Almost divorced Non-EEA wants to apply for Family Permit

[Casa]

As the other guys have pointed out, this is a hopeless situation. There is nothing legally to contend with. Non-eea dad has no rights whatsoever, thats my conclusion, with all the replies im receiving.

If non EEA could have been bothered to apply for retention of residence YEARS back when he actually disappeared abroad perhaps he'd have a leg to stand on... You HAD a right but left it for years and have lost that right as a result.

Obie, it appears that the OP was referring to this post...not yours

[Obie]

Thanks Casa, I thought the OP was referring to me, so i was wondering what is the point in me replying, if he does not want me to respond.

Ancillary relief application could be made, even though the UK court may have no jurisdiction to control any assets or property you have in South Africa.

The benefit of that application is the fact that it will induce your wife to release information about her means and what she does, and this may assist an EEA family permit application. If the court states that they have jurisdiction over divorce, they should also have jurisdiction over financial matters.

It will also help for you to make a section 10 Application.
You could also seek a contact order. Therefore, given the fact that your child was born in the UK and spent over 9 years of her life there, you may well be able to apply under the immigration rules aswell.

You

[Patrick2]

Thank you Obie...and thanx to Casa for clearing things up too.

I will need to just save up for the £250 (South Afican currency at the moment is a bit sad) for the application. Lets say the divorce is finalised, even before I apply for the family permit...will it decrease my chances then?

Obie, apologies for asking but is there any way, of contacting you directly?

[noajthan]

Its unfortunate timing; its unclear how you can organise a FP before divorce is finalised and then you won't have a Union citizen sponsor.

And as you've been out of UK for some many (3+?) years its hard to see that you have residence to retain.

[Obie]

Its unfortunate timing; its unclear how you can organise a FP before divorce is finalised and then you won't have a Union citizen sponsor.

And as you've been out of UK for some many (3+?) years its hard to see that you have residence to retain.

With the utmost respect Noajthan, i do think the second point has no bearing on whether OP can retain a right of residence in the UK.

OP had already resided in the UK for 1 year, and he can clearly pray in aid to that if her want to secure residence in the UK.

It is Open to OP to make a Section 10 Application to the Court

If OP seeks an Ancilliary relief and make a Section 10 Application, the court is unlikely to issue Decree Absolute until those application are resolved.

I am particularly troubled that if OP is not able to get to the UK, his ability to play a role in the life of his daughter may be permanently severed.

I agree with your first point. However I have difficulty in seeing any legal basis in regards to the 2nd point you raised.

[Patrick2]

Noajthan, would you be so kind as to NOT comment on my post please.

Thank you in advance.

Obie can we dicuss the issue at hand in more detail via a different form of communication, certain replies on here, is a bit upsetting to read.

[noajthan]

With the utmost respect Noajthan, i do think the second point has no bearing on whether OP can retain a right of residence in the UK.

OP had already resided in the UK for 1 year, and he can clearly pray in aid to that if her want to secure residence in the UK.

It is Open to OP to make a Section 10 Application to the Court

If OP seeks an Ancilliary relief and make a Section 10 Application, the court is unlikely to issue Decree Absolute until those application are resolved.

I am particularly troubled that if OP is not able to get to the UK, his ability to play a role in the life of his daughter may be permanently severed.

I agree with your first point. However I have difficulty in seeing any legal basis in regards to the 2nd point you raised.

Obie, it is the break of continuity of residence by an absence of over 6 (/12 in extremis) months that leads me to suspect there is no remnant of UK residence to retain.

Even if OP had previously acquired PR it would have been lost due to an absence of over 2 years.
With PR being a more substantive right than mere residence it makes me fearful for OP's right to reside.

[Obie]

But regulation 3 makes clear that it's application is confined to regulation 5 and regulations 15.

I am puzzled why you are so concerned by regulation 3.

But even if I am wrong. The OP does not need a period of a year residence to qualify for retention on the basis of access to his child, provided he can demonstrate residence on the day of his divorce, and he can show that he has a coury order granting access to his daughter. That will engage regulation 10, without the need to rely on the marriage alone.

[Patrick2]

Obie whay if i dont make it in time to be on the UK and im divorced even before i apply for a family permit?

Im in Cape Town, any request to a UK court takes a couple of weeks to get to them anyway.

[Obie]

Object to the grant of Decree Absolute, on the basis that proper arrangement has not been made for the child.

She will qualify to apply for the divorce to be made final in 6 weeks, but she will not necessarily get it in 6 week.

[noajthan]

But regulation 3 makes clear that it's application is confined to regulation 5 and regulations 15.

I am puzzled why you are so concerned by regulation 3.

But even if I am wrong. The OP does not need a period of a year residence to qualify for retention on the basis of access to his child, provided he can demonstrate residence on the day of his divorce, and he can show that he has a coury order granting access to his daughter. That will engage regulation 10, without the need to rely on the marriage alone.

I am happy to be wrong too but Reg 3, 5, 15 do not appear to be the be all and end all.
I have seen the various 6/12 months limits (from the Directive rather than transposed domestic law) applied in case law as approximate time boxes (admittedly not absolutes).
These limits are typically applied with a kind of test embodying the spirit of the Directive;
it may be paraphrased as an intent to foster/engender a future within the EU community.
So an absence from host state may be accepted if it furthers and strengthens that long-term aim.

And the expiry on PR seems absolute;
its unclear how any other EU right could outlive PR; especially as ROR is simply one avenue leading towards PR.

[Obie]

I am having difficulty understanding your point. Please assist me.

I am of the view that if op enters the UK today, he will have a right to reside on the basis of Diatta, as the competent authority has not pronounced his divorce final.

If he gets a child arrangement order which requires him to maintain access to his daughter in the UK, he will qualify for a retention of residence.

Those facts have nothing to do with what has transpired in the past in regards to whether he acquired or lost PR status.

That is my point.

Furthermore he has matried for 3 years. He has spent at least 1 year in the UK as man and wife.

The regulation does not appear to say that the one years residence must immediately precede the application for divorce.

So he may qualify on the basis of the more than 3 years of marriage.

Those are the 2 points I was seeking to make .

[noajthan]

The points are well made.

The OP has explained how he previously received a FP followed by denial of RC due to lack of supporting evidence; (presumably in slightly more favourable conditions).
This time the logistics and timeline seem more challenging. The status of the spouse is indeterminate.

My concern is the over 6 months absence (not justifiable in terms of strengthening life within EU ie qualitative elements relating to the level of integration) breaks a continuity of residence.
That suggests past residences/timings are reset rather than carried over to be used to apply for ROR in coming months (even if residence in UK is reestablished).

And absence over 2 years would end even PR so its surprising to hear past residence/timings may be utilised in the future.

It seems at odds with free movement that an estranged spouse living for years outside EU appears to have more access back into EU than, for example, a settled EU citizen who goes abroad (and in the same period of time, or less, would lose their PR).

As per Article 13 of the Citizen's Directive, the Community legislature saw only a specified number of circumstances as giving rise to a retained right of residence. Recital 15 states that family members “should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership".

It is only in respect of “such circumstances” that measures should be taken to ensure family members already residing in the territory of the host Member State retain their right of residence exclusively on a person basis.

https://tribunalsdecisions.service.gov.uk/utiac/37677

If the one year in UK for ROR is indeed regardless of absences from UK over any length of intervening time then that can only help OP.

In addition, if legal measures may be taken to stay the divorce or for access/custody then all well and good; divorce proceedings are unknown territory to me.
That's a glimmer of hope in a difficult scenario.
And I have already suggested how s.40 UK Borders Act may be utilised to help determine the estranged spouse's current status.