Help Needed!!! PR and Reconsideration of decision refused

[dantata]

Please i would require the assistance of the gurus on this matter.

firstly am a non EEA national and have been married for 4 and half years with my EEA partner before our marriage broke down and filed for divorce last 2 years. after the divorce i applied for a retention of right with all the necessary documents and my EX bills and 3 months payslip up to the time of decree absolute
.
was offered a new residence card and issued with a letter from the UKBA stating that i have retained my rights. applied for EEA4 last year with my 5 yrs P60's, bank statments, bt bill and payslips. recieved a refusal letter stating that i did not retain my rights and that i did not submit my ex EEA nationals evidence of excersing treaty rights right to the time of divorce and also did not provide council tax in both name to prove that we resided together and for that reason my application is been refused.

wrote a letter of reconsideration to the caseworker,explaining that i already retained my rights and also pointed out the letter from UKBA to that effect and also that i do not need to provide my EX documents since i have retained my rights in an earlier application and had provided all the documents he is requiring again and that this application is for EEA4 and not for retention of right.

got a letter from the caseworker today still saying that my application was refused due to the fact that i did not provide the same documents he mentioned ealier even after i enclosed a copy of the letter stating that i already have a retained right of residence and also pointing out to him the immigration(european economic area)regulations 2006 para 17-
Issue of residence card

17.—(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—

(a)a valid passport; and
(b)proof that the applicant is such a family member.
(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of—

(a)a valid passport; and
(b)proof that the applicant is a family member who has retained the right
of residence.

please can someone help me out because from the law i do not see where it says i have to provide once again my ex documents cos i tot since i have retained my rights its now up to me to prove that am exercising treaty rights as if am the eea national. pls if am wrong can you also list out the documentation i now require because this is really confusing on how the law is been implemented.

tanx in advance and any advice will be highly appreciated

[Obie]

The requirements under Regulation 17(2) from regulation 10(5) and Regulation 15(1f) are different.

For the most part the case worker is wrong, but not in all parts.

For retention of Residence, you are meant to show that at the time of divorce, your ex partner was a qualified person.


The Requirement under Regulation 15(1F) is quite different.

Firstly, you will need to show that you have been living in the UK, in accordance with the for regulation for a period of 5 years, and at the end of this period, you were a family member who retained his right of residence under Regulation 10(5).

Essentially, it means you will have to show evidence covering the 4 years of your marriage, that your spouse was exercising treaty rights, after the marriage, you will then need to show, you meet the requirement under Regulation 10(6).

It is wrong for caseworker to say you have not retained your right of residence, because you have. However he/she will be right to say you have not provided evidence that you were residing in the UK in accordance with the EEA regulation during the currency of your marriage.

In those circumstance, you will not be able to receive the confirmation you have sought.

[dantata]

thanks obie for the prompt reply but please can you help by shading a little more light because am still confused.
like you said for the retention of right i showed that my ex was a qualified person and which was why they issued me with a new residence document for 5 years and a letter stating that i have retained my rights.

i made available documents showing that i have been working for the past 5 yrs when i applied for EEA4 but with this regulation 15(1F) does that mean i have to ask my ex for her documents once again to prove that she has been exercising treaty rights up to the time of divorce? i thought that the reason for the retention of rights was that in the future you would only be assessed by your merits alone and not of ur ex? what if a person's ex does not leave in the country any more or they are not in good terms then what?

if i were to leave the issue the way it is and apply for naturalisation which am due for,would i still be asked to provide my ex documents? sorry for all these questions because the relationship with my ex is strained and that is why am finding it hard to believe that i have to ask her for a favour. thanx

[Obie]

I am not sure you will be able to meet the requirement for naturalisation if you are not able to qualify under regulation 15(1f).

It is open to you to appeal the decision. Your appeal will be stronger, if you provided evidence to the HO showing you ex was qualified during the currency of your marriage.

The option is waiting until you have held retention of residence for 5 years. Then you will not need your spouse at all.

Regulation 15(1f) provides a pathway for residency during marriage to be accured for Permanent residence. You can still secure PR in your own right, but only if you have retained residence for 5years. This will translate as 5 years after your divorce was issued.

[Jambo]

When you have retained your rights, you have proved your (ex)-wife is a qualified person at single point of time - the divorce. You didn't prove she has been exercising treaty rights for a period of time which is required for PR.

To secure PR, you need to prove your wife was a qualified person during the period before the divorce and that you have been a qualified person during the time after the divorce. Alternatively as said, you can start counting the 5 years from the divorce.

If your ex-wife exercised treaty rights as a worker, then you can appeal and ask the HO to contact HMRC to retrieve her employment records. You will need to show that you did the best you can to retrieve them by yourself before asking the HO to do so.

[dantata]

Thanx Jambo and Obie.

[kampk121]

Hi Dantata,

I am in a similar situation, but yet have to apply for PR. I have reatained my rights following the divorce. and now Im going to apply for PR using the same set of documents, which I used for the ROR.
LET ME KNOW ANY UPDATE WITH UR CASE.
Thank you..

[Oke1]

Pls obie if I can understand u their as u mention
Section (15) that means some one need to show prove
That is EEA he/she exasice treat right before
Divource before he/she can Altain pr after
Apply for ror is what u means
The pls can u copy me all this section to
Read

Pls

[Oke1]

Pls obie if I can understand u their as u mention
Section (15) that means some one need to show prove
That is EEA he/she exasice treat right before
Divource before he/she can Altain pr after
Apply for ror is what u means
The pls can u copy me all this section to
Read

Pls

[mobismome]

Pls obie if I can understand u their as u mention
Section (15) that means some one need to show prove
That is EEA he/she exasice treat right before
Divource before he/she can Altain pr after
Apply for ror is what u means
The pls can u copy me all this section to
Read

Pls

hi dantata appeal you will win since ukba issued you another residence card confirming your retained right of residence you dont not need to show documents pertaining this again because you have tendered these documents before.

if you want to apply for pr what you need to show is evidence of you exercising treaty right as if your the eea national after divorce and proof of address period .

guy you will win your appeal

[Oke1]

Hi datata

Pls can you let me know all
The document you surmeet
For your retain right of rc
Because I too want to apply
After getting my divource
And did you give it to lawyer
Pls I will apreciate your reply

[Jambo]

hi dantata appeal you will win since ukba issued you another residence card confirming your retained right of residence you dont not need to show documents pertaining this again because you have tendered these documents before.

if you want to apply for pr what you need to show is evidence of you exercising treaty right as if your the eea national after divorce and proof of address period .

guy you will win your appeal

I disagree.

Say for example, you moved to the UK in 2007. Your husband doesn't work for the first 2 years and then started to work in 2010. You get divorced in 2011 and retain your rights (as you have been married for 3 years, lived in the UK for more than 1 year and your husband has been exercising treaty rights during the divorce). You have been working since 2007.

Would you still stay that person can apply for PR in 2012 after 5 years without providing evidence about the ex activities? No. Because when you retained your rights, you proved that your partner is working at the time of the divorce. You didn't provide evidence on his activities in the years before.

[Obie]

hi dantata appeal you will win since ukba issued you another residence card confirming your retained right of residence you dont not need to show documents pertaining this again because you have tendered these documents before.

if you want to apply for pr what you need to show is evidence of you exercising treaty right as if your the eea national after divorce and proof of address period .

guy you will win your appeal

I dont think the above is correct or in accordance with UK's interpretation of the Law either.

Also See Amos

[dantata]

hi kampk121 and oke1,
sorry my internet has been down for some days but am up and running.

oke1- for my retention of rights i did not use any lawyer cos its a straight forward process. i provided my p60's for the duration of my marriage and tennacy agreement in both names and for my Ex i just provided 3months of her pay slips prior to the decree absolute and divorce documents.

kampk121- i have contacted my ex and luckily for me she said she would help out but she lost her original p60's but have the photocopy so i have to make do with that and explain with a covering letter the reason for the copy and ask them if they want they cant contact HMRC to verify the documents.

also got a letter from the appeal tribunal requesting additional documentation so i will send over to the appeal tribunal my wife's documentation and a letter from the caseworker requesting my passport and council tax but nothing was ever mentioned about my ex and thats why my wifes documents were never included because i thought i have retained my rights and no need to bring my ex documents again.

another thing i have to point out is that the Home office fights dirty. they brought up my past immigration history(had a fake stamp in passport while on vistors visa) which has nothing to do with my application and just trying to destroy my credibility, so am seriously thinking of changing my paper based appeal to an oral one. even though am ashamed of the act but thats my past and they should not judge my application based on a previous act before i became a family member of an eea.
will keep you guys posted and thanx once again to you gurus for your advice

[waqas123]

hi danata
how many pay slips i need to apply ROR.
i mean 3 months before decree or 3 months after decree ??

[dantata]

waqas123- its 3 months prior to the final decree. e.g if you got your decree absolute in april, then you provide your patners payslips from january,febuary,march for the ROR.

[waqas123]

thank you danata!!

unfortunately i have only first 1.3 years of proof that we live together including payslips,because we worked together at same place so 1.3 years after marriage proof that we lived and work together, so payslips are only for first 1.3 years together.
now i am waiting for decree absolute which i am hoping i will get in next week. so my EX wife is not helping me for anything. is it possible that home office can asked HMRC that she is working or if refused Court can order head office to ask HMRC.

what do you think about my chances?