Non eea4 Urgent please!!

[Dapson]

Very big thanks to all the gurus here for all your good effort
Hers is my situation .. Please kindly help me with what
I need to do..
I am a non EE marry to an eea member that has been in Uk since 2004 and working in Uk we got married in 2010 Dec
And applied for my residence card on July 2011 and got it
On October 2011 now things not going smoothly and we filed in a divorce on Feb 2016, in which I have gotten decree nisi on March
Am about to apply for decree absolute on June 15
2016 .. Here's is my big question can I still apply for RoR after I have gotten decree absolute or I should wait til oct to apply for permanent residence since it's just 3months away or i shld delaye the decree absolute till few weeks to my permanent resident submition since it's takes 10-15 days to receive it because I think we have never divorce till we obtain a decree absolute am working till present and my ex just start stop working and start self employed last year April which is active, please I need a help on this

[noajthan]

Very big thanks to all the gurus here for all your good effort
Hers is my situation .. Please kindly help me with what
I need to do..
I am a non EE marry to an eea member that has been in Uk since 2004 and working in Uk we got married in 2010 Dec
And applied for my residence card on July 2011 and got it
On October 2011 now things not going smoothly and we filed in a divorce on Feb 2016, in which I have gotten decree nisi on March
Am about to apply for decree absolute on June 15
2016 .. Here's is my big question can I still apply for RoR after I have gotten decree absolute or I should wait til oct to apply for permanent residence since it's just 3months away or i shld delaye the decree absolute till few weeks to my permanent resident submition since it's takes 10-15 days to receive it because I think we have never divorce till we obtain a decree absolute am working till present and my ex just start stop working and start self employed last year April which is active, please I need a help on this

When did you arrive in UK?
Was it spouse who arrived in UK in 2004?

Is spouse an A8 national?
Has spouse been exercising treaty rights continuously since you married (2010)?

Has spouse been a student in UK (since 2010)?

Has either party enjoyed any prolonged absences from UK since 2010?

Have you got good documentary supporting evidence of all timelines and activities since 2010?
Suggest collecting it together now.
(Note: as a dependent your activity is immaterial)

If answers to the above are favourable then its likely you may have already acquired PR automatically (in or after Dec 2015).
If so, why not apply for confirmation of PR directly?!
(Note: co-habitation is not mandatory, even for a married couple, under EU law).

[Dapson]

Thanks so much noajthan
I arrived in UK 2008 and my ex spouse has been in uk since 2004 and she's from Netherlands and she's been working since then till April 2015 when she start self employed as sole trader on hairdressing working from home , that's when we thought we gonna separate ,have got all her p60 from 2010. -2015 ,hmrc letter of tax code on her name gas bill on her name mobile phone bill on hers and joint council tax on both names from 2014 and some other bills,I think what I would need is the nic contribution and tax paid from self employed from April 2015/16 and till decree absolute is issue which is due from 15th of this month June ,I have not really have prolong absent in uk, more than 2 weeks and that is 2 times for the whole years and she don't really travel unless she just go for weekend in her home town and she don't spend more that 3 days bcs of work ,so can I apply for RoR or wait till October when my residence card will finished and apply for PR directly and does it need to tell HO abt change of circumstances .. Please your reply is needed .. Thanks a lot

[noajthan]

Thanks so much noajthan
I arrived in UK 2008 and my ex spouse has been in uk since 2004 and she's from Netherlands and she's been working since then till April 2015 when she start self employed as sole trader on hairdressing working from home , that's when we thought we gonna separate ,have got all her p60 from 2010. -2015 ,hmrc letter of tax code on her name gas bill on her name mobile phone bill on hers and joint council tax on both names from 2014 and some other bills,I think what I would need is the nic contribution and tax paid from self employed from April 2015/16 and till decree absolute is issue which is due from 15th of this month June ,I have not really have prolong absent in uk, more than 2 weeks and that is 2 times for the whole years and she don't really travel unless she just go for weekend in her home town and she don't spend more that 3 days bcs of work ,so can I apply for RoR or wait till October when my residence card will finished and apply for PR directly and does it need to tell HO abt change of circumstances .. Please your reply is needed .. Thanks a lot

Spouse not an A8 national so no WRS worries.
And not a student either so no CSI worries.
All such absences as mentioned are all within limits.

It appears you have acquired PR already, on your 5th wedding anniversary; (Dec 2015).
Suggest simply applying for confirmation of it. (So no need to worry about ROR at this stage).

Suggest delaying the finalisation of divorce to make sure you can get this PR application filed and processed.

It sounds like you have the right sort of evidence. Just doublecheck with the guidance.

[Dapson]

Thanks so much noajthan really appreciate.
Please one more question please.. In 2014 Me and my wife during Our getting child tax credit and child benefit on the my causin child that live with us,the child tax credit was on joint with my wife while child benefit was on my name , before we got i asked from hrmc that the child is not mine and they said i can claim for the child that is not mine if am responsible for them ... But immediately I start the divorce on February I called them on March to stop it... Hope this won't be a problem.. Please reply thanks so much

[noajthan]

Thanks so much noajthan really appreciate.
Please one more question please.. In 2014 Me and my wife during Our getting child tax credit and child benefit on the my causin child that live with us,the child tax credit was on joint with my wife while child benefit was on my name , before we got i asked from hrmc that the child is not mine and they said i can claim for the child that is not mine if am responsible for them ... But immediately I start the divorce on February I called them on March to stop it... Hope this won't be a problem.. Please reply thanks so much

Not sure on the benefits side.
- let other members respond.
Stand by.

[Dapson]

Thanks noajthan .. Please anybody who knew abt this last post shld pls shed a light please .. It's urgent .Thanks

[Obie]

Well I think you qualified since December 2015 for PR.

But you will need to demonstrate treaty rights has been exerciser by your wife through out the period of your marriage or she had acquired PR.

Cohabitation is not strictly required, but albeit wrongly, I have been seeing refusal on that basis lately.

[Casa]

I believe you're concerned about the benefit claim. My understanding is that family members of EEA nationals don't have recourse to Public funds. This would mean that you were not entitled to claim child benefit for your cousin's child, in your name. If so, the benefits may have to be repaid.

[Dapson]

Thanks so much @obie and casa..
@obie she dnt have PR but she's been working since 2004 till 2015 and started self employed on May 2015 as sole trader on hairdressing working from home ,
@casa I thought it's only child tax credit I can collect in joint while u are couple and child benefit can be collect individually , since it's say nothing like no recourse to public fund in residence card , and before I start collecting it , I rang them up and they said i can.. But do I have to ring them back again and ask details and if possible I can pay back if it's not something I can get ....please your reply is important .thanks

[Casa]

You need to check whether you are entitled to claim Public funds in your name.

[ill_gremlinx]

Thanks so much @obie and casa..
@obie she dnt have PR but she's been working since 2004 till 2015 and started self employed on May 2015 as sole trader on hairdressing working from home ,
@casa I thought it's only child tax credit I can collect in joint while u are couple and child benefit can be collect individually , since it's say nothing like no recourse to public fund in residence card , and before I start collecting it , I rang them up and they said i can.. But do I have to ring them back again and ask details and if possible I can pay back if it's not something I can get ....please your reply is important .thanks

check this link here:
http://www.immigrationboards.com/claimi ... 31844.html
from what i gathered from that topic there shouldn't be any problem if you were the one claiming CB.

[fatimahh]

[quote="Dapson"]Thanks so much @obie and casa..
@obie she dnt have PR but she's been working since 2004 till 2015 and started self employed on May 2015 as sole trader on hairdressing working from home ,
@casa I thought it's only child tax credit I can collect in joint while u are couple and child benefit can be collect individually , since it's say nothing like no recourse to public fund in residence card , and before I start collecting it , I rang them up and they said i can.. But do I have to ring them back again and ask details and if possible I can pay back if it's not something I can get ....please your reply is important .thanks[/quote]


You may also find good information from this link: http://www.maternityaction.org.uk/advic ... a8-and-a2/
&
http://www.cpag.org.uk/content/right-re ... nant-pause

it was published by noajthan on the benefit section of the forum.

[fatimahh]

sorry for some reason the link does not give the exact page. see here the pdf http://www.maternityaction.org.uk/wp-co ... 2016-2.pdf

[Dapson]

@fatimahh ... Thanks so much .. I have read it and understand ..just a little bit confused..On those benefit stuffs

[fatimahh]

[quote="Dapson"]@fatimahh ... Thanks so much .. I have read it and understand ..just a little bit confused..On those benefit stuffs[/quote]

Believe me you are not the only. I am in the same shoes, family member of EeA, claimed benefit and now confusevas some people said you can others you can't! UK border said "you must not be a burden" but when are you considered a burden???

[Dapson]

@fatimahh .. To nbe honest my own knowledge is u must claim child tax credit as a couple but child benefit can only be be
Claim by one person in which I think it's fine to get since its
Not says no recourse to public fund on resident card,
I think people with more experience shld help us on this matter ....

[noajthan]

@fatimahh .. To nbe honest my own knowledge is u must claim child tax credit as a couple but child benefit can only be be
Claim by one person in which I think it's fine to get since its
Not says no recourse to public fund on resident card,
I think people with more experience shld help us on this matter ....

The question comes down to whether the claimant has a right to reside in UK.

... for Child Benefit and Child Tax Credit, the Habitual Residence Test does not apply; instead, a person who does not have a right to reside is treated as not being in Great Britain and is ineligible for benefit on those grounds

https://www.google.co.uk/url?sa=t&rct=j ... Q29z5ZBBgA

Note the health warning in the document: it may not be the latest word on his matter; but it is a Parliamentary briefing document so it is(/was) straight from the horse's mouth if you will.

More recent Parliamentary briefing doc:
https://www.google.co.uk/url?sa=t&rct=j ... hhif0rzEMg

HO guidance which digs into these vital matters:
https://www.gov.uk/government/uploads/s ... or_gds.pdf
- note the examples of various scenarios that either qualify or do not qualify for benefits

[Dapson]

Thanks @noajthan... I think it's getting clearer now ,this what I got from govt uk ...
A person has a ‘right to reside’ if, for example, they are looking for work, are self-employed, a jobseeker, a student or have sufficient resources for themselves and their family members not to become a burden on the social assistance system.
The right to reside element of the test ensures that economically inactive migrants aren’t entitled to benefits.

So with this right of reside is the person that is working and
The work is effective to claim those benefits ... I think I shld
Be fine since I have a right to reside as an eea spouse in which
We are both working ...thou I stopped the benefits when I started the divorce ..I think it wnt have problem on it when apply for PR...

[Casa]

Why didn't your EEA spouse (who was exercising their Treaty rights) make the claim for child benefit in their name?

[Dapson]

Thanks @casa...we made the child tax credit as a couple
But since it says that the child benefit can be collected by single person that's why I put in on my name ..and I have never applied for anything just only those 2 and I ask dem at DWP before I applied and they said it's fine..until am seeing some post here that says it fine and other saying not .... I hope for the best.. Any one shld just please shed some light on this of his/her experience on person that can get child benefit

[noajthan]

Thanks @noajthan... I think it's getting clearer now ,this what I got from govt uk ...
A person has a ‘right to reside’ if, for example, they are looking for work, are self-employed, a jobseeker, a student or have sufficient resources for themselves and their family members not to become a burden on the social assistance system.
The right to reside element of the test ensures that economically inactive migrants aren’t entitled to benefits.

So with this right of reside is the person that is working and
The work is effective to claim those benefits ... I think I shld
Be fine since I have a right to reside as an eea spouse in which
We are both working ...thou I stopped the benefits when I started the divorce ..I think it wnt have problem on it when apply for PR...

For EEA nationals (& their dependents) the other aspect to keep in mind is the clause about not becoming a burden on the social assistance system of the country. (This comes from EU law).

You can dig into these questions here:
https://www.google.co.uk/url?sa=t&rct=j ... YA&cad=rja

&
http://europeanlawblog.eu/?p=2913

(Health warning: very informative articles & analysis but heavy going).

[Casa]

@noajthan My hesitance has been over whether a non-EEA family member without PR has recourse to Public funds...in this case child benefit.

[noajthan]

@noajthan My hesitance has been over whether a non-EEA family member without PR has recourse to Public funds...in this case child benefit.

Yes, noted Casa.

The original briefing docs linked above (previously) seem to intimate that a family member also has a right to reside;
ie vicariously from their sponsor and also in the context of claiming benefits (so not just in the EU context).

Then its a question of degree and not falling foul of the burden on the state-criteria for those who wish to acquire PR.

[Casa]

@noajthan My hesitance has been over whether a non-EEA family member without PR has recourse to Public funds...in this case child benefit.

Yes, noted Casa.

The original briefing docs linked above (previously) seem to intimate that a family member also has a right to reside;
ie vicariously from their sponsor and also in the context of claiming benefits (so not just in the EU context).

Then its a question of degree and not falling foul of the burden on the state-criteria for those who wish to acquire PR.

Thanks for clarifying.