Visa after Divorce - between NON - EEA a EEA

[alex788]

Hi

I am NON - EEA living in UK with EEA Spouse more than 2 yrs. We have with EEA residency visa valid up to 2010 because of my spouse is EEA member.

We may be get divorced because of some issues.

My questions is >>
On divorce, Can I continue my existing VISA ? I don’t think So , but As per Directive 2004/38 , Regulation 10, 2006 which says 'Retention of right of residency following a divorce '

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Retention of the right of Residence

Directive 2004/38 has incorporated ECJ caselaw such as Baumbast and Diatta to allow
non-EEA nationals family members to retain the right of residence.

There are now a number of circumstances in which non-EEA national family members
of EEA nationals may retain their right of residence in the UK if the EEA national leaves
the UK or dies or the relevant marriage or civil partnership is terminated These
circumstances are set out in Regulation 10 of the 2006 Regulations.

6.1 Retention of the right of residence following divorce or annulment of
marriage/dissolution of civil partnership
A person who ceases to be a family member of a qualified person on termination of a
marriage or civil partnership will retain a right of residence if:
• the marriage or partnership 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, or
• the former spouse or civil partner of the qualified person has custody of the
children or a right of access to the children in the UK, or
• there are particularly difficult circumstances (such as domestic violence)
justifying the retention of the right of residence.
In such circumstances a family member retains a right of residence if:
(a) S/he is a non-EEA national but is pursuing activity which would make
him/her a worker or a self-employed person if s/he were an EEA
national,
(b) S/he is a self-sufficient person, or
(c) S/he is the family member of a person in the UK who is either a worker,
self-employed, or is a self-sufficient person.
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>>> Since I lived 1 yr in UK and already 3 yrs in the marriage , Can I retain the residence aftre divorce ? Can any body calrify? Advise. Thanks to all.

[John]

Yes you can, and for the reasons you state.

Prior to the regulations coming into force on 30.04.06 you would have encountered real problems. But that is no longer the case. Just continue with your current Residence Card for the moment and then shortly before you get to the 5 year mark in the UK, use form EEA4 to apply for Permanent Residence.

Hopefully by then IND will have designed the EEA4 to cope with this situation, or indeed introduced a "EEA5" to use for the purpose. I say that because the current form really makes no attempt to deal with the provision of assistance to you.

[marcuslambert]

hey alex, and john,

this is a very good question since i'm also in the same problem, but alex, have you actually been married for at least 3years? cause you say you have been married for 2 years?

and john, on these new guide lines, de we have to be married for 3 years in addition of being resident for 1 year, or do we have to be married for 3 years, or , being resident for at least 1 year.

i have been married for 2 and half years, and had my residence permit since then, but havent completed my 3 years yet, and we are planning a divorce now, she wont wait one more day, and we have already sold our joint house. but we lived with eachother for 6 years. will i be terribely affetcted by the divorce, or will i still stand a chance? please help, and alex please state the date of your marriage so john can help further.

many thanks.

marcus

[John]

e we have to be married for 3 years in addition of being resident for 1 year, or do we have to be married for 3 years, or , being resident for at least 1 year.

You have to have been married for at least three years, of which at least one year needs to have been spent in the UK.

So it is not minimum of 3 + minimum of 1 .... it is minimum of 3, of which at least 1 in the UK.

Have a look at the detailed regulations. Download The Immigration (European Economic Area) Regulations 2006 and in particular have a good read of regulation 10.

[alex788]

Hey John

I think John is quite right. John, but what exactly 3 years means.

Does it mean 3 years with nationality from EEA Country , what if EEA country has not completed 3 years since accession, per ex : Poland or Estonia ( All 10 new accession countries) has not completed 3 years since their accession to EU, they joined May1 2004. Does it mean the 3 years marriage has to pass May1 2007.

It also say we have have job or worker. What If we will not have job during application process or before application. Is there any application at all?

marcus>> I need some advise how you plan to settlee the divorce, I don't have house. but have some saving in my current bank account, do I have to share 50/50. you may email me alex788@gmail.com

[John]

Alex, good question. A further look at those EEA regulations that came into force on 30.04.06, and the way it defines "qualified person", seems to suggest that it does not matter than the person concerned is an EEA national of a State that has not been a member of the EEA/EU for 3 years.

Have a read of regulation 6. It very clearly uses the present tense, as in :-

In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom ......

That is, it does not talk about the past, and even covers, I think, someone who has not even been an EEA citizen for 3 years .... for example someone granted say Polish Citizenship just one month earlier.

[alex788]

Jon

One more question

1) Do I have to apply to exercises the retention of the right because of the I am qualified after divorce, if so which form

2) What if the EEA national leaves the country during the application period?

3) Can you please suggest any immigration lawyer in London especially dealing with EU visa policy/ Above issue, who could be a helpful in this matter. Or any independent body who may advise.

Thanks for your ongoing advise, I am truly grateful for you.

Kind regards
Girish Das