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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2106
Experience:  I am a qualified solicitor and an expert in UK law.
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Am in the process of applying for my Permanent Resident card

Customer Question

Am in the process of applying for my Permanent Resident card as a family member of an EEA national. I have been granted a divorce as a result of been desserted for more than 2 and half years.. My question is what are the chances of been successful with the application. my ex partner is not willing to provide any information what so ever to assist in my application like providing payslips or work details in other to prove that shes been exercising treaty right whilst we were together. Am worried this will slow my application or make thins difficult for me. I should be getting the degree absolute in a few weeks time. Should i wait for the degree absolute before applying for PR or not.. Also ive got a criminal record however it wasnt a prison sentence.. it was a caution and a suspended sentence will this affect my application in anyway.. please feel free to ask any question if required. thanks
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 1 year ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

How long have you been married?
How long have you been in the uk married with the eea national?

Kind regards
Customer: replied 1 year ago.

we've been married since 2004


And i came to the UK in 2002,, married in 2004 and have been in the UK ever since.. apart from 2007 when i went back home to renew my passport for 2 weeks

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

In your situation there is nothing preventing you from applying for permanent residency. The fact is that as you have been in the uk for 5 years you have automatically obtained permanent residency.

However the situation does get complicated because your relationship is no longer subsisting and there, what you would need to indicate on the application form is that you have during your time in the uk retained your right of residence. I suggest that you should wait for the decree absolute and then apply.

EEA law is notoriously complex and navigating the rules regarding retained rights of residence can be especially fraught, particularly since issues of proof and evidence frequently arise when a couple has dissolved  their relationship and do not remain on amicable terms.

Whether or not a non-EEA national can retain his or her right of residence following divorce from their sponsoring spouse is dependent on their personal circumstances.  However, the Regulations state that if the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution and both parties to the marriage had resided in the UK for at least one year during the duration of the marriage or civil partnership, the non-EEA national may qualify for retained rights of residence.

In order to satisfy the requirements of the Regulations, the non-EEA national must be living in the UK at the date of the divorce or annulment and should be:

Pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national; or
A self-sufficient person; or
The family member of a person in the UK who is either a worker, self-employed, or is a self-sufficient person.

It is therefore possible for a non-EEA national to retain rights of residence should their marriage break down before their five year qualifying period for settlement, or permanent residency, has been completed.  In cases where a marriage or partnership has lasted for less than three years, it may still be possible to retain residency rights if compelling reasons and evidence can be presented to the UKBA, however, retaining the right in these circumstances will clearly be much more difficult to achieve.

There is an important distinction between a person who is separated from, but still legally married to, their EEA national spouse and a person who seeks to retain a right of residence following the termination of their marriage to an EEA national.

A person who is the spouse or civil partner of an EEA national, and who separates from that EEA national but remains married to, or in a civil partnership with them, cannot retain a right of residence under Regulation 10.  They will, however, have a continued right of residence provided the EEA national spouse or civil partner continues to be a qualified person (i.e., a person exercising Treaty rights) living in the UK.

Where such a person wishes to apply for permanent residence in the UK, they would need to provide evidence to demonstrate that they had resided in accordance with the Regulations for a continuous period of 5 years. This would include evidence to demonstrate that the EEA national spouse or civil partner had been a qualified person throughout the relevant 5 year period, including during the months or years of separation. 

Of course, issues frequently arise in situations such as these because it may be impossible to persuade an estranged partner or spouse to cooperate and provide necessary evidence that they have been exercising Treaty rights through demonstrating, for example, that they have been in employment throughout the 5 year period. 

There are however, provisions by which a non-EEA national who is applying for permanent residency can request the UKBA to perform checks with other government departments in order to establish that the EEA national is still a qualified person.  Although these checks only take place in exceptional circumstances, it is reassuring to know that should you be unable to provide any evidence that the EEA national is a qualified person.

In respect of your offence it has to be spent in your case if your offence has been spent then you can apply please see following link :

http://www.justice.gov.uk/offenders/rehabilitation-of-offenders-act

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 1 year ago.

thanks for your indepth reply.. I know for a fact my conviction hasnt been spent. does that affection my ability to successful apply for PR?

Expert:  UK_Lawyer replied 1 year ago.
Thanks you for your reply.

If it has been spent then your application will not be effected.

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 1 year ago.

What if it hasnt been spent? that was my question

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

The issue with this can be that the ukba does not see you as an individual who is of good character. What you need to do in this case is to state mitigating circumstances in respect of your offence.

The ukba will look at each offence separately and then determine whether your offence would deem you being someone who is of a good character or not. There state the details of your offence and any mitigating circumstances surrounding your conviction in the application form.

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Expert:  UK_Lawyer replied 1 year ago.

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Expert:  UK_Lawyer replied 1 year ago.
Kindly rate my answer positively so I can get credited for my time.

Expert:  UK_Lawyer replied 1 year ago.
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