Retaining right of residence

[gentelman]

Dear All,

some one put this post earlier ,please if anyone can explain what is this ?As far my knowledge, Non eea national must show that eea national was a qualified person when divorced have finally granted .

Please can some body explain this 5.4.3 Making an application following divorce or annulment of marriage / dissolution of civil partnership
The following documents must be supplied:
 Passports of the non-EEA family members
 Divorce certificate/certificate showing termination of civil partnership
 Evidence that at least one of the non-EEA family members is a worker, self-
employed or self-sufficient.
If we have not previously issued a Residence Card we must be satisfied that the alleged EEA national is an EEA national and that the non-EEA nationals were living in the UK with the EEA national prior to divorce / dissolution of civil partnership, and that EEA was exercising Treaty rights during that time. So the word IF used,which I understand if RC already issued previously then non eea national can retain the rights of residence if marriage leasted 3 years and couple lived one year in the uk?then why ukba asked treaty rights during the divorce proceedings?is this not against the EEA law?please correct me if I am wrong.

[Obie]

Well i believe what they are essentially saying is that, if Residence Card was not previously issued then evidence of EEA national nationality like passport or ID card of the EEA national will be reqred. Also evidence of the EEA national having resided and Exercised treaty rights in the UK for 1 year prior to divorce will also be required.

If residence card was previously issued, then only the divorce certificate and evidence that at time of divorce, the EEA national was a qualified person.
The UK's interpretation is that, someone cannot retain something they have not got, therefore a right of residence cannot be retained if there is no right of residence in the first place. To prove a right of residence, evidence of Treaty right up to the issuance of the decree absolute will be required.

Without a stretch of the imagination, i dont think their legal interpretation of the directive is right .

[austin100]

Well, I ve gone through the guide chapter 5 of RC ukBA for case worker. They do not state that and the Eu regulation doesnt as well that EEA proof of exercise treaty right as at the time and end of divorce, only in case were they ve nt issued any that it will be required. So, in that cause they going against their guide and Eu law.

[Obie]

Well as i have said before the guidance is not a law. It cannot take precedent over domestic legislation in court.

Regulation 10(5)(b) essentially state that the family member should be residing in the UK in accordance with the Regulation on the date of Divorce. This means that he or she should be a family member of a qualified person. This is the only circumstance in which a non EEA family member can be residing in the UK in accordance with the regulation.

Therefore the UK law indeed provides for this restriction.

Also see the leading caselaw on this, Amos