Retain right of residence(request for passport return)

sameer2012 · Post by **sameer2012** » Tue Sep 13, 2011 8:13 pm

Hi,
All of you guys.I am here to collect some information for my friend.He recently applied for Retained right of residence on the basis of his divorce from eea national.His 10 years long residence will complete in March-12.Still he got 6 months to get his passport back with further 5 years LTR.
His main question is that if in case his passport would not come within next 6 months or before march-12.can he request home office to send his passport back so he could apply for ILR on the basis of long residence.His current LTR expires in Dec-13.so if he request for his passport so i think there should be any problem.his brief history is as below;
1. Came to uk 23 march 2002
2. Married to eea national in feburary 2008
3. Decree absloute issued on 24th may 2011(after 3 years of marriage)
4. Send his passpoort & other supporting documents for RoR on 12th september 2012 .
5. 10 years long residence completes in march 2012.

he is eligible for ILR via long residence because he comes under immigration control and home office confirmed that as long as he can prove that he spends 10 years lawful residence in uk he would ber eligible for ILR on 10 years long residence basis.
I hope i mentioned all the circumstances about him.seniors please help me in this regard.thanks

Post by **Directive/2004/38/EC** » Tue Sep 13, 2011 8:41 pm

There is another recent thread from somebody who now has both a Residence Card and ILR. It raises some nice options. Your friend could apply for British citizenship one year after getting ILR.

If UKBA already has his passport, I suspect he could apply for ILR and include a cover letter that explains that UKBA already has the passport as part of an EEA Retention of Rights application.

sameer2012 · Post by **sameer2012** » Tue Sep 13, 2011 9:08 pm

Directive/2004/38/EC wrote:There is another recent thread from somebody who now has both a Residence Card and ILR. It raises some nice options. Your friend could apply for British citizenship one year after getting ILR.

If UKBA already has his passport, I suspect he could apply for ILR and include a cover letter that explains that UKBA already has the passport as part of an EEA Retention of Rights application.

thanks for your reply.if his passport didn't turned up till march-12 all he needs to do just fill the set(o) form add a covering letter and 2 passport size pictures and a life in uk test(he already passed that).
is it right.please guide me.many thanks again

Post by **Directive/2004/38/EC** » Tue Sep 13, 2011 9:41 pm

Why do you think the passport will not be back until March 2012?

sameer2012 · Post by **sameer2012** » Tue Sep 13, 2011 10:58 pm

Directive/2004/38/EC wrote:Why do you think the passport will not be back until March 2012?

Hi just in case because the timeline for Residence cards is 6 months we can't any update on our applications before 6 months.that's why he is worried otherwise i hope he should receive his passport back in 3/4 months time.let's hope for the best because he wants to consider each option he could avail.
anyways if he received his passport before march that would be great other he just need to send a form,2 photos,life in uk test letter thats right?
can you please also send me a link regarding that thread you have mentioned.
thanks

Post by **geriatrix** » Wed Sep 14, 2011 11:11 am

I stand to be corrected but IMHO he will be eligible for ILR under (10 year lawful) long residence only if he can prove his right of residence in the UK following his divorce from his (now ex) EEA spouse.

Post by **Directive/2004/38/EC** » Wed Sep 14, 2011 11:26 am

http://www.immigrationboards.com/viewtopic.php?t=85939 is another person with ILR and a RC

Post by **Directive/2004/38/EC** » Wed Sep 14, 2011 11:28 am

sushdmehta wrote:I stand to be corrected but IMHO he will be eligible for ILR under (10 year lawful) long residence only if he can prove his right of residence in the UK following his divorce from his (now ex) EEA spouse.

No. There can be two parallel streams of authorization for one person.

The easiest way to think about this is to consider somebody who is single in the UK and has ILR. If they then marry an German, then they will not loose their ILR, but they will ALSO have the rights of an EEA Family member (such as recognition of qualifications and free movement in Europe).

Post by **geriatrix** » Wed Sep 14, 2011 12:01 pm

Will the OP's stay in UK subsequent to the divorce be "lawful" if his application for retention of rights is refused (for some reason)? Or is application for "retention of rights" is not really an application for leave but just a confirmation of such (implied) rights (e.g. - in the form of a vignette or residence card)?

Post by **Directive/2004/38/EC** » Wed Sep 14, 2011 12:05 pm

sushdmehta wrote:Will the OP's stay in UK subsequent to the divorce be "lawful" if his application for retention of rights is refused (for some reason)? Or is application for "retention of rights" is not really an application for leave but just a confirmation of such (implied) rights (e.g. - in the form of a vignette or residence card)?

I believe the non-EU has the right to remain, and you just apply for a confirmation. But if it is refused then obviously there is a disagreement about whether they have it. You are certainly not asking for discretionary permission from UKBA.

mcovet · Post by **mcovet** » Wed Sep 14, 2011 12:08 pm

in order for the OP's "friend" to remain in the UK after the divorce he would need to be "exercising treaty rights" as if he were an EEA national. So, even though this is a rubber stamping exercise, if he's not "exercising" treaty rights as if he were an eea national (working, self-employed, self-sufficient etc) then UKBA may refuse the application and he would have to appeal/leave the country and his ILR may be rejected as this period between divorce and 10 years would have been illegal.

If he's exercising treaty rights, then the application is just a confirmation of his right.

sameer2012 · Post by **sameer2012** » Wed Sep 14, 2011 12:18 pm

mcovet wrote:in order for the OP's "friend" to remain in the UK after the divorce he would need to be "exercising treaty rights" as if he were an EEA national. So, even though this is a rubber stamping exercise, if he's not "exercising" treaty rights as if he were an eea national (working, self-employed, self-sufficient etc) then UKBA may refuse the application and he would have to appeal/leave the country and his ILR may be rejected as this period between divorce and 10 years would have been illegal.

If he's exercising treaty rights, then the application is just a confirmation of his right.

he applied for retention of right of residence with all the supporting documents with confirmation of slf employment of my friend's ex eea national wife throughout their marriage their co habitation in uk my friend he is working full time.all the requirements for retention of rights he fulfilled.just in case if his passport got late then of course he needs to think other ways as well.might be government stopped granting ILR on the basis of long residence after april 2012..thanks

mcovet · Post by **mcovet** » Wed Sep 14, 2011 12:44 pm

I see what you mean, he basically wants to save a year. He may be eligible for 10-year ILR in 2012 March, while even after having retained the right to reside, to apply for PR he'd need to wait till 2013 February...

If he has spare cash, then sure, go for it! Worse comes to the worst, by month 5 you will have a clear idea of what UKBA require in relation to RoR application. And as you said, you would withdraw the passport, fill out an ILR application and post it to another department for consideration, I wouldn't trust the EEA department resending your passport and other docs over to the Set(O) department.

Go for it, these are non-exclusive routes and nothing stops you in theory or practice to do so. Good thinking and will save him a year's wait to settle in UK! Good luck! Don't forget the life in the uk test!!!!! for your ILR and my advice is even if he does get the Residence Card in a couple of months time, still apply for ILR in March 2012!

sameer2012 wrote:
mcovet wrote:in order for the OP's "friend" to remain in the UK after the divorce he would need to be "exercising treaty rights" as if he were an EEA national. So, even though this is a rubber stamping exercise, if he's not "exercising" treaty rights as if he were an eea national (working, self-employed, self-sufficient etc) then UKBA may refuse the application and he would have to appeal/leave the country and his ILR may be rejected as this period between divorce and 10 years would have been illegal.

If he's exercising treaty rights, then the application is just a confirmation of his right.
he applied for retention of right of residence with all the supporting documents with confirmation of slf employment of my friend's ex eea national wife throughout their marriage their co habitation in uk my friend he is working full time.all the requirements for retention of rights he fulfilled.just in case if his passport got late then of course he needs to think other ways as well.might be government stopped granting ILR on the basis of long residence after april 2012..thanks

sameer2012 · Post by **sameer2012** » Wed Sep 14, 2011 3:43 pm

he applied for retention of right of residence with all the supporting documents with confirmation of slf employment of my friend's ex eea national wife throughout their marriage their co habitation in uk my friend he is working full time.all the requirements for retention of rights he fulfilled.just in case if his passport got late then of course he needs to think other ways as well.might be government stopped granting ILR on the basis of long residence after april 2012..thanks[/quote][/quote]

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Retain right of residence(request for passport return)

Retain right of residence(request for passport return)