasons there are no recommendations here.
Its just a case of going via Law Society and OISC websites.
However an advisor/representative is not necessary; many people do apply and succeed by themselves.

[Basnet]

Thank you Noajthan
I would like to apply myself but what happens if i don't get my passport back from HO and what am i gonna fill up in the PR form as there are so many dates ,for instance living together duration and other things should be filled up in the form? if i send the PR form without filling up required sections what might be the consequences ?
Just wondering if i can just write notes on the separate sheets about missing documents and our current situation ( living separately), missing passports and any other matters, do you think they will still consider about it? or they will just refuse it??
My point is:-
What i am i supposed to be writing in the PR form if i don't have enough or required documents??
Many Thanks

[noajthan]

Thank you Noajthan
I would like to apply myself but what happens if i don't get my passport back from HO and what am i gonna fill up in the PR form as there are so many dates ,for instance living together duration and other things should be filled up in the form? if i send the PR form without filling up required sections what might be the consequences ?
Just wondering if i can just write notes on the separate sheets about missing documents and our current situation ( living separately), missing passports and any other matters, do you think they will still consider about it? or they will just refuse it??
My point is:-
What i am i supposed to be writing in the PR form if i don't have enough or required documents??
Many Thanks

You need to submit adequate evidence.
If you cannot get all evidence (due to an estranged spouse) then HO can be encouraged to make relevant enquiries, as per Section 40 of UK Borders Act 2007.
But you will need to provide basic information that only you would know, such as various dates in your timeline.

[Basnet]

Thanks Noajthan
I would like to ask you one more question please
1)What happens if I don't get my passport back from HO in the time when I apply for PR ? Does that affect my application process ? Do they refuse my application just because I haven't submit my original passport?
2) can I apply the PR while my passport is still being seized by HO? Thanks

[noajthan]

Thanks Noajthan
I would like to ask you one more question please
1)What happens if I don't get my passport back from HO in the time when I apply for PR ? Does that affect my application process ? Do they refuse my application just because I haven't submit my original passport?
2) can I apply the PR while my passport is still being seized by HO? Thanks

if passport is in HO possession you can remind them of that and, presumably. a caseworker will be able to access it and check it.

[Wise]

Straightforward applicant with a straightforward application have nothing to worry about if all your documents are complete but am afraid not this one and don't forget it cost HO nothing to keep that passport for years just because of so call phone interview between your wife,immigration and you when they visited where you live. As you are good in research, that all it takes to find a good solicitor who understand EU law properly and if they are talking nonsense just leave until you get one then I strongly believed your chance is very high to get a feed back quickly than on your own.

Food for thought!

[Basnet]

Thanks Noathan and Wise!!!

[Basnet]

Hello Noathan/ wise
Could you please tell me if I can submit the application for PR 1 month before than its actual date as its gonna be 5yrs in 21 Jan 2017 since I have been married.but I am thinking to apply like last week of November 2016? Thanks

[Wise]

All you need is her treaty right from January 2012 if you married in UK till January 2017 and also you can either apply in November 2016 as you said or 28 days to the 5th year of your marriage. But can she give all her employment paper work and some proof that you have both lived together in the past, if the answer is yes you win. Otherwise you have to list where she has work in a letter asking the HO to verify from HMRC on your behalf.

Hey! you can arrange all the documents in a folder yourself with labeling and ask the solicitor to help you write letter of application and submit it through them at least you are well equipped to so extent.

[Basnet]

Thanks a lot Wise
I would like to ask one more question that my ex will not give me her passport but I am sure she will give me her employment letters. Do you think HO will still consider my application without her original passport ? Thanks

[noajthan]

There is no 28 day rule to apply early on EU route.

[Wise]

Noajthan thanks for clarification but i will not risk it as HO interpretation in law every is not funny at all especially when it come to non eu applying for anything.


To your question.

If you have divorce you do not need your spouse ID at all just the treaty right and some proofs that you have both lived together in past that is all you need. Again if you choose divorce the ball is on your side alone to me is great,but if not the HO can still invite two of you for another rigorous interview which i think can slow things down so prepare your Sunday dinner right.

Good luck.