Retaining the rights of residence

[Silmarila]

Good morning everyone! The forum is very informative, and it helped me a lot to understand basic things about retaining the rights of residence, but I have one question left.

I have been married for 16 years, but now the marriage is about to end. I am taking it rather hard, and it is very difficult to even think of anything right now, and less of all about being involved into paper work of any kind, but it doesn't look like I have much of a choice So, here is the story.

My husband is EEA citizen and I am non-EEA. I sent my Residence card application in June, but have not received any news from the HO yet. So, I cannot file divorce papers yet. I need my passport and marriage certificate back first.

More or less I understand the requirements for the retention the rights of residence. We are married for more than 3 years, we will be residing in the UK for over 1 year by the time of initiating divorce procedure, EEA should be working for the period between initiating divorce and getting the decree absolute (no problems with that). I should be working when I send the RC application to retain my rights of residence (no problems). And my husband is willing to help me providing necessary papers for retaining rights of residence.

I have a question about my current application for the RC though. I am not sure I understand if getting the RC (I guess, it should arrive by December) makes any difference. I have two options. I can revoke my application now, file divorce papers and then apply for retaining rights of residence. Alternatively I can wait until the RC arrives and then file divorce papers etc. Does it make any difference at all? Will it be faster/either to retain rights of residence if I get the RC first?

[mcovet]

1) You can request a replacement marriage certificate whether in this country or abroad (if you married abroad). You do NOT need a passport to make a divorce petition in this country and you can divorce in the UK even if you were married abroad, with a foreign marriage certificate, provided you are resident in the UK.

2) No need to request anything back from the HO, given they take ages to process applications, leave your EEA2 application where it is. You do not need to notify them of divorce proceedings as until the actual finalisation of divorce (which could take 3-6 months) you may not go through with the divorce theoretically so nothing to declare until actually divorced.

It is helpful that your husband is going to be helpful. Only initiate divorce proceedings once you have resided in the UK for 1 year. Even though the UKBA should look at 1 year from when the divorce was finalised, do not give them a chance to pick up on this.

Once divorced, you may apply ANY TIME for the retention of right to reside, but the sooner the better as your husband should be assisting and you never know where he may be in a few years' time. So, once you divorce, you send another EEA2 application with your passport etc and then request your passport back, so that you can travel (if you have to) while waiting for your 2nd application to be considered and you will have a Residence Card issued after your 1st application in the passport so no stress over waiting times. Please note, both RC would look identical and UKBA do not issue a separate looking RC after you retain your right, it will be another 5-year EEA fam member card, so make sure you get/request the correct accompanying/covering letter from them which acknowledges that you may live in the UK in your own right!

Good luck and ask any other questions. Really sorry to hear about a break up of a genuine relationship, feel genuinely sorry! But that's life.

[Silmarila]

Thank you very much, Mcovet for answering my questions and your compassion.

I thought that requesting papers back from the HO might not be a good idea, thank you for confirming that.

One more question. I read somewhere that if I already have a RC, I do not have to include the EEA passport the second time, when I apply for retaining right of residence. Is it true?

Do I have to request the letter acknowledging that I retained my rights of residence from the HO or they normally issue it when they send me RC?

I agree that the sooner I apply for retaining rights of residence the better. With divorce you can never know for sure what happens next, let alone in a year. So, I am going to do that ASAP after the decree absolute is issued.

Another question how I should get prepared for the PR application? What documents I should secure? I understand that I have to prove 5 years of exercising the Treaty rights. Do I have to prove my future ex had been exercising the Treaty rights for the period between our arrival and the time when the decree absolute was issued?

[mcovet]

they should automatically send a covering letter, but most of the times they mistakenly send a generic letter saying you are still a family member of an EEA national and should anything change you must notify them. You should ensure that if you get that type of wrong letter you contact them asap and request the correct one.

As regards getting ready for PR. You would need to prove 5 years lawful residence in the UK under EEA Regulations. In this case you would provide bank statements, work letters, payslips or P60s as proof of residence in the UK before divorce and after the divorce you would have to prove you have been CONTINUOUSLY exercising treaty rights AS IF you were an EEA national (so either a worker, or if not, then Comprehensive Health Insurance and moneys= self-sufficient). They will not and should not ask anything about your ex husband at that stage as you would have confirmation that you already retained the right to reside in you OWN RIGHT, the process which requires certain proof from your ex in the first place.

so, just start collecting proof of residence in the UK and at the end of 5 years (still a long way to go for you but better to start now) you will be able to apply for PR.

Good Luck

[sameer2012]

they should automatically send a covering letter, but most of the times they mistakenly send a generic letter saying you are still a family member of an EEA national and should anything change you must notify them. You should ensure that if you get that type of wrong letter you contact them asap and request the correct one.

As regards getting ready for PR. You would need to prove 5 years lawful residence in the UK under EEA Regulations. In this case you would provide bank statements, work letters, payslips or P60s as proof of residence in the UK before divorce and after the divorce you would have to prove you have been CONTINUOUSLY exercising treaty rights AS IF you were an EEA national (so either a worker, or if not, then Comprehensive Health Insurance and moneys= self-sufficient). They will not and should not ask anything about your ex husband at that stage as you would have confirmation that you already retained the right to reside in you OWN RIGHT, the process which requires certain proof from your ex in the first place.

so, just start collecting proof of residence in the UK and at the end of 5 years (still a long way to go for you but better to start now) you will be able to apply for PR.

Good Luck

Hi I have a quick question.If someone got divorced from her eea family member and after divorce without retaining their right of residence If he left the country & then come back and now he applied for PR.
would he be able to get PR on such basis.Please help in this regard.
Thanks

[Silmarila]

A lot of details seem to be missing in your question. But two things I know for sure. The mere fact that EEA got PR does not make non-EEA eligible for PR.
Another thing is whether you applied for retaining your rights or residence or not, after the decree absolute has been issued, you are on your own, and no changes in your EEA spouse status can affect yours in any way.

Why did not you apply for retaining your rights of residence? As Mcovet has already said, it is usually wise to do it ASAP.