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CharlotteSJ
CharlotteSJ, Immigration Solicitor
Category: UK Immigration Law
Satisfied Customers: 78
Experience:  I have 6 years experience in Immigration law and I am accredited to LSC Level 2 and OISC Level 3.
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Hi ive been married for nearly 2 and a half years with a EU

Resolved Question:

Hi i've been married for nearly 2 and a half years with a EU citizen (he is Italian), and I'm Brazilian. I have my Residence card which I have since last october due to be an EEA family member. All this time I've been living in London, I have my job and I settled my life here. But we broke up 1 month ago and we want to get a divorce... My questions is, will I have the right to stay here? What are my chances to aply for a residency when I'm no longer married with him?

Thank you
Submitted: 4 years ago.
Category: UK Immigration Law
Expert:  CharlotteSJ replied 4 years ago.
Under S10(5) the EEA regulations 2006 you would have continued to have a right of residence in the UK had you satisfied the following conditions:

A person satisfies the conditions in this paragraph if—

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c) he satisfies the condition in paragraph (6); and

(d) either—

(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;

(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or

(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.

(6) The condition in this paragraph is that the person—

(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b) is the family member of a person who falls within paragraph (a).

You appear to meet all the requirements for this except for the fact that your marriage only lasted 2.5 years rather than 3 years and you have only been living in the UK together for 5 months rather than one year. Unfortunately this is going to mean that you will have no right of residence in the UK now that your marriage has ended.

If you really want to stay in the UK, you could potentially look at getting a work permit for your job (if it one that will meet the requirements of a work permit) or alternatively depending on your qualifications and experience you may be eligible for the Tier 1 programme as a highly skilled person.

I hope this answers your question in which case please Accept. If you have any further questions, please ask.
Customer: replied 4 years ago.

Hi Charlotte,

 

Thank you for your reply. I have my residence since last october, but we have been living together here since we started our relationship. I first came to London in march 2007 with my student visa and stayed until december same year. We got married in Italy in september 2007. From december 2007 until june 2008 we were together in Brazil, where I got my second visa (EEA family) then we came back to London (jun/08). This visa was valid until november 2008. From nov/08 until oct/09 I was waiting for my residence card. All this time I stood in the UK working.

 

So with this information do you think I can stay here?

Expert:  CharlotteSJ replied 4 years ago.
In that case, if you have been living together in the UK since June 2008, then the only requirement you don't satisfy is having a 3 year marriage. Generally speaking, the requirements are absolute, if you don't meet them, you don't get to stay.

As you are so close to meting them, if you want to stay here, you could try submitting a discretionary application to the Home Office on the basis of your EEA relationship and time in the UK and ask them to grant you further leave here as an EEA partner with a continued right of residence and for them to exercise discretion in your case as you are only 3 months short of meeting the marriage requirement and you have been together in a relationship akin to a marriage for 3 years.

I would advise that as this is not a straight forward application, you seek the advice and assistance of a solicitor when preparing the application as they will be able to go through the regulations in detail and also include any helpful case law in relation to the point to try and convince the Home Office to exercise discretion in your favour. Be aware that this is by no means guaranteed as you do not actually meet the requirements.

I would recommend seeking confirmation from the Home Office with regard your continued status, don't just remain here on the basis that it is close enough as this will be likely to be considered overstaying and could prejudice you in the future.

I hope this answers your question in which case please Accept. If you have any further questions, please ask.
CharlotteSJ, Immigration Solicitor
Satisfied Customers: 78
Experience: I have 6 years experience in Immigration law and I am accredited to LSC Level 2 and OISC Level 3.
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