Am i required by law to apply for RC after divorce?

dotsystem · Post by **dotsystem** » Fri Jul 19, 2013 3:26 pm

Hello members, am going through divorce at the moment. I intend to keep my residence card and apply for PR at once. I'm just wondering if I do or do not have to apply for retain right of residence. Am a frequent traveller, and I hate the thought of sending my passport off for months again.

Your valid response will be appreciated. Thank you

Post by **EUsmileWEallsmile** » Fri Jul 19, 2013 10:24 pm

In this post, you don't provide many specifics.

I would be inclined to apply for appropriate documentation and get it over and done with.

Post by **Directive/2004/38/EC** » Sat Jul 20, 2013 3:11 am

It is unclear how long you have been married and how long you have been in the UK. The devil is in the details.

dotsystem · Post by **dotsystem** » Sat Jul 20, 2013 11:47 am

Thanks EUsmiles and Directive. Sorry for not giving more details. Below are details relevant to my enquiry.

Married to a British woman in the UK April 2009, Moved to Ireland in Oct 2010 to exercise treaty rights, Moved back to UK in May 2011 under EU law. And we both been living in the UK since then. RC issued in Oct 2011. Divorce proceeding June 2013. I m a full time worker and so my EX.

Marriage lasted 4 yrs, Lived in the UK 2yrs under EU immigration., Me and Ex are workers.

Hope the info above will be adequate for your advice. thank you.

Ricardo · Post by **Ricardo** » Sat Jul 20, 2013 4:00 pm

You should be fine if you have relevant documents. You're currently eligible for RoR and you will quality for PR in 2016.

dotsystem · Post by **dotsystem** » Sun Jul 21, 2013 9:11 am

Thank you. I know am eligible for RoR. My question is am I required by law to apply for another residence card after divorce. Thank you

Imshzd · Post by **Imshzd** » Sun Jul 21, 2013 9:40 am

Yes.

You have to inform HO once your divorce finalised.

And if you not apply new RC ROR,then your old RC will be revoked.

Post by **EUsmileWEallsmile** » Sun Jul 21, 2013 9:59 am

Imshzd wrote:Yes.

You have to inform HO once your divorce finalised.

And if you not apply new RC ROR,then your old RC will be revoked.

This is a very strong statement, perhaps you didn't mean for it to be. Do you have a reference for this (legislation, guidance, etc)?

Amebo · Post by **Amebo** » Sun Jul 21, 2013 11:49 am

Imshzd wrote:Yes.

You have to inform HO once your divorce finalised.

And if you not apply new RC ROR,then your old RC will be revoked.

Pls Imshzd, is there anywere it state that if you dont apply for ROR after divoce your old Rc will be revoked?

Because a very good friend of mine that divorce her husband after 3 years and 5 months, waited for another 1year and 5 months b4 she applied for PR, she got it within 13 weeks.

Provided you have all the necessary documents to surpport ur APP, beside HO did nt send her any letter when 1st issued the OLD RC.

Pls confirm it for me.........

Imshzd · Post by **Imshzd** » Sun Jul 21, 2013 3:02 pm

If you read the last line of the letter which you received with your RC,then it will clear on you,that you have to inform HO in case your family circumstances ever changed.

HO can revoke the RC in all cases in which EEA national leave the country,ceased qualified activities,ceased to be a family member of an EEA national etc etc unless non EEA national retain the rights of resident.

For more information you can read chapter 5 EU case worker instructions.

So this is very clear that after divorce non EEA national has no rights to reside in the United Kingdom unless HO confirm non EEA nationals retain rights of resident.

yemco · Post by **yemco** » Sun Jul 21, 2013 4:10 pm

[quote="Imshzd"]If you read the last line of the letter which you received with your RC,then it will clear on you,that you have to inform HO in case your family circumstances ever changed.

HO can revoke the RC in all cases in which EEA national leave the country,ceased qualified activities,ceased to be a family member of an EEA national etc etc unless non EEA national retain the rights of resident.

For more information you can read chapter 5 EU case worker instructions."

So this is very clear that after divorce non EEA national has no rights to reside in the United Kingdom unless HO confirm non EEA nationals retain rights of resident.

On my own opinion I think once you have all the documents to back your application for ROR the HO will only revoke your former RC and issued you a new RC if your application for new RC is successful .

Ricardo · Post by **Ricardo** » Sun Jul 21, 2013 4:35 pm

I think something is wrong here. From what I know and read, RoR gives you automatic right if you fulfil the requirement for RoR. It isn't compulsory that you inform the Home office about your divorce and if you choose to, they'll expect you to make application for RoR and if you are successful with your application then they will cancel your old RC and issue a new one. They only revoke your old RC if they find out that there was a tangible evidence that you were not actually qualify for the first one.

Imshzd · Post by **Imshzd** » Sun Jul 21, 2013 4:47 pm

Ricardo wrote:I think something is wrong here. From what I know and read, RoR gives you automatic right if you fulfil the requirement for RoR. It isn't compulsory that you inform the Home office about your divorce and if you choose to, they'll expect you to make application for RoR and if you are successful with your application then they will cancel your old RC and issue a new one. They only revoke your old RC if they find out that there was a tangible evidence that you were not actually qualify for the first one.

ROR is not an automatic rights.

As a family member of an EEA national who is a qualified person,non EEA national may not ask for RC.

But after divorce non EEA nationals are no more family members of an EEA national.So non EEA nationals must have to inform HO and ask for ROR RC.

Ricardo · Post by **Ricardo** » Sun Jul 21, 2013 9:16 pm

It's not a most that you inform HO, but it's better to inform them. People maybe thinking it's a most because of the content on the letter attached to the first RC. I can't find anywhere on the EU directive that the host country most be informed.

Post by **EUsmileWEallsmile** » Sun Jul 21, 2013 10:35 pm

Imshzd wrote:If you read the last line of the letter which you received with your RC,then it will clear on you,that you have to inform HO in case your family circumstances ever changed.

HO can revoke the RC in all cases in which EEA national leave the country,ceased qualified activities,ceased to be a family member of an EEA national etc etc unless non EEA national retain the rights of resident.

For more information you can read chapter 5 EU case worker instructions."

So this is very clear that after divorce non EEA national has no rights to reside in the United Kingdom unless HO confirm non EEA nationals retain rights of resident.

On my own opinion I think once you have all the documents to back your application for ROR the HO will only revoke your former RC and issued you a new RC if your application for new RC is successful .

And where in directive 2004/38/ec does it say exactly that?

Post by **EUsmileWEallsmile** » Sun Jul 21, 2013 10:39 pm

Ricardo wrote:I think something is wrong here. From what I know and read, RoR gives you automatic right if you fulfil the requirement for RoR. It isn't compulsory that you inform the Home office about your divorce and if you choose to, they'll expect you to make application for RoR and if you are successful with your application then they will cancel your old RC and issue a new one. They only revoke your old RC if they find out that there was a tangible evidence that you were not actually qualify for the first one.

I would think this is a reasonable summary.

Imshzd · Post by **Imshzd** » Mon Jul 22, 2013 12:20 am

This is unclear so far but what uk saying is that..

5.1 Divorce or annulment of marriage / dissolution of civil partnership
The case of DIATTA (ECJ 267/83) established that a spouse did not cease to be a family member in the event of marital breakdown/separation until such time as a divorce was finalised (Decree Absolute obtained).
Our policy is to revoke or to refuse to issue/renew a residence card in the event of divorce from the EEA family member, unless the non-EEA national has a retained right of residence in the UK (see section 6).

So what I understand that UK policy is clear that they can revoke or to refuse to issue/renew a residence card after divorce from EEA national,unless non EEA national retaind the rights of residence.

So question is this how non EEA national retaind the rights of residence?and who will confirm this?

Non EEA national OR home office?

If non EEA national has the powers to declare or confirm the retain rights to reside then non eea national should write a letter in which he/she write that (I/non EEA national can confirm that I/my self retained the rights of residence after divorce). And sent this letter copy to home office so they can up date thier record.Then yes there is no point to apply ROR.

But if non EEA has no powers and authority then after divorce home office can revoke the RC unless non EEA national retained the rights of residence by applying EEA2/4.

Take a look on the letter which home office sent with the RC.

Last 3 lines saying,

This Directorate should be notified immediately if your family member decides to leave the United Kingdom,or ceases to a Treaty rights here,or if you cease to be a family member.

So this letter is called terms and conditions of your RC.

It clearly says SHOULD BE NOTIFIED IMMEDIATELY.

And if you inform HO after 1 year or 1 and half year then this is not immediate notification.
And the time spend after divorce may illegal unless retained the rights of residence with proper procedure.

And that's all,if you don't wanna apply ROR after divorce then my best wishes in advance for your PR if successful.

Post by **Directive/2004/38/EC** » Mon Jul 22, 2013 12:24 am

Home office often says things which are legally incorrect or at the very least incomplete. What they say in their letter may or may not be compliant with the law, but is usually not the whole story.

Imshzd · Post by **Imshzd** » Mon Jul 22, 2013 12:33 am

Yes that's the problem.

And after divorce non EEA nationals have no choice except to follow the uk home office procedure.

Post by **Directive/2004/38/EC** » Mon Jul 22, 2013 12:35 am

Imshzd wrote:And after divorce non EEA nationals have no choice except to follow the uk home office procedure.

Why no choice?

Ricardo · Post by **Ricardo** » Mon Jul 22, 2013 12:59 am

Imshzd wrote:Yes that's the problem.

And after divorce non EEA nationals have no choice except to follow the uk home office procedure.

Why can't you back up your claim? You seemed to be relying on the HO letter accompanying the first RC which isn't relevant to RoR. It's for those who doesn't meet the requirements for RoR. A RoR application is a confirmation of existing right just like the first application for RC. Your old RC remains valid until the HO confirm your RoR and issue another RC.

Post by **vinny** » Mon Jul 22, 2013 3:08 am

HS (EEA:revocation and retained rights) Syria [2011] UKUT 165 (IAC) (13 April 2011) wrote:18. It is trite that in EU law cases, the residence document is the evidence of the right and not the source of it....
....

68. ...

b. Declaring the residence card remains valid unless and until revoked
...

Ricardo · Post by **Ricardo** » Mon Jul 22, 2013 8:02 am

Thanks vinny. Some members have been giving misleading and depressing information to other members here via PM. Why would someone put up a strong argument about what they don't know?

Nimitta · Post by **Nimitta** » Mon Jul 22, 2013 9:18 am

Imshzd wrote:ROR is not an automatic rights.

The real question is whether Direct Effect principle extends over the ROR cases or not. Retaining rights of residence is under the provision of the EU law, not the UK domestic law. Do you know any reason why of a sudden the Direct Effect principle should stop working and cannot to be applied here? I am absolutely sure of one thing though. You cannot support your thesis "ROR is not an automatic right" by the evidence of the HO violating it.

I do agree with EUsmileWEallsmile that it is better to apply for EEA2 after divorce though.[/u]

Imshzd · Post by **Imshzd** » Mon Jul 22, 2013 9:31 am

Ricardo wrote:
Imshzd wrote:Yes that's the problem.

And after divorce non EEA nationals have no choice except to follow the uk home office procedure.
Why can't you back up your claim? You seemed to be relying on the HO letter accompanying the first RC which isn't relevant to RoR. It's for those who doesn't meet the requirements for RoR. A RoR application is a confirmation of existing right just like the first application for RC. Your old RC remains valid until the HO confirm your RoR and issue another RC.

Hold on.what do you mean???

Let me read first what was posted on my back.

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Am i required by law to apply for RC after divorce?

Am i required by law to apply for RC after divorce?