Sham Marriage and ILR

[hattorihanzo]

I am a victim of a sham marriage.

I married my ex in 2016, head over heels in love; lived together for 3 months until he broke up with me in Jan 2017.

I have filed for divorce this year Feb 2019 on grounds of 2 year separation. He want's to delay the divorce so we're married 3 years technically, and so he can get his ILR.

I do not want him to stay here as I feel totally betrayed and used.

On what grounds would he be able to stay/not stay here??

Any info. really appreciated.

[CR001]

What is your UK immigration status??

Any children from the marriage?

[hattorihanzo]

What is your UK immigration status??

Any children from the marriage?

I'm an EEU citizen and i have been living in Northern Ireland for 12 years.

No children.

[seagul]

He may qualify for retention of rights because marriage lasted at least 3 years. But he may need your assistance regarding treaty rights documents

[hattorihanzo]

He may qualify for retention of rights because marriage lasted at least 3 years. But he may need your assistance regarding treaty rights documents

It’ll be 3 years of marriage this September so I’m hoping to finalize the divorce beforehand.

[Frontier Mole]

You don’t need to wait for the divorce to be finalised. Inform the Home Office you are no longer a couple and he is no longer being supported to remain in the UK under your treaty rights. If you put the date you split that would be helpful too
That will stop the clock for his non EU partner/ spouse route and he will have to find another visa to remain.
There is no compulsion or requirements for you to supply any documents or information that will facilitate his continuing stay.

Do not wait for the divorce to be completed, you would have been in a better position if you had informed the the Home Office at the time of the split. No action will be taken because you didn’t so don’t worry on that front.

[seagul]

You don’t need to wait for the divorce to be finalised. Inform the Home Office you are no longer a couple and he is no longer being supported to remain in the UK under your treaty rights. If you put the date you split that would be helpful too
That will stop the clock for his non EU partner/ spouse route and he will have to find another visa to remain.
There is no compulsion or requirements for you to supply any documents or information that will facilitate his continuing stay.

Do not wait for the divorce to be completed, you would have been in a better position if you had informed the the Home Office at the time of the split. No action will be taken because you didn’t so don’t worry on that front.

You are mixing up UK law with EU law. Under UK law if the relationship breaks down then on informing to UKVI the visa will be curtailed. But EU law is different because none-EU family member remains the family member of EU national until the divorces officially over. And in case of at least 3 years of marriage the none-eu national family member can claim retention of rights. And if EU national refuse to give his/her treaty rights evidences such as employment documents then none-eu national can explain that to HO as he is facing obstacles in obtaining these and HO under their private gate away arrangement with HMRC can extract that detail. Read more about retention of rights as below:
https://www.gov.uk/family-permit/retain ... -residence

[Frontier Mole]

Thanks for the clarification on that point - she can still inform the HO she is not supporting his claim and make it clear she is not going to supply or authorise the release of her documents or information and that applies to her HMRC data too.

HMRC can not release third party documents in the manner you describe as the information belongs to the OP and not the applicant. The HO has no right to access her information and HMRC know this and will not entertain its release. If authority is given by the OP then and only then will information be released to support the actual applicant.

[seagul]

Even OP inform to HO but none-eu family member will remain the EU national family member until the divorce is over. And in case of op's case she has already been living from 12 years who definitely have achieved permanent residence status (free from exercising any treaty rights), therefore, the none-eu national even don't need her treaty rights evidences anymore.

[Frontier Mole]

That assumes the OP has availed herself of a route for UK citizenship, which seems unlikely as her Spouse is on non EU route. Therefore the treaty rights for the purposes of his visa have to be in play. Thus the evidence will still be required for him to progress his visa.

[seagul]

But once an EU national acquire PR usually after 5 years then he is no longer required to excercise any treaty rights. And the rights which none-eu national gets are actually derived from the activities of EU national not from their own. Therefore, no treaty rights evidences will be needed after 5 years and EU national even can skip to apply PR which is a mere confirmation of its settlemenent status, however it facilitate towards naturalization without having the fear of losing its fee.

[Frontier Mole]

Lots of assumptions here - has the OP applied for permanent residence?

[seagul]

Lots of assumptions here - has the OP applied for permanent residence?

Its not mandatory for EU national to apply PR after 5 years which is simply a mere confirmation of his/her settlement status. And mostly sham marriages are stopped/intervened at the time of giving notice/ceremony but if someone after 2-3 years of marriage stand up and start saying that it's a sham marriage then it may not easily be believed.

[hattorihanzo]

Lots of assumptions here - has the OP applied for permanent residence?

I don’t need PR as I’ve been living here for the last 12 years and I’m an EEA national.

Separation started 3 months after the marriage, we started living apart. When it come to me, it wasn’t a sham marriage, but for him, it definitely was hence why I don’t want him to stay here on the grounds of this marriage.

[seagul]

Lots of assumptions here - has the OP applied for permanent residence?

I don’t need PR as I’ve been living here for the last 12 years and I’m an EEA national.

Separation started 3 months after the marriage, we started living apart. When it come to me, it wasn’t a sham marriage, but for him, it definitely was hence why I don’t want him to stay here on the grounds on this marriage.

You don't need to apply PR after 5 years and is freed to excercise any treaty rights afterwards and the same applies towards none-EU family members whose rights derived from it. I am afraid as its only the HO and EU rules who will decided as whether he can stay on that marriage basis but if the marriage will last three years then there will be very little you can do now. You must have reported after 3 months of separation at very beginning.

[Frontier Mole]

You can still report the fact it was a sham marriage- that will knock it into a different ball game for the HO. They can take action against him under that basis.

[seagul]

Also in case of saying to marriage as shame marriage now after 2-3 years then even op (EU national) can be charged for facilitating an illegal immigrant to achieve visa who must have been reported long while ago.

[Frontier Mole]

Crime team not bothered with the OP, would only be bothered with the non EU migrant as it is patently him that had no intention of maintaining the marriage.

[seagul]

Who is crime team? But HO yes will.

[askmeplz82]

`You should report it to Home Office asap. Here is the link

https://www.gov.uk/visas-when-you-separate-or-divorce

‘sham marriage’ can only be established if there is no genuine relationship between the parties; whereas the ‘hallmark of a marriage of convenience is one that has been entered into… for the purpose of gaining an immigration advantage’ This means that a ‘marriage of convenience’ may exist where there is a genuine relationship, if the sole aim of at least one of the parties is to gain an immigration advantage

Burden is on the Home Office to prove that there is a marriage of convenience so if the OP report it to the home office and co coperate they can easily revoke his EEA RC . They did to someone i know . his RC was revoked when he was coming back from pakistan. it's 3 years and he is still fighting with the HOME OFFICE

[askmeplz82]

" Separation started 3 months after the marriage, we started living apart "

When did he applied for EEA RC ? This doesn't look like genuine marriage at all to me leaving after 3 months. make sure you mentioned that in the cover letter to the home office

[hattorihanzo]

`You should report it to Home Office asap. Here is the link

https://www.gov.uk/visas-when-you-separate-or-divorce

‘sham marriage’ can only be established if there is no genuine relationship between the parties; whereas the ‘hallmark of a marriage of convenience is one that has been entered into… for the purpose of gaining an immigration advantage’ This means that a ‘marriage of convenience’ may exist where there is a genuine relationship, if the sole aim of at least one of the parties is to gain an immigration advantage

Burden is on the Home Office to prove that there is a marriage of convenience so if the OP report it to the home office and co coperate they can easily revoke his EEA RC . They did to someone i know . his RC was revoked when he was coming back from pakistan. it's 3 years and he is still fighting with the HOME OFFICE

Thank you, that’s actually really helpful!

[seagul]

someone i know . his RC was revoked when he was coming back from pakistan. it's 3 years and he is still fighting with the HOME OFFICE

Maybe the said person's divorce is already over before 3 years who certainly ceases to be the eu national family member. I know one person personally who in almost same situation got ROR and then PR although his EU national partner reported to HO but again when it has been 3 years of marriage passed. Eventually by virtue of EU directive 2004 he got ROR even without EU national assistance because he was covered due to being remained married for 3 years. I know its a loophole which isn't available in UK law.

[askmeplz82]

someone i know . his RC was revoked when he was coming back from pakistan. it's 3 years and he is still fighting with the HOME OFFICE

Maybe the said person's divorce is already over before 3 years who certainly ceases to be the eu national family member. I know one person personally who in almost same situation got ROR and then PR although his EU national partner reported to HO but again when it has been 3 years of marriage passed. Eventually by virtue of EU directive 2004 he got ROR even without EU national assistance because he was covered due to being remained married for 3 years. I know its a loophole which isn't available in UK law.

No by that time he was married for more then 5 years but because his RC was issued later he was travelling with RC . He didn’t apply for PR because his EEA wife did not work continuously for 5 years

One lawyer told me he recently had a client whose PR revoked by Home Office after his client applied for his child British passport who is from India

Father was married to an Eu national in 2013 / in 2017 he applied for ROR . In 2018 he applied for PR and it was granted

In January 2019 when he applied for his 3 years old child British passport home office revoked his PR. They wrote his PR and ROR was invalid because he was in relationship with another woman at the same time . Child was born same year when his ROR was issued but mother is Indian student

He will have court hearing end of this year .

[seagul]

In January 2019 when he applied for his 3 years old child British passport home office revoked his PR. They wrote his PR and ROR was invalid because he was in relationship with another woman at the same time . Child was born same year when his ROR was issued but mother is Indian student

He will have court hearing end of this year .

First of all without officially being divorced no other relationship will be valid/counted in home office eyes. And secondly at ROR stage when the person is officially divorced then is free to marry anyone although can't sponsor on spouse visa either under EU law or UK law until gets PR. Remember not everyone's circumstances are similar or known exactly to others. And as stated earlier a person can't just stand up after 2-3 years and start saying that it was a sham marriage and if he/she do so then the authorities will even ask him/her that why you didn't report intimely rather facilitate the person to achieve & remain on that visa.