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Frantz I
Frantz I, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 402
Experience:  Over 5 years dealing with EEA Law, Nationality, Immigration and Asylum Law.
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HiThis is regarding a retained residency right as family

Customer Question

Hi
This is regarding a retained residency right as family member of an EU National.
After 11 years of marriage I divorced my EU national in November 2015. I am a non-EU National. We both have Permanent Residence in the UK.
My daughter from a previous marriage overseas moved to live with us in August 2014 and obtained a residence permit as a Family member of an EU national in December 2014. She is now 17 and in full time education.
Is she required to let home office now about my divorce to her step mother and thus apply for retained rights of residency? Or is she fine with her existing Residence Permit given I, her father, have a Permanent Residence in the UK?
Submitted: 1 year ago.
Category: Immigration Law
Customer: replied 1 year ago.
Hi
This is regarding a retained residency right as family member of an EU National.
After 11 years of marriage I divorced my EU national in November 2015. I am a non-EU National. We both have Permanent Residence in the UK.
My daughter from a previous marriage overseas moved to live with us inAugust 2014 and obtained a residence permit as a Family member of an EU national in December 2014. She is now 17 and in full time education.
Is she required to let home office now about my divorce to her step mother and thus apply for retained rights of residency? Or is she fine with her existing Residence Permit given I, her father, have a Permanent Residence in the UK?Thanks29/02/2016 09:54
Expert:  Frantz I replied 1 year ago.
Hello Thank you for your enquiry. Where a family member ceases to be a family member of a qualified person because their marriage had been terminated and they had been in the UK employed, self-employed or as a family member at the time, then prior to the initiation of the termination, the marriage had lasted at least 3 years and the parties to the marriage remained in the UK, then it is likely that the family members might acquire independent rights ( retained rights). You are required to inform the Home Office of any change of circumstances. **********************************************************************This is a simple question and answer platform. Answers expressed by the author in this platform are solely base upon the information provided by you. Under no circumstances should answers be relied up as immigration advice. Please note that the author accepts no responsibility for any reliance and it is your responsibility to seek independent legal advice before making any immigration application.
Customer: replied 1 year ago.
I have contacted the home office who advised that the child should apply as a child of settled person given she is living with her father now who is a settled person. But I believe she can apply using form EEA2 under the EU law.
Now how should she apply? Should she apply now or at the end of her 5 years residence permit?
Expert:  Frantz I replied 1 year ago.
HelloThank you for your enquiry. I am happy to answer a further question when the first has been rated if you would be so kind.
Frantz I and other Immigration Law Specialists are ready to help you
Expert:  Frantz I replied 1 year ago.
Hello Thank you ever so much. Your daughter also has the option to apply under the immigration rule ( Appendix FM). The option you choose depends on the strength of each. You should seek advice on which option. Obviously the EEA option is easier in terms of the requirements than the option of the Immigration Rules. As your daughter is still a minor, ensure that you make an application before she turns 18.
Customer: replied 1 year ago.
If I choose to make the application under the EU law using application EEA2 is this still considered. I am not sure she will qualify under domestic rules owing to my low income. Can you please explain to me requirement of each option?
Many thanks
Expert:  Frantz I replied 1 year ago.
HelloSure.You can only choose one of each option and if you choose to make the application under EU law, the financial requirement under Appendix FM does not apply. The option under the Appendix FM would require that you meet the financial requirements which as you state you may not meet because of your low income. For the option of retained rights you would need to show that prior to the initiation of the termination, the marriage had lasted at least 3 years and the parties to the marriage remained in the UK for at least 1 year during the period.
Customer: replied 1 year ago.
OBVIOUSLY IF I HAVE CHOICE I WILL GO FRO EEA2 application AS I do meet the requirement under the EU law as my marriage to my daughter's step mother lasted 11 years and we resided in the UK more that 12 years. My daughter moved in the UK 1 year and 4 months now.
The fact that I am holder of Permanent Residence I understand does not disqualify my daughter to apply for retained rights of residence under the EU laws. I want to be sure of this please. The home office stated that because I have PR and I am a settled person, she needs to apply under APENDIX FM. Can she still apply under EU laws regardless of their advice?
Thanks
Expert:  Frantz I replied 1 year ago.
HelloUnfortunately the JA rules prohibit any advice to be given in relation to whether your daughter should apply regardless of the advice you received from the Home Office or 3rd party. You should either seek independent legal advice for your specific case or make a judgement call on the general information you have. **********************************************************************This is a simple question and answer platform. Answers expressed by the author in this platform are solely base upon the information provided by you. Under no circumstances should answers be relied up as immigration advice. Please note that the author accepts no responsibility for any reliance and it is your responsibility to seek independent legal advice before making any immigration application.
Customer: replied 1 year ago.
Thanks,If I chose to apply under domestic rules (Appendix FM), is the financial requirement applicable at £18600? The applicant is not my partner, she is rather my under 18 child only. I am a disabled person and can't stay in jobs. I am applying for PIP but have not heard a decision yet. My child is my only carer in the country and she is registered with GP as such person. She is not in receipt of Carer's Allowance as she is in full time education. What rules would apply in this case?
Regards
Expert:  Frantz I replied 1 year ago.
Hello Unfortunately you would have to list this as a new question.

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