NonEEA divorces EEA, has another EEA partner. EEA4? EEA2?

[djamania]

Hello all!
Please help! My partner's case:

Non-EEA national marries in April 2003 an EEA national, obtains the spousal visa July 2003 until July 2008. The marriage doesn't go well and they start the divorce process. Decree nisi is obtained in March 2008. Decree absolute not issued yet. In the meantime he met me and we have been together for 2 years now and have a baby. I am EEA A8 national, started employment in UK in April 2008 (on maternity leave from Nov 2008) but claimed tax credits in Feb 2008.

My question is:

1) Shall my partner apply on EEA4 as according to the EU law he retained the right of residence after being married with her for three years? She was always on benefit therefore did not really exercise treaty rights? Would he still need her ID for the application? Or just his p60s would do witha covering letter? Will they need any proof of them being together for these 3 years? Will this give him indefinite leave to remain?

2) Shall he apply for a residence card on EEA2 as my partner? Shall I stop claiming tax credits? Shall we attach proof of our relationship of the last 2 years? Is this residence card valid for 5 years and then he can apply for indefinite leave to remain?

3) When should we apply for decree absolute? We haven't done it yet as HO and one lawyer said that this would make his stay here unlawful? However another adviser said he can apply after his visa expires?

4) We first planned to apply for a COA but now I can see it may be soon removed... What to do?

Please, any advice very welcome.

All the best to you all!!

[thsths]

1) Shall my partner apply on EEA4 as according to the EU law he retained the right of residence after being married with her for three years? She was always on benefit therefore did not really exercise treaty rights?

I would recommend to pursue this, because he would get PR and the option to naturalise soon. The difficulty is that he needs her passport, and he needs to demonstrate that she was exercising treaty rights. Being on benefits is not necessarily an obstacle, but it does make it harder.

Would he still need her ID for the application? Will they need any proof of them being together for these 3 years? Will this give him indefinite leave to remain?

I think the answer is always yes.

2) Shall he apply for a residence card on EEA2 as my partner? Shall I stop claiming tax credits?

Working tax credit is ok, because you work. But applications as unmarried partners can be difficult and take very long.

3) When should we apply for decree absolute? We haven't done it yet as HO and one lawyer said that this would make his stay here unlawful?

Well, as long as they have been living together for 3 years, his rights would not be affected. However, if she was not exercising treaty rights, he may be in a difficult position.

Tom

[djamania]

Thank you Tom

[jude]

djamania what is going on with ur husband application? has he got the stay yet? did you gys got marraige? what happen?

[djamania]

hiya. he applied for permanent residence on eea4 himself. it usually takes 6 months so we are waiting. hopefully he will get this. it would make life so much easier. anyway he fullfills all the conditions to have the permanent residence. and if we applied with me it would be another conditional 5 years. we did not apply for certificate of approval as it was rejected (or something like that) by the house of lords, it breaches human rights. anyway, they still use it. so we are waiting for his papers and then we can hopefully get married and live in peace.

all the best to you all and thanks for all the advice this forum is giving. we also got some advice from immigration adviser at civil advice bureau.

God bless,
djamania

[jude]

Thanks for your reply . Most people's and lawyer do not really understand the law very well . I spoke to someone working in the EEA department in HO and I was told that if you get devorce from you EEA only you need to show is as following : Three year that , the marraige last, One year living togther in uk , prove that you the non EEA was working for one year , your payslip, your bank statement and 2 side poto of your self . The did not ask any information that your wife was working here that's is the law but sometime you have to show prove that the EEA was either working, studying, self employer , e.t.c. during the time of devorce . Did your husband provide his X EEA document ? how document does she show? also after the devorce did he inform the HO about that?

[djamania]

hello jude.
he just got divorce two weeks before his 5 years visa was to be expired so he didnt inform HO before that. he did not supply any documents of the former wife, not any id card or passport and he explained in a covering letter why. yes, you are right different people dont know the european law. you were lucky to find such a well informed perosn because we were told that if marriage finished he should go back to his country, even one lawyer said that but i can see you know the european regulation. good luck.

[jude]

Thanks for ur reply , good lucky to you and ur husband and can you please let us know what is going on in future.

[djamania]

Hello again.
Well, after 7 months passed we wrote ba letter to Home Office asking for the outcome of the application as the employer keeps asking about it and also for a passport as it would expire and we wanted to extend it and provide them with a valid one. we send the letter 4 weeks ago. today we got the passport back saying 'to enable you to travel' and not to provide them with a passport unless a caseworker asks for it.
we are confused a bit. can we travel now? will my partner be let back into the uk?shall we have the letters from home office with us when we return to uk?
we sent the eea4 application to croydon in july 2008, we got a reply today from liverpool.
thank you everyone for good advice! all the best!
djamania

[billi]

I’m in the same situation, the only difference is that i have applied nearly a year ago now. Pressure from employer is mounting now as they want a reason of what’s happening. It is getting ridiculous now to be honest. I have tried all means MP SOLVIT LAWYER COMPLAINTS ..... and still nothing at all. All documents i have submitted expired (both passports)

I really don't know what to do to be honest especially that now my job is at risk and this whole situation is putting a lots of stress on my couple as it is putting my life on idle, no travelling, can change jobs, can not have a mortgage, can’t even change my doctor or apply for a driving licence ... to be honest I am on the edge of depression.

[djamania]

Hi billi.
all the best to you. hopefully you will get your PR soon. I can imagine how it can be extremely stressful and depressing. don't stop trying contacting them. once again, all the best!