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[Guerro]

I think he will need papers to prove you were exercising treaty rights up to the time of divorce.
As long as the marriage lasted for 3 years or more with one year in britain and he is working or self employed, he can stay in britain. What I'm not sure about is proving that you were exercising treaty rights up to the time of divorce. Can anyone tell us what will happen if he fails to provide such evidence? can he still retain his right of residence? Can an affidavit be acceptable in his case?

[bobobo]

if he cannot prove that the eea national was exercising treaty rights at the time of the divorce then the HO will not grant him the right to retain his residence. He would need the EEA nationals help at any stage if he would want to apply for PR or Retain rights of residence, without which he would be refused and his existing resident permit will be cancelled.

I think he will need papers to prove you were exercising treaty rights up to the time of divorce.
As long as the marriage lasted for 3 years or more with one year in britain and he is working or self employed, he can stay in britain. What I'm not sure about is proving that you were exercising treaty rights up to the time of divorce. Can anyone tell us what will happen if he fails to provide such evidence? can he still retain his right of residence? Can an affidavit be acceptable in his case?

[Guerro]

Booboo, thanks for your efforts and replies. Retention of rights of residence is totally ambiguous in application under the directive by the HO. The HO has an interpretation that your right will be lost in case your eea family member is no longer qualified. Under the directive, you are covered till decree absolute is issued. As a result, the HO requests documents till the time of decree absolute to prove that the eea was qualified. End of HO interpretation.
According to the directive, you will be independent and apply at your own capacity. In the european casework instructions it is stated that HO will ask for ID of the eea and evidence of exercising treaty rights IN CASE A RESIDENCE CARD WAS NOT ISSUED BEFORE.
According to common sense, the eea is less likely to cooperate. In the meantime, the person who will suffer the most and pays the heavy price of controversial laws is the non eea family member.
Any ideas regarding this issue?

[bobobo]

Guerro Agree with what you say, makes sense to a reasonable mind. However do remember that there is no such stipulation in the EEA directives on providing proof of EEA national exercising treaty rights. This is what the HO asks for as this is the way that they have implemented the directive. They have the blessing of AIT on this as well. However if you look at the flip side to this, the HO are not absolutely wrong in doing so.Since the non EEA national derives their right through the EEA national they need to make sure that the EEA national is exercising rights. HO can do these checks thermselves for EEA nationals who work (via NINO) however if an EEA national is Self Sufficient or a Student they would not be able to verify this easily and then the whole data protection act woulod kick in where they cannot go around making enquiries without the permission of the applicant (EEA national). The onus would always be on the Non EEA national to prove he infacts meets all criteria. Sad but true.

Booboo, thanks for your efforts and replies. Retention of rights of residence is totally ambiguous in application under the directive by the HO. The HO has an interpretation that your right will be lost in case your eea family member is no longer qualified. Under the directive, you are covered till decree absolute is issued. As a result, the HO requests documents till the time of decree absolute to prove that the eea was qualified. End of HO interpretation.
According to the directive, you will be independent and apply at your own capacity. In the european casework instructions it is stated that HO will ask for ID of the eea and evidence of exercising treaty rights IN CASE A RESIDENCE CARD WAS NOT ISSUED BEFORE.
According to common sense, the eea is less likely to cooperate. In the meantime, the person who will suffer the most and pays the heavy price of controversial laws is the non eea family member.
Any ideas regarding this issue?

[Guerro]

Bobobo, does it mean that if the eea is employed you can submit their national insurance number and let the HO do the check?

[bobobo]

I am afraid that just submitting the NINO would not suffice, HO specifically ask for Pay Slips, Employment Contracts, Letter from employer etc so that they can establish that the EEA national has been exercising treaty rights.

The HO can do extra checks using the NINO but unfortunately you will need to submit extra documents.