Apply retaining right of resident..need help!!

[Jennybills]

Hi everyone, I’m Non-EEA live in the Uk and on the process divorce my EEA husband Oct2017, will get divorce absolute on Apr2018. We’ve lived together 3.5 years.I’ve hold resident of EEA family member 5 years and will be expired on Mar2019. I’m self-employed. My questions are....
1. When I apply ror after get divorce absolute.
Do I need to sent passport and payslip of my husband to HO? As my husband said he won’t support these document for me.
2. Can I skip ror process and apply PR instead?
Because my timeframe to get ror will be very close to the due to apply PR.

[Hstepper07]

[quote=Jennybills post_id=1547987 time=1507929697 user_id=181206]
Hi everyone, I’m Non-EEA live in the Uk and on the process divorce my EEA husband Oct2017, will get divorce absolute on Apr2018. We’ve lived together 3.5 years.I’ve hold resident of EEA family member 5 years and will be expired on Mar2019. I’m self-employed. My questions are....
1. When I apply ror after get divorce absolute.
Do I need to sent passport and payslip of my husband to HO? As my husband said he won’t support these document for me.

Yes. Passport or ID. Payslip will do. You will need to show that he was exercising treaty at time your divorce was made absolute, been married for 3 yrs before legal proceeding for divorce was initiated and lived in the UK for 1 yr within this period. And you should also exercise treaty following your divorce for the rest of the qualifying period as the EEA national would. Try and work it out so that he can support you with his documents.

2. Can I skip ror process and apply PR instead?
Because my timeframe to get ror will be very close to the due to apply PR.

No you cannot. You have to apply to retain your right if not, your PR will be refused. Even if you wait for 5 years, either way, you will need to provide original passport or ID of your EEA family member

[Richard W]

2. Can I skip ror process and apply PR instead?
Because my timeframe to get ror will be very close to the due to apply PR.

No you cannot. You have to apply to retain your right if not, your PR will be refused.

Have you any evidence for this assertion? The right of residence is retained, subject to doing the equivalent of exercising treaty rights, until permanent residence is achieved regardless of whether an application is made to the Home Office. Moreover, except for extended family members who have not yet achieved permanent residence, one applies for a residence card or a certificate, not a right of residence. One either has the right or does not; the government does not, except in unusual circumstances, grant the right.

Even if you wait for 5 years, either way, you will need to provide original passport or ID of your EEA family member.

Regulation 42 seems to offer a way round this.

[Jennybills]

Thank you very much for your information.
I’ll try to contact my husband to get ror done.

One more question, when I apply PR after get ror. Do I still need to provide evidence of my ex-husband? Like passport or payslip. It look like he cannot wait for me because he has to travel aboard.

[Hstepper07]

2. Can I skip ror process and apply PR instead?
Because my timeframe to get ror will be very close to the due to apply PR.

No you cannot. You have to apply to retain your right if not, your PR will be refused.

Have you any evidence for this assertion? The right of residence is retained, subject to doing the equivalent of exercising treaty rights, until permanent residence is achieved regardless of whether an application is made to the Home Office. Moreover, except for extended family members who have not yet achieved permanent residence, one applies for a residence card or a certificate, not a right of residence. One either has the right or does not; the government does not, except in unusual circumstances, grant the right.

Hi Richard,
See FOI response from HO even though it is not clearly stated in the guidance that you must apply

Thank you for your email.

The letter that was issued with your previous permission stated:

At present your only claim to remain in the United Kingdom is as the family member of a European Economic Area (EEA) national who is exercising Treaty rights here. If your family member decides to leave the United Kingdom, or ceases to exercise Treaty rights, or if you cease to be a family member, you would have to qualify to remain in the United Kingdom in your own right.

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

Therefore you should have applied for permission as soon as the divorce was completed. As you didn't then you have not had permission to be here since the divorce, therefore you cannot count that time towards permanent residency.

You will need to apply for retained rights and see if this can be granted. I cannot pre-asses an application.

Yours sincerely ,

Accredited to the Customer Service Excellence standard

Even if you wait for 5 years, either way, you will need to provide original passport or ID of your EEA family member.

Regulation 42 seems to offer a way round this.

You must provide this in the 1st instance and will be refused for not providing EEA ID. You will be required to proof that you could not provide these under exceptional circumstances.(herein lies the problem- each case will be considered on its own merit. Convincing the caseworker. As this is a recent change in regulation, we will have to wait for ppl to share their experience .

[Richard W]

See FOI response from HO even though it is not clearly stated in the guidance that you must apply

Thank you for your email.

The letter that was issued with your previous permission stated:

At present your only claim to remain in the United Kingdom is as the family member of a European Economic Area (EEA) national who is exercising Treaty rights here. If your family member decides to leave the United Kingdom, or ceases to exercise Treaty rights, or if you cease to be a family member, you would have to qualify to remain in the United Kingdom in your own right.

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

Therefore you should have applied for permission as soon as the divorce was completed. As you didn't then you have not had permission to be here since the divorce, therefore you cannot count that time towards permanent residency.

You will need to apply for retained rights and see if this can be granted. I cannot pre-asses an application.

Yours sincerely ,[/color]

Accredited to the Customer Service Excellence standard

That reply appears to be taken from a response to a Mr Iwaloye, and is dated 30 June 2015. Note the totally incorrect use of the word 'permission'. Except where extended family members are concerned, the freedom of movement law is about rights and documents confirming them, not about permissions. The officer replying had fundamentally failed to understand that point.

A superficially similar response can be found in a reply to an Andres dated 8 March 2016. That letter concedes that a right of residence may be retained.

The point has been made by a lawyer on this forum that the specially composed answers to FoI questions are not a great deal more reliable than those from the Home Office help lines.

[Hstepper07]

Hi Richard are you then saying that non eea nationals do not have to inform home office about the change in circumstance of their EEA family member and confirm their retained right of residence?

[Richard W]

Hi Richard are you then saying that non eea nationals do not have to inform home office about the change in circumstance of their EEA family member and confirm their retained right of residence?

I can see nothing in the regulations that imposes such a requirement or allows the secretary of state to impose such a requirement. The most relevant part of the regulations I can find is

(5) An immigration officer may, at the time of a person’s arrival in the United Kingdom—

(a)revoke that person’s residence card if the person is not at that time the family member of a qualified person or of an EEA national who has a right of permanent residence under regulation 15, a family member who has retained a right of residence or a person with a right of permanent residence under regulation 15;

Note that this does not apply if one has been divorced but has retained the right of residence, and only applies on arrival.