Switching to ILR from EEA RC

[trubar312]

I am a non-EEA husband to an EEA lady.

I applied for an EEA2 permit from a student visa, after marrying my wife in May 2014. The EEA permit was granted in July 2015.

The relationship with my wife has now broken down a few months after our third wedding anniversary, and I am in the process of submitting a divorce application.

She moved back to her country in August 2017 and moved on to a new relationship. She doesn't intend to come back to the UK to the best of my knowledge, but we're still in touch.

I am aware that she was exercising her treaty rights while she was here, as she was both in school and working.

I have also been in full time employment since November 2014.
___

Now, I was first granted an entry into UK in January 2008, as a student. I have now been in the country for 10 years via various different visas: Student visas, Post Study Work visas and the current EEA2 permit.

I'll like to move away from the current situation asap.

My questions are:

1. I believe one of my options is to apply for an Indefinite leave to remain, as I have been here for 10 years. However, my only worry is that I would need to prove that she was exercising her treaty rights up until when I make my application. And I cant do that as she has been away for months..

What are my options for this route?

2. My other option I think, is to apply for retained right of residence first. I believe I have to be divorced first to apply for that though. And the divorce takes up to 6 months. I'll also get into the same dilemma as above where I have to prove that she's been exercising treaty rights up until the point that the divorce was granted (not applied for!).

Am I right in this assumption?

[vinny]

1. Correct.
2. Correct. Seek an Amos direction (3).

[trubar312]

1. Correct.
2. Correct. Seek an Amos direction (3).

Thanks Vinny for the quick reply.

Would it be a good idea to apply straight away for the ILR, even though I cant prove that the wife was exercising her treaty rights for the last few months?
I'm worried that if I apply and it is denied, my EEA RC will be revoked, rendering me illegal in the eyes of the Home Office. Seems like too much to stake?

Conversely, will I be safer to wait till the decree absolute is issued, then apply for ROR, relying on the Amos direction.. (i.e. no need to prove the EEA partner exercising treaty rights), then applying for ILR straight after?

My only issue is proving the treaty rights for the last few months, and these rules are so damn complicated!

[Obie]

1. Correct.
2. Correct. Seek an Amos direction (3).

Vinny please note the case of Kuldip Singh..

OP's spouse departed the UK since last Summer, with no intention of returning. He ought to thread carefully.

[trubar312]

Thanks Obie for pointing out the Kuldip Singh case.

Looking at that case, It would seem that It's left to the applicant to prove that the union spouse was exercising treaty rights up to the point that the divorce documents were submitted.

She had registered a company before leaving to UK. In fact, she had left to take care of her sick mother and the relationship broke down at that point. She intended to run the business full time when she comes back but decided against coming back as a result of the break down in relationship.

If I can provide the documents for the company she registered (which is still in operations), would that be enough to prove she was exercising treaty rights?

[vinny]

1. Correct.
2. Correct. Seek an Amos direction (3).

Vinny please note the case of Kuldip Singh..

OP's spouse departed the UK since last Summer, with no intention of returning. He ought to thread carefully.

Thank you, Obie. Very important point. I had neglected to note that the EEA national had departed the UK before any divorce proceedings and not returning. His EEA rights left with her.

[trubar312]

Hey guys, what would you suggest I do? What are my options at the moment?

[trubar312]

How would the home office know she does not reside in the country anymore?

I can convince her to come back (albeit for a quick visit).

Even if they find out when she left the country, how do they decide that she has left for good?

[Obie]

It is easy to figure if a person left temporarily or permanently.

[vinny]

Unfortunately, there is also the requirement of her being a qualified person or a person with a right of permanent residence up until the divorce.

[trubar312]

It is easy to figure if a person left temporarily or permanently.

Can you shed more light on this please? How does this work?