Non EU Family member advice sought

[shandave2001]

Hi isceon

In regard to your second last post, I stand to be corrected, but I don't think it is necessary that a qualified EEA national must be present in UK when divorce is initiated.

In OP's case, the required 3 years within marriage (one in UK) had already been passed when EEA national left the UK. In this case, it is irrelevant whether EEA national left permanently or temporarily. Once OP had acquired Right of Retention under EU law by fufilling the relevant conditions of the Directive, EEA national's departure from UK cannot take away OP's Right of Retention. Regulation 10 (5) of the 2006 Regulations says: "If the marriage or civil partnership has lasted for at least three years immediately before the initiation of proceedings for divorce...". To apply for Right of Retention is mere a formality.

There is debatable issue what happen, if in such a case, EEA national leaves UK permanently before 3 years have passed after marriage, and there is no divorce before completion of 3 years. Whether non-EEA family member will be able to apply for Retention Right by arguing marriage subsisted 3 years with couple being in UK for one year, therefore it is irrelevant that EEA national left UK before 3 years were passed after marriage. However, there is no such a situation in present case.

Home Office has no legal basis to ask OP to provide proof that EEA national was exercising her treaty rights up to to the point when divorce initiated. Because divorce is going to to be initiated long after the post marriage 3 years. I have quoted the relevant part of the Directive, please see its wording again.

5.2 Retention of a right of residence following divorce or annulment of marriage / dissolution of civil partnership
Regulation 10(5) of the 2006 Regulations makes provision for the following:
If the marriage or civil partnership has lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership, then the third country national retains a right of residence if:
(a) they are pursuing activity which would make them a worker or a self-employed
person if they were an EEA national;
(b) they are a self-sufficient person – including a retired person;
(c) they are the family member of a person in the UK who is either a worker, selfemployed, or is a self-sufficient person.
If the non-EEA national is a student then they will not qualify, unless they are a student with sufficient resources to be self-sufficient.

[isceon]

the EEA 2006 regulations states:
“Family member who has retained the right of residenceâ€

[Cam]

Interesting points.

Any idea, when these cases in the court are expected to be decided?

[isceon]

Interesting points.

Any idea, when these cases in the court are expected to be decided?

just keep track of this
http://www.immigrationboards.com/viewto ... highlight=
and this one:
http://www.immigrationboards.com/viewto ... highlight=

or the AIT:
http://www.ait.gov.uk/CaseLaw/caseLaw.htm

[Cam]

I have recently heard from a lawyer that if the EEA national residing in the UK has gaps in their employment, their non-EEA family member does not qualify for the PR after 5 years.

My wife had 2 gaps in her employment, approximately 1 year each. During those gaps she did not seek unemployment benefit as my salary was sufficient for us. We did not have a private medical insurance.

If my wife agrees to cooperate and I file my PR aaplication in a few months, when it would be 5 years since I am on the family member status, would I qualify for the PR?

I would look forward to your replies.

[shandave2001]

Hi Cam

Apart from your rights under EU law, why don't you come under "Legacy Cases" scheme as you applied asylum in 1999? People have got indefinite leave to remain under this.

Anyone who had applied asylum before March 2007 may be dealt under Legacy Cases. I suggest you speak to Case Resolution Directorate in Home Office and ask them if your case fall under Legacy Cases. Their No is: 08706067766

You may read about Legacy Cases in Home Office website before calling them. Legacy is not an amnesty but you seem to be strong candidate taking into account your personal circumstances.

[Cam]

Hi Shandave,

Thanks for your reply and a very nice suggestion.

But as far as I understood, Legacy Cases category applies to those whose cases were not decided. Is not this the case? My case and the subsequent appeal was rejected before I changed my status to a non-EEA family member.

[shandave2001]

Cam

That is what I believed, but practically I came across people whose asylum cases were failed and appeal rights exuasted before Mar 2007, but they obtained indefinite leave under Legacy.

I will pm you one source of information, so you can further explore.

[AncientAlien]

Cam

That is what I believed, but practically I came across people whose asylum cases were failed and appeal rights exuasted before Mar 2007, but they obtained indefinite leave under Legacy.

I will pm you one source of information, so you can further explore.

Hi Good people

I know some us us are struggling with finances and some can't even get a job until they get a decision with their passports from the HO. Therefore, it is EXPENSIVE calling those 0870/0845xxxxxxxxx numbers that the Home office generally provides.
Don't give up, now you can call Home Office for free, just check out www.saynoto0870.com and you will be provided with a local 0208/0151/0161xxxxxx number where you can contact HO for FREE! The actual number is 01516725626. (But log on to www.saynoto0870.com and confirm for yourself)
Especially if you have a pay monthly home or mobile telephone contract. You can still call from a pay as you go mobile but the charge rate will be like you are calling your neighbour next door on any 0208xxxxxxxx number.
Good luck Razz

[shandave2001]

Spam or just business advertisement?