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Ask A. Valcke Your Own Question
A. Valcke
A. Valcke, Solicitor
Category: UK Immigration Law
Satisfied Customers: 740
Experience:  14+ years of experience // LL.B., Maîtrise en Droit, Masters in EU Law, Pg.Dip.L.P.
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Age 33 Claimed Asylum in UK. 2002 Asylum refused and Appeal

Customer Question

Age 33
Claimed Asylum in UK. 2002
Asylum refused and Appeal exhausted in 2005
Married to EU National on 10th January 2007.
Wife moved to Uk from Germany May 2007, Started job in June 2007
I applied for residence card on 27 July 2007, Wife granted residence card. Home office wanted more information about our marriage/Nikah as it took place in Pakistan in our absence.
Residence card refused Nove 2009 as home office requested for wifes proof excercising treaty rights.
Appealed against the decision and appeal was accepted in June 2010.
Residence card granted for 5 years by home office in March 2011.
We are now seperated and marriage seems to have broken I would like to know what options do i have to settle in U.K as wife is threatening to inform home office and get me deported to PAkistan.

Some points: we have 2 1/2 years old daughter (born in April 2009)
I have been working full time since August 2007, I have been supporting my family since our marriage.

What are my options
Submitted: 4 years ago.
Category: UK Immigration Law
Expert:  Andrew replied 4 years ago.

Andrew :

If your marriage were to terminate, you could apply for a retained right of residence. Alternatively, you could apply for a right of residence derived from your daughter if she has German nationality. I would advise you to seek legal advice. There is also much information on the Home Office website:

Andrew :

http://www.ind.homeoffice.gov.uk/

Andrew :

Please click accept if this has been helpful

Andrew :

Another option would be to apply for discretionary leave on the basis of your article 8 ECHR family life

Expert:  Andrew replied 4 years ago.
Andrew : If your marriage were to terminate, you could apply for a retained right of residence. Alternatively, you could apply for a right of residence derived from your daughter if she has German nationality. I would advise you to seek legal advice. There is also much information on the Home Office website:Andrew :

http://www.ind.homeoffice.gov.uk/


Andrew :Please click accept if this has been helpfulAndrew :

Another option would be to apply for discretionary leave on the basis of your article 8 ECHR family life

 

Customer: replied 3 years ago.
Relist: Incomplete answer.
Expert:  A. Valcke replied 3 years ago.
Hello,


Do you still require an answer to your question?


I look forward to your answer.

Customer: replied 3 years ago.
Yes
Expert:  A. Valcke replied 3 years ago.
Thank you for confirming.


I understand that you have been married since January 2007 and that you lived with your wife in the UK since then. You have now separated.


You should know that under EU law you retain your right to residence in the UK even if you are separated from your wife, provided that your wife remains in the UK.


Once you have obtained a divorce, under EU law, as a former non-EU spouse of an EU citizen who was exercising her rights to free movement, you have a right to remain in the UK because you have been married for more than 3 years and you lived in the UK for more than a year.


You would also have a right to remain in the UK if you were granted parental responsibility over your daughter by a court or by agreement with your spouse.


At this stage, you do not need to do anything, but you should consider starting divorce proceedings. You may also want to see if you can get your wife to agree to a parental responsibility agreement that sets out your right to access to your daughter.


Once you are divorced, you would need to contact the Home Office with a copy of your divorce order. You will need to prove that your wife was living as a self-sufficient person prior to your separation by providing proof of your income, proof that you provided for your wife (eg your paid the rent and family living costs) and proof of healthcare insurance. It would also be good if you could get a copy of your wife's passport.


I hope this answers your question.

Customer: replied 3 years ago.

I have documents / photocopies from her employment and copies of her passport. But she is not supportive in any way and and threatened that she may inform the home office that she is not supporting any of my application. Is it ok to send these docements without her consent for an EEA 4 application as Its been 5 years since she is here and has been working?

Just to mention that previous seperation (not legally) was for two month and we recently got back together in March but didnt work out.

Now seperated for 3 weeks.

 

 

Expert:  A. Valcke replied 3 years ago.
Hello,


Thank you for your further questions.


There is no requirement that your application for retaining the right of residence following divorce must be supported by your wife. Indeed, in view of the fact that former spouses may not be on speaking terms at the time of divorce, it would be considered an "excessive administrative formality" within the meaning of the EU rules for the Home Office to impose a condition that your wife must support your application.


I would suggest that you retain copies of these documents in a safe place so that you can provide them to the Home Office after your divorce is finalised.


I hope this answers your question. Please don't forget to click accept. Thanks in advance.

Customer: replied 3 years ago.

My question is that, under current circumstances Can I apply for Permanent Residence (EEA4 application) without her supporting the application,as she has been here in U.K for 5 years excercising Treaty Rights and we are still legally married (although seperated but no legal seperation has taken place).

Also EEA 4 application requires original EEA passport (proof of ID) to be sent with the application. The home office has recently seen her original Passport and i have a letter from UKBA confirming return of her passport. This is proof that they have already seen the passport.

 

Thanks

Expert:  A. Valcke replied 3 years ago.
If you were to apply for permanent residence now without her original passport, UKBA will return your application as incomplete. The UKBA will not take into account the fact that they may have examined her passport before.


Also, in order for you to apply for permanent residence, it is not just a matter of your wife having been resident for 5 years. You must also have been residing in the UK for a continuous period of 5 years as the family member of an EU citizen.


Your best course of action is to start proceedings for a divorce. Once you have the divorce finalised, you will be able to apply for permanent residence immediately, since you would have been in the UK for more than five years and you won't need to provide her original passport.


I hope this answers your question. Please don't forget to click accept. Thanks in advance.

Expert:  A. Valcke replied 3 years ago.
Hello,


I hope my answer was useful to you. I'd be grateful if you could click accept. Otherwise the monies you have already paid are retained by Just Answer and I will not be compensated for my time.


Thanks in advance.

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