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Awan-Legal, Solicitor
Category: UK Immigration Law
Satisfied Customers: 128
Experience:  Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
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Hi need some answer regarding an answer given sometime ago.

Customer Question

Hi need some answer regarding an answer given sometime ago. I was told that my cousin can retain his right of residency after divorce. Does he gets another 5 yrs or he gets an indefinite leave to remain?
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Awan-Legal replied 5 years ago.

Awan-Legal : Hi
Awan-Legal : Thanks for your question. Bear with me whilst I draft my answer.
Awan-Legal : He can apply for permanent residence on form EEA4 if he meets the following criteria:
Awan-Legal : Applicants need to demonstrate that their marriage has terminated; the parties must be divorced and it is not enough to show that the relationship has broken down under European law. It must be proven that the couple had been married for at least three years prior to the initiation of divorce proceedings and they had lived together in the UK for at least one year during the duration of the marriage or civil partnership.Non-EEA nationals are also required to show that at the date of application, they are ‘exercising treaty rights in the UK’ either as a worker, self employed or self sufficient person. The difficult aspect if this application is proving that your EEA ex-spouse had been exercising treaty rights for the 5 years in question. Some marriages end badly and being able to retain documents to prove the EEA ex-spouse had been exercising treaty rights in the UK may not always be possible. However, the case of OA (EEA – retained right of residence) Nigeria [2010] UKAIT 00003, held that applicants must be able to demonstrate that his/her EEA ex-spouse had been exercising treaty rights for the 5 year period in order to qualify for permanent residence.
Awan-Legal : These applications are not straight forward so you may wish to seek the assistance of a good lawyer.
Awan-Legal : Is there anything else I can help with arising from the above?
JACUSTOMER-fuh67elv- : So if after 3 yrs of marriage the ex spouse which is the supposed wife needs to continue working in the UK ? What if the contact with the ex is lost?
Awan-Legal : That is correct, She must have worked for 5 years. If he has evidence that she has worked for five years continuously in the past, this does not necessarily have to be right up to the date of the application. I have succeeded on applications like this in the past but you would need to prove she was working for 5 years. If not, there is a way to request the ukba to check her employment applications. Bear with me and I will provide you with the information for this.
JACUSTOMER-fuh67elv- : Was of the opinion that as a result of the divorce, the applicant will be assessed based on him alone seeing that he has been divorced . What if the ex decide to leave the country , what will be the faith of my cousin?
Awan-Legal : UNfortunately, the EEA regulations specifically state that the ex spouse EEA national must have been exercising treaty rights in the uk (work, self employment or self sufficient with sickness insurance cover) . The non EEA national must also show they are working but fundamentally to obtain retained rights, the EEA national must have been working etc for five years.
Awan-Legal : The case of Amos sets out how to obtain information from the UKbA about the ex spouse working - where the family member had difficulty in establishing the ongoing exercise of Treaty rights of their estranged partner, the case should not fail without the Secretary of State using her own power to seek evidence as to their activities using information held by other government departments (such as National Insurance contributions). The Court found that the Home Secretary is not bound to make enquiries of other government departments for evidence they may or may not have concerning issues before the Tribunal. However some interesting points were made as to how the appeal might have proceeded by reference to the First-tier Tribunal Procedure Rules if the point had been pursued in the Tribunal below:  the Tribunal could "allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal" … even if that evidence would be inadmissible in a court of law; an Applicant could apply under rule 50 for a witness summons requiring her ex-spouse to attend and give evidence as to whether or not he was and had been working, or seek a direction under rule 45 requiring the Secretary of State to provide any information necessary for the determination of her appeal (implying that had the Secretary of State been asked to disclose such records during the appeal process, an appropriate direction might have been made.
JACUSTOMER-fuh67elv- : If the criteria of working for 5yrs is not met by either spouse what happens next after 5 yrs when the visa runs out?
Awan-Legal : Retaining rights if the ex spouse leaves the uk will only be possible if the couple had a hold together and the child is still in education in the UK.
Awan-Legal : Unfortunately, there will be no right left to remain in this capacity in that case.
Awan-Legal : The EEA national is allowed a six month gap in the 5 ears though if they were looking for work during that time.
Awan-Legal : I hope that answers your question.
Awan-Legal : Please click accept on my answer unless you have any further questions from the above so that I may be rewarded for my time. Thanks.
JACUSTOMER-fuh67elv- : What if during the second yr of marriage only the husband was working for a yr and the remain married all through, what happens after the fifth yr?
JACUSTOMER-fuh67elv- : .... And the remain married
Awan-Legal : It must be the EEA national that has worked for the full five years to benefit from this permanent residence requirement based on retained rights.
JACUSTOMER-fuh67elv- : At what point does the spouse gets another 5 yr visa?
Awan-Legal : If they are still married, then he can apply for a furher five years on a residence card but if not, then this right is no longer applicable.
Awan-Legal : Unless they have a hold together
Awan-Legal : Sorry I meant 'child' together
JACUSTOMER-fuh67elv- : Can the new five yr visa obtained compensate for the yr lost ?
Awan-Legal : Yes if they are still married, she can work for a further year to compensate for this.
JACUSTOMER-fuh67elv- : So can the application be made then after the after one 1st year ?
Awan-Legal : If they are still married then yes but not if they are divorced.
Awan-Legal : and if the four years before were continuous as the five years working must be in a row.
JACUSTOMER-fuh67elv- : This lady in question has worked before the marriage for a yr and she was off work for a period of time before the marriage , can this count as part of her 5yrs ?
Awan-Legal : Why was she off work?
JACUSTOMER-fuh67elv- : She left the country
Awan-Legal : They would also need to show that they were in a relationship for that year before the marriage.
JACUSTOMER-fuh67elv- : So it doesn't count if no relationship was established at that point?
Awan-Legal : That is correct. Reg 6(2) provides that a person does not cease to be treated as a worker is he or she is “temporarily unable to work as a result of an illness or accident” so if that was her reason for the break in her working then that is fine so long as they were in a relationship then.
Awan-Legal : If she left the country then this will not count.
Awan-Legal : Is there anything else you want to know about the above?
Awan-Legal : Otherwise please click accept, thanks.