EEA4 while EU sponsor is working abroad

[Massy]

Hi all,

Apologies in advance if this subject has already been discussed here but I couldn't find anything like this. Here's my story:
I'm a non EU national who arrived in the UK in Sept 03 on a student visa.
- Got married to EU national in June 08;
- Applied for and received EEA2 RC in Jul 09
- unfortunately lost passport and (did all the admin stuff and got a new passport in Feb 2013)
I'm in process of re-applying for RC but not too sure which is applicable: can I apply for EEA4 as it's the 5th year?.
Additionally and more importantly (I think), my hubby got a job offer in another EU country back in in May 2011.
We have have had to adjust our lives to manage,(I couldn't leave with him as I love my job here and I'm also studying for my professional qualification), but we're managing..we take turn in traveling back and forth and skype also helps ..
Anyways, could you please advise if my hubby could be considered as a qualified sponsor in this case? I can only prove that he was living and working in the UK from 2008 to end of 2010.
Also, can I apply under the retention of rights if we assume that he has left the UK permanently? (he has currently no plan of moving back here permanently - in the short term anyway..)
On my side, there is no issue as I've always work/study since I moved in this country.
Alternatively, would it best for me to wait until the end of the year and apply for ILR (under 10 years residency)?

Thanks in advance for all your thoughts and advice on this matter!!

[Lucapooka]

If he is not working in the UK, but is living in the UK, he would be classed as self-sufficient and needs to have CSI for both of you. If he is not physically present inside the UK for six months of the year, he has broken residence. Those are the issues with regard to your PR, and only you know the facts, so only you can say if you qualify.

Even if you wait for ILR under the UK rules, you still need to show that your were in the UK under the EU rules, which is not clear based on what you have stated.

[Massy]

Thanks Lucapooka. Am I right in assuming that the CSI will need to have started from the moment he stopped working in the UK? Also, does it have to be his? ( I have a CSI from my job since 2010 and I added him as a beneficiary). Finally, do the 6 months have to continuous? Does it count if we can show that he was travelling back and forth?
On my side, I can definitely prove that I qualify, however, from what I've been reading throughout, the main issue resides in proving that the EU sponsor has been exercising his treaty rights...
Cheers

[Jambo]

Am I right in assuming that the CSI will need to have started from the moment he stopped working in the UK?

Yes

Also, does it have to be his? ( I have a CSI from my job since 2010 and I added him as a beneficiary).

He doesn't need to be the main policy holder. Beneficiary is fine.

Finally, do the 6 months have to continuous? Does it count if we can show that he was travelling back and forth?

it's total 6 months out of a 12 months period.

[Lucapooka]

On my side, I can definitely prove that I qualify, however, from what I've been reading throughout, the main issue resides in proving that the EU sponsor has been exercising his treaty rights...

Yes, your leave is based on his, so he needs to qualify if you are to qualify also.

[Massy]

Thanks Jambo. I guess I'm in a bit of a predicament as hubby's been in the UK less than 6 months in 2012... Will it be worth going down the retention of rights route from 2013? he hasn't been back since new year...Any thoughts on what might be my options if I want to remain in the UK?
Also, do you please have any indication of success rate under ROR for EEA4 by any chance?
Sorry for the barrage of questions, i'm trying to get all the info I can before i deal with our dear friends at the UKBA

[Massy]

btw, if anyone out there has been in a similar case, please feel free to share your experience, good or bad. Or if there is an existing thread on a similar topic, please send me a link and I'll have a read...
Thanks everyone!

[Jambo]

Retention of rights apply when you get divorced, the EEA national dies or if you are a child in education and your parent leaves the UK. It doesn't apply in your case. Basically, at the moment, you have no legal basis to your stay in the UK.

On what basis were you planning to apply now for the new RC?

[Massy]

No legal basis to stay in the UK? Oh dear!
At first, I just wanted to re-apply for EEA2 (for my new passport), but then I thought I could qualify for EEA4 as 2013 is the 5th year of our marriage, 1 year being in the UK. Now i'm just scared and don't really know what to do or what options I have...

[Jambo]

A new RC application requires your partner ID (passport or ID card) and proof of treaty rights. How did you plan to provide those for the application?

The main issue is that your partner is not living in the UK anymore. Once he is back living in the UK, you automatically obtain right of residence.
Although you might have lost your right of residence, it is unlikely the HO are aware of that so they won't knock tomorrow to deport you. However, they will not issue you a residence document if your partner is not a resident in the UK anymore.

[Massy]

oh, I have his passport (as he can travel within Europe with just his ID card) and I also have proof of employment in the UK but only up to Dec 2010. Even if he comes back here, it might take a while for him to secure a job in his line of work, which is why he accepted his current job offer in the 1st place!
Quite worried now...

[Massy]

Also, I didn't realise that a spouse could not apply under ROR if they were not divorced or widowed!! I guess i'm sc..ed then! wow, a lot to take in...sigh!

[Jambo]

Once your husband returns to the UK to live, you can apply the next day on the basis of self sufficient. He would then still be allowed to travel abroad upto 6 months a year without breaking his residency.