Jump to content




Photo

Eea Ex-Spouse Exercising Treaty Rights

ILR

  • Please log in to reply
11 replies to this topic

#1 Chihiro

Chihiro

    New Member

  • New Members
  • 12 posts
  • Location:London
  • england

Posted 27 October 2012 - 07:25 PM

Good evening,

not so good news - I received the refusal letter for my EEA4 application today. Reason for refusal - not enough evidence for ex-spouse exercising treaty rights in the UK. No surprises there, however, it does not make sense to me that the HO expects me to provide such an evidence for the two years between we separated in Dez 2010 and Decree absolute 27 Feb 2012 was issued. I stated in my cover letter that my ex-spouse is not willing to provide any sort of information. Furthermore, I know and stated it as well in my application that he left the UK for good in 2011 and this is the problem: There will be records of National Insurance payments and income tax being paid till 2011 and I could request UKBA to assist me on that (http://www.freemovem...esidence-cases/ ). But I received the Decree Absolute in Feb 2012 when the ex-spouse clearly was not exercising the treaty rights any longer since 2011. Though, I must say, both of us exercised treaty rights for continuous five years but not till 2012 when Decree absolute was issued. I have been leaving in the UK for over six years, own a property, pay 40% tax, have no criminal records. All my life is here, but I'm aware that HO couldn't care less about decent people's lives.
I have the right to appeal or alternatively, I can submit a further application. Please let me know what the best move forward would be here knowing that ex-spouse was not exercising treaty rights till Decree absolute was issued in Feb 2012.
One more question: they kept my passport and I am not happy about it at all. If it all fails and I decide to leave voluntarily of course, are they going to stamp my passport? Or what happens normally and why do they have the right to keep my passport? Is it legal at all? Surely it is very unpleasant.

Any advise will be very much appreciated.





The UKBA has the power to assist, under s.40 of the UK Borders Act 2007.



#2 Gentleman of Leisure

Gentleman of Leisure

    Prefered Member

  • Global Moderators
  • 10,101 posts
  • Gender:Male
  • Location:Rio de Janeiro
  • br

Posted 27 October 2012 - 07:43 PM

Have you already received some advice and comment on your situation in a previous thread? It would be great if you were to continue in that discussion as I would (and perhaps others) would not then have to repeat any information that you have already received.

#3 Chihiro

Chihiro

    New Member

  • New Members
  • 12 posts
  • Location:London
  • england

Posted 27 October 2012 - 11:20 PM

Hi,

not quite sure what you mean with the previous thread? To answer your question - no, I haven't received any advice to my thread. Any advice would be great.

thanks,

#4 Mutly

Mutly

    Prefered Member

  • Active Members
  • 10,453 posts
  • Gender:Male
  • ad

Posted 28 October 2012 - 12:10 PM

When did he commence exercising treaty rights in the UK? Did he continue doing so until 2011 without interruption?
Do you have children together?
When and where (UK or elsewhere) did you get married? If outside the UK, how long have you yourself lived in the UK since marriage?

#5 Chihiro

Chihiro

    New Member

  • New Members
  • 12 posts
  • Location:London
  • england

Posted 28 October 2012 - 12:30 PM

When did he commence exercising treaty rights in the UK? Did he continue doing so until 2011 without interruption?
Do you have children together?
When and where (UK or elsewhere) did you get married? If outside the UK, how long have you yourself lived in the UK since marriage?


Hi Mutly,

we married in May 2000 in Ukraine and left to Germany straight after. He moved to the UK for work in 2005 and was exercising treaty rights in the UK from 2005 till 2011 with no interruption (as far as I know). Unfortunately we are not on speaking terms and I only can suspect that he was exercising treaty rights till 2011. In 2011 he left the UK for good and lives now in another country.
We do not have children. I joined him in the UK in Nov 2006, we lived here together till late 2009. From approx. beginning of 2010 we went our separate ways. In Feb 2012 we got the Decree Absolute. I have been exercising treaty rights in the UK since 2007, we were married for 10 years, three of those years in the UK. I have no evidence for him after we stopped being a couple. Here is the question: Can I appeal the HO decision on the grounds that my stranded ex-spouse did not give an access to his documents? I have a short email as proof where I asked him to provide some sort of information, to which he replied that he doesn't have any information to give. But at least it shows that I tried.
Do you think, I have a chance to win this appeal? Also, do you know if I still can apply for another visa while appealing?

Thank you!

#6 Chihiro

Chihiro

    New Member

  • New Members
  • 12 posts
  • Location:London
  • england

Posted 28 October 2012 - 12:38 PM

estranged ex-spouse, not stranded, sorry for confusion.

#7 Mutly

Mutly

    Prefered Member

  • Active Members
  • 10,453 posts
  • Gender:Male
  • ad

Posted 28 October 2012 - 01:15 PM

He moved to the UK for work in 2005 and was exercising treaty rights in the UK from 2005 till 2011 with no interruption (as far as I know).


If that is the case, he became a permanent resident on the fifth anniversary. Subsequently ceasing to exercise treaty rights would not be a problem, but him leaving the UK is a big problem for your application.

I joined him in the UK in Nov 2006


Do you know or have any way of finding out whether your former husband still lived in the UK at the fifth anniversary of that, ie. Nov 2011?

Were you studying at any point in or since 2011?
Do you have any other family members in the UK?
Had you ever lived there before Nov 2006 in any capacity?

#8 Chihiro

Chihiro

    New Member

  • New Members
  • 12 posts
  • Location:London
  • england

Posted 28 October 2012 - 01:51 PM

He moved to the UK for work in 2005 and was exercising treaty rights in the UK from 2005 till 2011 with no interruption (as far as I know).


If that is the case, he became a permanent resident on the fifth anniversary. Subsequently ceasing to exercise treaty rights would not be a problem, but him leaving the UK is a big problem for your application.

I joined him in the UK in Nov 2006


Do you know or have any way of finding out whether your former husband still lived in the UK at the fifth anniversary of that, ie. Nov 2011?

Were you studying at any point in or since 2011?
Do you have any other family members in the UK?
Had you ever lived there before Nov 2006 in any capacity?


I only know that he was traveling in 2011 quite a bit setting up his business abroad. I also know that he had a company registered in the UK in 2011. Unfortunately, I don't know if he was continuously living in the UK in 2011 and he wouldn't tell me.

I wasn't studying in the UK at any point. I finished my MA in Germany in 2006 and joined my ex-spouse in the UK straight after my graduation. I have been in full time employment since 2007.

I haven't lived in the UK before 2006 and I have no family members in the UK, but I am in a committed relationship with a British citizen for about 2 years now. Perhaps it would be a better idea to try to get a visa as an unmarried partner of British citizen instead?

I wanted to go through European path because I was hoping that if I can proof that I've been exercising treaty rights here, I'll be successful. Also,I think my lawyer did not advise me properly. The situation with ex-spouse not being in the UK after 2011 was a kind of bothering me when I first talked to my lawyer, but she was adamant that it wasn't the issue as I cannot be liable for someone who isn't my partner any longer, particularly if we are not on speaking terms. I really hope she is right.

Do you see any issues of me applying for an unmarried partner visa at this stage?

#9 Mutly

Mutly

    Prefered Member

  • Active Members
  • 10,453 posts
  • Gender:Male
  • ad

Posted 28 October 2012 - 03:45 PM

There are a few things which need to be found out, and in an appeal you'll need the assistance of an advisor. Unfortunately I can't add to the articles you linked on the free movement blog on what directions the tribunal might issue to the HO to find the information except to say that it is worth it but that you need to be prepared for refusal if it can't be found or can but the criteria are not met.

Firstly if your former husband was still resident in the UK on the fifth anniversary of your residence, ie. Nov 2011.

If yes, if your former husband worked in the UK without interruption for any five years period, he automatically became a permanent resident on the fifth anniversary and then you became a permanent resident in Nov 2011 because your right of residence only depended on him being a permanent resident residing in the UK.

Alternatively until when he continued to exercise treaty rights. You had a right of residence as long as he continued to exercise treaty rights and if that extended to Nov 2011, and his absences from the UK before that did not exceed six months in any year, then you would have become a permanent resident on that date.

Once you become a permanent resident, it doesn't matter what your husband did or where he was after that.

However if your former husband ceased being resident in the UK before you had a right of residence for five years, Nov 2011, then unfortunately all I can do is present bad news. You would have lost your right of residence when he left the UK, because it was based on him and there are no children or other EEA family members.

There is provision for a continued right of residence upon divorce, but until then (date of the decree absolute), as a spouse it depends on the EEA national.

The relevant law is Regulation 10, in particular 10(3), hence the question about whether you were studying.

See also European Casework Instructions Chapter 5 from point 5.4 especially 5.4.12 and chapter 2 point 6.

So this needs to be discussed in detail with an advisor, what you can show to indicate that you've tried to find documents, what the tribunal can oder the HO to check with other departments such as HMRC and whether the requirements were met and if they were whether it will be possible to show that. You can for eg. ask if his former UK employer will assist, although they don't have to and for data protection reasons may not. But it would be best to seek advice first. I would recommend Victoria who is currently on holidays and Skillclear and Visadirect.

It's not possible to apply for any status under the national rules from inside the UK because you need to have existing leave to remain under the national rules.
Have you been living with your British partner for two years or part of that time?

#10 Chihiro

Chihiro

    New Member

  • New Members
  • 12 posts
  • Location:London
  • england

Posted 28 October 2012 - 08:25 PM

Thank you Mutly, it's all very helpful.

I have now seen that HO did one major error: They did not consider my arrival in Nov 2006 as the start of the qualifying period. They actually stated in the refusal letter that I shall provide evidence for myself and ex-spouse for the period Jul 2007 (when my EEA2 was granted) till Feb 2012 (Decree absolute). I arrived in the UK on a joining family member visa in Nov 2006 which was valid till March 2007 and shall also be considered. Therefore, you are completely right, that the qualifying period shall be from Nov 2006 which gives me almost one more year.
In terms of finding out facts about ex-spouse, it's a very difficult one. I'll have a chat with my advisor tomorrow and will keep you posted on the progress. I think that some of my experience will be helpful for other members as well.





0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users