Non EU Family member advice sought

[Cam]

Hello,

Here is a brief timeline

1999 arrived UK and applied for asylum

2001 HO refused but did not informed me of the decision.

2004 HO informed me of refusal. I appealed got refused again

Late-2004 Married my EU national fiancée who was living in the UK. I was gives 1 year visa as EU member national's family member.

Late-2005 my visa was extended for another 5 years (till late 2010).

June-2008 Relations between me and my wife are getting worse. I am being threatened that she will make sure I go back to my home country. Even marriage counselling from relate has failed to reap any results.

Questions
What is my status is case things get further bad?
During this 3.5 year marriage my wife worked on and off and I was the main earner. Would this affect?
She is considering going back, what options do I have then?

I shall really appreciate any advice.

Many thanks

Cam

[republique]

how can you not be informed for 3 years??

[Cam]

how can you not be informed for 3 years??

I beleive that was because of the nature of the case probably or may be their internal error. I kept corresponding with HO letting them know about change of my address etc and I even spoke to them but they never let me know. Later on I made a complaint and they accepted their resposibility and apologized.

Amyway, I am more concerned about my present situation. I shall be looking forward to hear from you guys

[John]

Late-2004 Married my EU national fiancée who was living in the UK. I was gives 1 year visa as EU member national's family member.

Late-2005 my visa was extended for another 5 years (till late 2010).

Thanks to the EU regulations that came into force on 30.04.06, given that the marriage has lasted over three years, and clearly more than one year has been spent together in the UK, you will have the right to get PR status ... Permanent Residence .... 5 years after you started to live in the UK using EU Treaty Rights. So as from late 2009.

However the way the regulations are wording you should be divorced by that time, and not merely separated. Is that a possible outcome of your current marital situation?

In the meantime, you are still entitled to live in the UK, even if your wife leaves the UK. Had you not passed the 3 year and 1 year tests mentioned above, then you might be in difficulty, but thankfully that does not apply to you.

I am being threatened that she will make sure I go back to my home country.

She can't ... you have protected rights, as mentioned above.

[Cam]

Hello John,

Thanks a lot for your reply. I was looking other threads from you and I found your posts very knowledgeful.

I am now clear about the situation in case of divorce but not about if she leaves the UK. How would I proceed with my application in such case? Would I need to initiate divorce proceedings?

Cheers
Cam

[John]

As I see it, your choices in order of preference should be :-

1. Repair the current problems with your marriage and live together happy ever after!
2. Get divorced, in order that you can definitely take advantage of your extended EU Treaty Rights, as previously mentioned.
3. Separate from your spouse, but don't get divorced. This is the worst of the three options, given that the way the EU regulations, that came into force on 30.04.06, are worded, you do not have a right to get PR.

Would I need to initiate divorce proceedings?

Well someone would, and if you do that, that is you are the Petitioner, you are in better control of the speed of things. But it does beg the question, what grounds of divorce would you use? Is there any evidence your spouse has committed adultery? Or would you use unreasonable behaviour?

[Cam]

Once again thanks for your reply. Now things are getting clearer to me.

I have already tried the first option. We received counselling from the Relate but unfortunately no positive results.

As far as divorce is concerned, I shall never make any false allegation of adultery or something similar.

My wife has told me that soon she will be going back to her home country for may be up to a year and after that she will decide weather to continue with the marriage or not.. In this case I do not see any happy ending either to my marriage or to my immigration matter.

Any suggestions, advice or points I should be aware of?

[Morpheo]

I have been in the same situation and here is my input.

Please note that you do not cease to be a EU family member until the decree absolute has been issued.

As it stands now, you are a dependent of the EU spouse and I am afraid to say that if she leaves the country and cease to exercise the Rome treaty you will have to leave as well.

Saying that, you have the right to retain your right of residency if divorced, after that you are not longer dependent to her and her whereabouts.

it seems that you either get the divorce or find other ways to stay in the UK, however, if you decide to return to the UK law your chances will be very little from your case history and if granted the clock will be reset again and you will either qualify for ILR after 5 years or the 10 years way. However, I don't think that 10 years will longer exist if the new immigration bill is approved by the end of this year.

M

[Cam]

Thank you guys for your replies and guidance. I am sorry I could not even thank you.

Unfortunately things have gone further bad. My wife, who is 4 month pregnant, has decided to leave the UK and inform the HO about her leaving.

Now what choice am I left with? She does not want reconciliation. After 3 sessions at relate she refused to continue.

I have decided to start with divorce proceedings based on unreasonable behaviour, facial abuse, verbal abuse.

I shall be grateful if you guys could guide me and share your knowledge/experience. How should I proceed in a family court and then with the HO?

At the moment I want to do this myself without a solicitor as I cannot afford one and I may not qualify for legal aid.

I have seen CAB and HM Couers websites for very basic information. I shall be grateful for any suggestions and things I should be careful while dealing with courts and the Home Office.

Thanks

[Cam]

What would be my position if my wife leaves UK (and notifies the HO) after I start divorce proceedings but before decree absolute is issued?

[thsths]

What would be my position if my wife leaves UK (and notifies the HO) after I start divorce proceedings but before decree absolute is issued?

I am sorry about your situation. Your legal status is exactly the big question. The law is not clear about the answer, and I am not aware of any precedent case either. Given the temporary nature of the situation, there may never be one, unless the Home Office forces the issue.

My guess would be that you are safe for the time being. The law was written with the intention of providing a certain guarantee for spouses in case of a divorce, and for this goal your status would have to be legal. Now whether the Home Office goes along with this interpretation is a completely different matter. So you should be prepared to go to court over this if necessary.

And by all means get a solicitor for the divorce, or at least legal advice. If you do not agree on the terms of the divorce, this may be a complicate case, and any mistake could come back to you later.

Tom

[Cam]

And by all means get a solicitor for the divorce, or at least legal advice. If you do not agree on the terms of the divorce, this may be a complicate case, and any mistake could come back to you later.

Tom

Thanks for your reply Tom. Would you please give me some idea exactly what kind of mistake can harm my case.

The situation raises another question. If she moves back to her home country (EU member state) and gives birth their, what are my rights as a father? Either here or in her home country?

Thanks

[thsths]

Thanks for your reply Tom. Would you please give me some idea exactly what kind of mistake can harm my case.

I am neither a lawyer nor an expert on divorces, so others may have a comprehensive answer. But just assume that your wife moves and files for divorce in her country, in which case the laws there apply. You could be liable for maintenance for the kids, or you may have to divide your assets with her. A divorce, especially in an international setting, is a rather complicated process.

The situation raises another question. If she moves back to her home country (EU member state) and gives birth their, what are my rights as a father? Either here or in her home country?

That is a very good question, and it is usually answered during the divorce process. Obviously you have certain rights as a father, but if she raises your child abroad, it may be difficult to exercise them.

Tom

[Cam]

Late-2004 Married my EU national fiancée who was living in the UK. I was gives 1 year visa as EU member national's family member.

Late-2005 my visa was extended for another 5 years (till late 2010).

Now, after 4.5 years, I am facing a marriage breakdown and divorce proceedings may initiate at any time.

My question is, what kind of visa shall I get if I excercise my rights under 2006 regulation 10? Would it be a 10 year visa, as a solicitor mentioned to me?

I shall be lookign forward to your guidance.

Thanks

[John]

Cam, nothing has changed, my comments remain as I posted: "Mon Jun 16, 2008 8:41 am" in this topic.

[Cam]

John, the useful information you have provided me in the past has greatly helped to me understand my rights in a very difficult situation.

Neither your post nor the 2006 regulation 10 states if the non-EU (Ex) family member, with 3 yr marriage and atleast 1 yr stay in the UK, would get a PR or a long term visa.

I am further confused after speaking to a solicitor who said a 10 year visa is granted in cases like mine and the countdown begins from zero for the PR after divorce.

I wonder what kind of visa I would qualify for since I had been a non-EU family member for 4.5 years?

Cheers

[John]

Neither your post nor the 2006 regulation 10 states if the non-EU (Ex) family member, with 3 yr marriage and atleast 1 yr stay in the UK, would get a PR or a long term visa.

The regulations certainly say that if the marriage has ended then PR can be granted, after 5 years.

I am further confused after speaking to a solicitor who said a 10 year visa is granted in cases like mine and the countdown begins from zero for the PR after divorce.

I have not got a clue what the solicitor is talking about 10 years for. There is no 10-year provision in the EU regulations.

I wonder what kind of visa I would qualify for since I had been a non-EU family member for 4.5 years?

None, you need to wait until 5 years for the PR.

Please reread my earlier post ... the distinction between being "merely" separated, and being divorced.

[Cam]

Thanks John,

So my line of action should be this. Inform the BIA/HO once divorce is finalized/confirmed in a couple of months time from now. And then apply for the PR in October, when it would be 5 years since I got the non-EU family member status (Oct 2004). Correct?

Many thanks

[John]

Hey, wait a minute, earlier you told us :-

I am facing a marriage breakdown and divorce proceedings may initiate at any time

-: but now you are saying :-

once divorce is finalized/confirmed in a couple of months time from now

I query that. If the divorce petition has not yet been issued, I doubt very much that the Decree Absolute will be issued "in a couple of months". For a start there is an inbuilt minimum 6 week delay from the Decree Nisi to the Decree Absolute.

Realistically, when might the marriage end?

If you are talking about a non-British divorce ..... where? And if that your country?

[Cam]

Sorry, that was my bad guess.

I have not filed for a divorce yet but I am facing an increased pressure to do so. Otherwise my wife will file for divorce in her home country, in which case the divorce will be a non-British divorce. So will have to file for a British divorce probably within next couple of weeks.

This means that my divorce will be finalized before Oct 2009, when it would be 5 yrs since I became a non-EU family member of an EU national.

How would I be dealing with the HO/BIA at each stage during this process?

Cheers

[John]

This means that my divorce will be finalized before Oct 2009

Best of luck. It can take a lot longer than 7 months, especially if the Respondent to the divorce petition is not co-operative.

How would I be dealing with the HO/BIA at each stage during this process?

You won't, not until you use form EEA4 to apply for PR status.

The point is that until the divorce is finalised you are still a "family member" of your EEA-citizen spouse, so have every right to be here in the UK, using your Treaty Rights. Then after the divorce you will continue to have protected rights.

[Cam]

Thanks a lot John,

I am not expecting my wife to defend, infect she is the one who wants it ASAP. However, I want access to my 4 month old daughter. Given that my wife has moved back to her country and is reluctant to give me access to our daughter, this issue may complicate things.

[isceon]

Thanks a lot John,

I am not expecting my wife to defend, infect she is the one who wants it ASAP. However, I want access to my 4 month old daughter. Given that my wife has moved back to her country and is reluctant to give me access to our daughter, this issue may complicate things.

I am sorry about ur situation but if ur ex wife has left the country and have not divorced yet then you have lost the right to reside in the uk as a family member of a EEA citizen exercising treaty right in the uk and resulting u cannot rely on article 10 of the EEA 2006 regulations retention of residence following divorce.
The Ho will request u to prove that the EEA citizen was exercising treaty right at the time of divorce (from decree nisi to decree absolute).
So unless the court change the those conditions (there is few cases pending) I don't think u will succeed in gettig PR (10 years) or any kind of stay as it is

[Cam]

What kind of proof the HO may ask?

Technically, currently she is on maternity leave and spending this time at her parents.

What kind of documentation the HO will require from me?

[isceon]

that is then different.
If she has not left the uk permanently and comes back to resume her activity in the uk or receive maternity allowance you have a chance to get sorted on the condition that you divorce and ur wife is willing to help you.
She will have to give letter employment or pay slip if she is employed,letter from dwp if she is on unemployment benefit duly recorded....anything proving her exercising treaty right at the time of divorce.
And good luck with the caseworker .