Retained Rights Refused After EEA Spouse left UK

[Oluwafemi]

I got married to my EEA Spouse in June 2014 in Paris, we had our son in France in September 2014.

I went back to Nigeria and applied for EEA Family visa, my wife and son arrived in London October 2014 and I arrived London in October 2014.

We both lived together, my work started working after 5 months and I started working after 6 months. We lived together until November 2015 when I moved out of our family home. We lived together in London for 13 months during which I was a victim of domestic violence, the police came to our house several times and took my wife away.

After separation, I was finding it difficult to see our son, harassment continued and the police cautioned my wife 2 times. May 2016 I went to court asking for a contact order to see our son, my wife received the court papers and fled the UK with our son. She wrote to the Home office to revoke my stay, making false claims that I was the one abusing her, she abandoned her job cos she was working until the day she left, I provided evidence with her payslips which came to the house

December 2016 the French court ordered her to return my son to UK, January 2017 we went back to UK court and I was granted custody of her son. So my wife lives in France while I live in the UK with our 3 year old son.

I applied for a retain right based on domestic violence and having custody of our son in June 2017, note I have been working since 2015 and self sufficient, taking care of my son.

The Home Office has rejected my application and that of my son who has a French passport claiming I am not divorced yet and my son has no right to stay.The Home Office confirmed that the police reports confirm I was a victim of domestic violence.

Quote

Your application was has been considered under under regulation 10 of Immigration Regulations 2016

* You have not provided adequate evidence that marriage has been terminated by a divorce

* You have not provided adequate evidence that your EEA spouse was a qualified person or had permanent right of residence on the date of termination of of the marriage or civil partnership.

I have been given right of appeal..

Note I have started my divorce in June 2017

[Obie]

Is the lady in UK and exercising treaty right. If she is not, you will be refused again.

[Oluwafemi]

No, she has gone to live in France. So what should I do? I have sole custody of my son, I have enrolled him in nursery already

[Oluwafemi]

Does this case law apply to me https://www.freemovement.org.uk/cjeu-ju ... a-c-11515/

[Obie]

Precisely.

Well you seem to be doing a great deal of research.

[Oluwafemi]

I have no choice, can't afford to pay solicitors without making sure they are doing the right thing.

I have decided to appeal based on my son is now in the state nursery school, there are 2 judgments from French and Uk court granting me custody, wife does not support financially and I am the sole provider for our son.

The UK judgment is very clear that I must reside in the UK with our son as I can't return to France where I have no status. Also I can't apply to go to France as the French embassy says I have to change my status

[secret.simon]

Obie, would this Zambrano-like right of residence lead to PR in five years or would the OP have to go for ILR after 10 years Long Residence?

[Obie]

Obie, would this Zambrano-like right of residence lead to PR in five years or would the OP have to go for ILR after 10 years Long Residence?

This does not seem like a Zambrano case, it is more like a Chen case. It does not lead to PR under EU law, but may well do in regards to Long residence.

[Oluwafemi]

Hi Obie,

Update on my case and I need your opinion, I appealed and was given a tribunal date for June 3, my wife has returned to live in the UK since May 1.

She has written to me about having shared custody and provided evidence she is looking for a job.

My divorce is still pending as she avoided being served.

My solictor is saying we go to court on June 3, tell the court she is back in country and I still want my retained rights, especially when the Home Office has confirmed in its refusal note that there was domestic violence and I was the victim.

There is an existing Non molestation order against wife, what do you think?

My rescidence card is still valid till 2020, I have been travelling in and out of UK

[Obie]

That lawyer does not seem to know what he is doing. It will all end in failure. No retained rights without a divorce under regulation 10(5), even if you were a victim of domestic violence.

Difficult to see you meeting regulation 10(4), as I doubt your child will meet regulation 10(3), giving the fact he is in Nursery.

[Oluwafemi]

So what do you suggest we do?

I am still married, she is back in the country and resident. She has sent me a letter confirming she is looking for a job and wants shared custody.

My recidence card expires 2020, I hope to sort my divorce out by end of the year.

Should we be going to the tribunal or writing to the home office that she is now resident in the UK. She is exercising her EU rights and looking for a job.

[sandy1988]

i have seen your history you are struggling but home office even not breaking eu law even human rights as well best thing go to your mp tell him your case take your child school documents and tell him you have custody of child too and his letter will definetly help you ...

[Oluwafemi]

Hi Obie,

So I have written to the Home office about my current situation, wife is back in the country and working. She has sent me details of her house contract and bills to confirm this but wont release her passport.

I have withdrawn the apeal at the tribunal as well, my letter to the Home Office and Tribunal is that since wife has returned to the UK and we are not divorced, I still have custody of our son, I have no reasons to pursue this appeal due to change in circumstances as I am now a family member of a EEA job seeker in line with regulation 6 and 7 of the Immigration (European Economic Area) Regulations 2016.


Though I dont have a response from the Home Office yet,, my question is d I need to apply for another rescidence card, the previous one I have expires 2021, with the whole Bexit thing going on.

That lawyer does not seem to know what he is doing. It will all end in failure. No retained rights without a divorce under regulation 10(5), even if you were a victim of domestic violence.

Difficult to see you meeting regulation 10(4), as I doubt your child will meet regulation 10(3), giving the fact he is in Nursery.

[secret.simon]

What is the status of your divorce proceedings? How long has the gap been between your wife leaving the UK and returning? Had she already acquired PR in the UK before she had left?

[Oluwafemi]

She refused to respnd to the divorce, she actually does not want a divorce. So it is still atthe application stage without the respondent responding.

She was away for 2 years, she carries 2 nationalties, Irish and French, she has no intention of applying for PR ever cos of her Irish passport.

What is the status of your divorce proceedings? How long has the gap been between your wife leaving the UK and returning? Had she already acquired PR in the UK before she had left?

[secret.simon]

she has no intention of applying for PR ever cos of her Irish passport.

Has she exercised treaty rights (worked, sought work, studied with private health insurance or been self-sufficient with private health insurance) for five continuous years before she left the UK?

If she has been away for two years, that likely means that your PR clock has been reset to zero and will start afresh when she resumes exercising treaty rights in the UK.

[Oluwafemi]

No she has not lived here for 5 years, honestly I dont care about what she does with her life.

Yes she is excercising her treaty again, my question is this, should I apply for a new PR card cos the one I have will expire in 2020 or continue using it until 2020

she has no intention of applying for PR ever cos of her Irish passport.

Has she exercised treaty rights (worked, sought work, studied with private health insurance or been self-sufficient with private health insurance) for five continuous years before she left the UK?

If she has been away for two years, that likely means that your PR clock has been reset to zero and will start afresh when she resumes exercising treaty rights in the UK.

[Richard W]

No she has not lived here for 5 years, honestly I dont care about what she does with her life.

You should care, because your rights in the UK are likely to derive from her rights in the UK.

Yes she is excercising her treaty again, my question is this, should I apply for a new PR card cos the one I have will expire in 2020 or continue using it until 2020

You are probably better off keeping the old RC (you do not have a PRC) and then applying for "pre-settled status" before it expires.