PR and claimed benefits

[union]

Hello guys,
I would really need your help here please.
I came to the UK in October 2008 as a student and completed my MSC degree and had post study work visa for 2 years thereafter.
I started living together with my ex-wife who is Romanian (EEA/EU) in June 2011 and we eventually got married in December 2011.
I applied for my Residence card in February 2012 and it was issued on December 2012.
We got divorced on December 2015 when Decree nisi was issued but divorce proceedings started in April 2015.
I have been resident in the UK since 2008 which is going to be 8 years this October 2008 and have been working since then.
My first question here is when can I apply for my Permanent residence? Is it 5 years from the time we started living together or 5 years from when we got married or 5 years from the time the residence card expires ?
My second question is that I accidentally was misguided my a friend I met at work to start claiming tax credit from August 2012 and stopped in 2014 March. I stopped claiming it when I realized I was not supposed to claim it and have set up a direct debit to pay it back since 2014. Would it have any negative effect on my permanent residence application?

I would appreciate your answer and further advice.

[noajthan]

You managed to post your question in a completely unrelated topic.

To avoid confusion & jumbled responses, I have moved your question to its own thread (this one).

[noajthan]

...

I started living together with my ex-wife who is Romanian (EEA/EU) in June 2011 and we eventually got married in December 2011.
I applied for my Residence card in February 2012 and it was issued on December 2012.
We got divorced on December 2015 when Decree nisi was issued but divorce proceedings started in April 2015.
I have been resident in the UK since 2008 which is going to be 8 years this October 2008 and have been working since then.
My first question here is when can I apply for my Permanent residence? Is it 5 years from the time we started living together or 5 years from when we got married or 5 years from the time the residence card expires ?

...

I would appreciate your answer and further advice.

You have not acquired PR yet.
If you had remained married it looks like you may have acquired PR on 5th wedding anniversary, that is on or after Dec 2016.

Have you received decree absolute yet?
If have divorced you no longer have an EEA sponsor.
If fully divorced (before Dec 2016) you will have to apply for RoR to retain a right to reside & work in UK.

[union]

Yes I am fully divorced and received Decree absolute on December 2015. Marriage lasted more than 3 years before starting divorce proceeding. Can I apply for PR after 5 years of marriage regardless of having been divorced in December 2015. If not when is the right time for me to apply for PR?

[noajthan]

Yes I am fully divorced and received Decree absolute on December 2015. Marriage lasted more than 3 years before starting divorce proceeding. Can I apply for PR after 5 years of marriage regardless of having been divorced in December 2015. If not when is the right time for me to apply for PR?

Decree nisi is not decree absolute; were both issued in Dec 2015?

You need to establish your retained right of residence in UK first as you no longer have an EEA sponsor.

Then your economic activity will determine when you actually acquire PR; (you don't apply for it, just confirmation of having acquired it).

[union]

Yes both decree nisi and Decree absolute was issued between august 2015 and December 2015. How does my economic activity guarantee when I should apply for my PR? If I have to apply for PR when will that be due? Can I skip applying for ROR and apply for PR in 2017 December when my current visa runs out?

[noajthan]

Yes both decree nisi and Decree absolute was issued between august 2015 and December 2015. How does my economic activity guarantee when I should apply for my PR? If I have to apply for PR when will that be due? Can I skip applying for ROR and apply for PR in 2017 December when my current visa runs out?

You have no legal basis to remain in UK anymore.

A RC is not a visa, its just a confirmatory document and now you're divorced its null and void.
Suggest sort that out first.

[union]

By sorting it out first do you mean I should apply for ROR or what?

[noajthan]

By sorting it out first do you mean I should apply for ROR or what?

Yes, as you are fully divorced (before anniversary, Dec 2016), my understanding is you will have to apply for RoR to retain a right to reside & work in UK.

[Richard W]

My first question here is when can I apply for my Permanent residence? Is it 5 years from the time we started living together or 5 years from when we got married or 5 years from the time the residence card expires ?

It's from when you got married, if she was exercising treaty rights then. Your unregistered partnership has never been accepted as such by the Home Office - and I suspect the clock would have started from when the residence card was issued if you had received the card on the basis of it. It's not entirely clear (to me, at least) who keeps the clock running between the initiation of divorce proceedings and decree absolute. Quite possibly, there are two clocks running during that time.

You have no legal basis to remain in UK anymore.

Nothing in Union's account indicates that. He appears to be a family member who has retained the right of residence even though he has ceased to be a family member of a qualified person or permanent resident. One does not apply for such a status; one simply has it, or not.

In particular, I don't believe the OP's employer is under any sort of obligation to dismiss or suspend him if he discovers he is divorced.

A RC is not a visa, its just a confirmatory document and now you're divorced its null and void.

I can't find its being null and void in the regulations. It appears to be fully valid, even though one issued on the basis of the retained right of residence being merely retained would be more appropriate. What's more, there's nothing in the EEA Regulations to indicate that it can be revoked for its inappropriateness. Is there some other regulation that would allow it to revoked?

Suggest sort that out first.

That's still a useful thing to do. It could be awkward to use for re-entering the UK.

[noajthan]

A RC issued on basis of marriage to an EEA sponsor is rendered meaningless by divorce.
The status it confirmed on day of issue has evaporated.
RCs do not rollover to reflect holder's next status.

My suggestion to OP (as I'm not an OISC-registered advisor) remains: sort RC on basis of ROR.

My understanding is current status is indeterminate and cannot be proven to anyone until HO have re-determined it.

Who knows when someone suddenly wants to move house, change jobs & etc, especially after life-changing divorce.

[Richard W]

A RC issued on basis of marriage to an EEA sponsor is rendered meaningless by divorce.
The status it confirmed on day of issue has evaporated.

But it hasn't! The rights that came with being a family member have been retained. Indeed, the person is still described in law as a family member - a 'family member who has retained the right of residence'. Now, retention is subject to conditions, but then so in many cases was the right held before divorce.

[Richard W]

My understanding is status is indeterminate and cannot be proven to anyone until HO have re-determined it.

Whom does it need to be proven to? An unexpired residence card should be good enough for an employer or landlord.

[noajthan]

But it hasn't! The rights that came with being a family member have been retained. Indeed, the person is still described in law as a family member - a 'family member who has retained the right of residence'. Now, retention is subject to conditions, but then so in many cases was the right held before divorce.

The same card cannot be reused when fundamental facts about the holder, and status of holder. have changed.
A RC in itself does not confer any rights that are cast in stone for forever and a day.

In this case, for example...

• Was the divorce a valid court proceeding;
  Was decree absolute issued;
  Was sponsor even in country;
  Was sponsor still exercising treaty rights up to divorce;
  Is OP a qp in own right, now exercising treaty rights fully & properly;
  Question of benefits claim/s:

etc etc

A RC issued years previously does not vouch for someone's current ROR status based on the answers to such questions.
To wave around some old RC dating from happier times would be misrepresentation.

Anyone seeking citizenship needs a confirmation of PR card;
if someone is a divorced ex-family member of EEA national then a confirmation of PR application needs evidence of ROR - this is best evidenced by a ROR RC capturing the applicant's current status.

That is, rather than vainly claiming that "some uncontactable and estranged spouse, now living elsewhere, really did divorce properly, & had had the inclination to stick around in UK long enough to sign the papers, & had been working as a qp up to that point, honest"!

So as I see it a RC is a milestone or waymarker; when status and state of the bearer changes, change the RC.

Back to OP, suggest file for ROR.

Don't bank on winging it in future critical applications (eg PR, citizenship) only to find you've inadequate documentary supporting evidence (& no way of getting more evidence, long after the divorce).

HO can & do play hardball; why give away unnecessary 'wriggle room'.

[noajthan]

Example of refusal of ROR demonstrating that acquiring ROR is not a rubber-stamp exercise:
http://www.immigrationboards.com/eea-ro ... 09251.html