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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Law
Satisfied Customers: 2084
Experience:  I am a qualified solicitor and an expert in UK law.
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I wonder if anyone could help me... I (EEA national) got married

Resolved Question:

I wonder if anyone could help me...
I (EEA national) got married to non EEA in Oct 2008 in UK. After marriage we lived together for 3 years. At that time I was a student and working part- time and he was self-employed. However, after 3 years of living together (in Aug 2011)I decided to continue my studies in another EEA country while he stayed in the UK and continue being self-employed). Since the time when I left in Aug 2011, I came for 2 weeks visit only in Feb 2012.
This week my husband was coming back from the holiday and was stopped my the immigration and they refused him to enter because currently I am not in the UK and I have not been there sine Feb 2012.
From what I understand in order for him to continue living in the UK I have to come back (which I cannot do because I still have not finished my studies) and live in work in the Uk for another 5 years so he could get PR. Do I understand it right?
Do we have any other option?
What about RoR? Is this an option in our case? Would it work if we divorce now so that he could get RoR? (I am counting on the fact that we lived together while being married nearly 3 years, total years of marriage 4 years and 8 months, however, we do not have any children)
I would be very grateful for you help
Submitted: 1 year ago.
Category: UK 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.

Where is your husband now?

Kind regards
Customer: replied 1 year ago.

He is in Morton Hall immigration removal centre, Swinderby, Lincolnshire, LN6 9PT. Yesterday we had interviews with immigration officer and thay say that he has 5 days to appeal. Do not know what to do :(

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

I am sorry to hear about your current situation.

It is a very difficult situation to be in, but your options are limited. The fact that you have not been present in the UK since Aug 2011 means that your husband should have left the UK with you. The main reason he was granted permission to remain in the UK on a 5 years EEA permit was because you were exercising treaty rights in the UK at the time of the application.

You are correct in assuming that you would need to be present in the UK for at least 5 years to enable him to be granted permission to remain in the UK on a permanent basis.

The fact is that he should not have remained in the UK after you left and therefore he currently has no right to enter the UK because they would have curtailed his visa. If he was to appeal this decision he would need to state the reasons for his appeal, the home office have correctly prevented him from entering because you are not present, therefore if he was to submit an appeal it would be refused on the basis that you are not currently in the UK and he should have left the UK with you.

In respect of retained rights of residence, this would only be applicable if he was allowed back into the UK and submit an application showing that he was resident in the UK for 3 years, but the home office can then view his immigration history after august 2011 and state that the last 2 years he has been remaining in the UK when he should not have, which would count against him.

If you wish to apply for retained rights of residence then he should leave the UK and then enter with yourself, you would need to provide evidence of you exercising treaty rights in the UK and then he could if he wishes apply for retained rights of residence, stating he was unaware of the fact that he had to leave the UK with you and had he known he would not have remain in the UK. You would also be divorcing him for the wrong purpose and I cannot advise you to do that simply to aid his residency in the UK. This is therefore something you should not consider.

I would therefore suggest you either return to the UK and start the process again ie him having to obtain a family permit or your husband leaves the UK and joins you in your home country. The fact is that if you being the sponsor are not present in the UK then, the home office are not obliged to allow him to enter the UK.

I am sorry if this is not the advice you wanted by the home office are very strict in allowing applicant's to enter the UK if the sponsor has no plans to reside in the UK.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. 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.

Just one more question, for instance, if I go to the UK tomorrow they still would not let him out because I do not have a job there and I am not exercising treaty rights. So I think this will not stop them from deporting my husband to his home country. Am I right?


 


 


Thank you very much for your answers, I think it helped me to make my mind

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

That is correct, as non eea nationals are unable to enter the uk without obtaining a visa before arriving, so unless you obtain employment in the UK prior to him arriving he would not be able to enter the uk.

Your husband should leave voluntarily and not be deported.

I hope this clarifies the matter if so kindly rate my answer positively so I can get credited for my time.

Kind regards
UK_Lawyer, Solicitor
Category: UK Law
Satisfied Customers: 2084
Experience: I am a qualified solicitor and an expert in UK law.
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