EEA Family Member. Retention of Permanent residence

[Onowu_Ije]

I am a non-EU who has been married to an EU national since August 2014, and I was granted an EEA family permit valid for 5 years. All this time, we have lived and worked in the UK and I have my residence permit valid till September 2019. During this time, she applied for her PR(she has been in the UK for a total of 9 years) which was granted to in December 2016.

PRESENT SITUATION

*She moved out of our apartment in October 2016. She stayed in the UK for a few months then moved back to her country(Spain). Before she left, I got a notarised copy of her PR which I needed at the time to apply for a travel visa.

MY QUESTION IS:
- She wants me to divorce her asap and I was thinking of using the - 2 years apart desertion option. Is this option feasible? We would've been living separately for 2 years by October 2018 though she is currently in Spain.
- If yes, can I apply for ROR after the divorce using the notarised copy of her PR.

I welcome all replies and suggestions.

Many thanks in advance.

[Richard W]

Unless there are children that she left with you, you lost the right to reside in the UK when your wife returned to Spain. It seems likely that you are currently working illegally.

[Obie]

What's the legal basis for that?

[Onowu_Ije]

Hi Richard,

So I loose my right of residency despite she has a permanent residence in the UK?

[Onowu_Ije]

Hi Obie,

Kindly elaborate more on your question please in other to provide you with the information you need.

Many thanks.

[Obie]

How do you propose to divorce now that you are away.

[Onowu_Ije]

I'm thinking of using the 2 years desertion option or wait till next year end of next year to apply for PR.

I'm just confuse on how to approach the situation.

[Obie]

But she is not in the jurisdictions, or dont intend to participate in the divorce proceedings. Is that not the case?

[Onowu_Ije]

She is very cooperative and happy for me to use whichever process that works out best.

[Wise]

As Richard has pointed out to you. Technically she's been out of the country since around December 2016 and to proof her presence in the UK during this period might be a difficult task for you.

Also herself will loose that PR if only she's out for complete 2 years at ago. Google EEA REGULATION 2016 and Casework instructions, read all through yourself and that point if not before then you have totally loose that RC you're holding and the only option is to start all over again as a couple or you have either qualify on a different route to live in the UK.


Divorce is not an option in a million year with this circumstances unless you sort out the row between you. If you want to stay in the UK as a non EU you will have to do something very fast.

Good luck.

[Onowu_Ije]

Thanks for your reply Wise. The plan is to divorce asap then apply for ROR using a copy her PR(which i don't need to show if she is still exercising her treaty rights).

P.S I still have a notarised copy of her PR. Will the HO accept this.

Thanks for all your help.

[Richard W]

What's the legal basis for that?

That's an interesting and relevant question. Perhaps I have it wrong. The Home Office guidance (via https://www.gov.uk/government/publicati ... nd-appeals) on the Diatta judgement (at pp.24-5), which predates the concepts of permanent residence, says

For example, if an EEA national is working in the UK and separates from their spouse but does not get a divorce, the spouse will continue to be treated as a family member for as long as:
• they remain married
• the EEA national continues to exercise treaty rights in the UK or resides in the UK with a right of permanent residence

However, the relevant part of the EEA Regulations 2016 says

A person (“P”) who is a family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a right of permanent residence under regulation 15 is entitled to remain in the United Kingdom for so long as P remains the family member of that person or EEA national.

Unless the literal interpretation has been overturned by the courts, it would seem that a family member of a holder of the right of permanent residence is covered so long as he remains a family member and the right of permanent residence continues to be held. There is no explicit requirement for the holder of the right of permanent residence to be resident in the UK!

I couldn't find anything in the directive about the right of residence of family members of EEA nationals with the right of permanent residence.

So, the OP does seem to be lawfully resident and permitted to work, both in practice and in law. When does the OP's permanent residence expire? Mere visits to the UK will restart the two-year time out, unlike the expiry rule for ILR.

[Onowu_Ije]

Thank you so much Richard.

I have done quite a lot of research too and came up similar answer to what you have just explained which kind of put my mind at rest for now. She has been out of the UK since April 2017 but she's had her PR since December 2016. I believe I would've to try and invite her before end of March 2019 to avoid breaking the 2 years rule.

So back to my original question:

MY QUESTION IS:
- She wants me to divorce her asap and I was thinking of using the - 2 years apart desertion option. Is this option feasible? We would've been living separately for 2 years by October 2018 though she is currently in Spain.
- If yes, can I apply for ROR after the divorce using the notarised copy of her PR.

Once again, thank you so much for all your help.

[Wise]

Base on that specific date you have provided that she left and she wants you to divorce her asap. Presently in the UK divorce procedures do take at least 4 months to complete depends where you are in country.

To your question. In order to use 2 yrs desertion, you may double check with local authorities and other option is to start the divorce proceeding afresh and you will need her home address in UK where she can receive your divorce petition and sign it before posting it back to them but I think it will be twice b4 everything will be completed.

Most importantly, take note of what Richard said about her mere VISIT TO UK and keep the travelling ticket record in case you may need it as a proof with HO.

As to regards using the PR photocopy for ROR. The HO may expect the original but you just have to explan your situation (divorced) you can't get it and if you need to appeal because of that am sure you will suceed. Also you may need some of her treaty right before she got her PR too.

[Richard W]

To your question. In order to use 2 yrs desertion, you may double check with local authorities and other option is to start the divorce proceeding afresh and you will need her home address in UK where she can receive your divorce petition and sign it before posting it back to them but I think it will be twice b4 everything will be completed.

We don't actually know which country the OP lives in.

I know that it used to be possible for someone living in Scotland to initiate a divorce from someone living in England, so it isn't obvious to me that he can't divorce his wife using her true address. The only issue is that the primary objective is to secure a divorce in Spanish law; obtaining a divorce recognised in the UK is of secondary importance.

Divorce law is not a stable area of law; the OP may need to seek advice on the mechanics of divorce elsewhere.

[Onowu_Ije]

Hi Wise,

She has provided me with her home address. In terms of her coming to the UK i don't think that would happen. In terms of her PR and needing her treaty rights before she got her PR, she was a student in the UK for 7 Years.
I might go see a solicitor if things beginning to look complicated.

Thank you so much

[Onowu_Ije]

Hi Richard,

I'm in the UK and the plan is to initiate the divorce here, which she is willing to sign asap.

I might see a solicitor at some point before I initiate the divorce process.

Many thanks.

[Obie]

Which part of the UK jurisdiction do you reside as England and Wales have different system to Northern Ireland.

[Onowu_Ije]

Hi Obie,

I’m in Kent.

[Obie]

You are in England and Wales Jurisdiction.

[Onowu_Ije]

Thanks.

I'm thinking of applying in London. What is the easiest and most common ground for divorce.

Many thanks for all your help.

[Obie]

Divorce is a personal thing to you and beside i will not give divorce advise on an immigration forum.

[Onowu_Ije]

Totally understand. Thanks for your help