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UK_Lawyer
UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience:  I am a qualified solicitor and an expert in UK law.
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hi, I need help with this. I have been married to my Bulgarian

Customer Question

hi, I need help with this. I have been married to my Bulgarian husband since oct 2009. We ve two young girls together. I put in for my residence permit in feb 2010 but unfortunately my application was refused because he lost his job at that time. He has been switching on and off from this marriage since the refusal. I had my second girl in NOV 2012. He had left since Jan 2013, said he didnt want me anymore. Pls, I need a direct answer as to whether I could file a divorce and apply for residency on my own. I dont want to be removed, because I cannot look after d children on my own in Nigeria.
Submitted: 3 years ago.
Category: Law
Expert:  UK_Lawyer replied 3 years ago.
Thank you for your question.

Is you husband currently employed?

Kind regards

Customer: replied 3 years ago.

"UK LAWYER"


He lost his last job in feb 2012. He has found one since then. Am in employment cos he applied for a National Insurance No for me

Customer: replied 3 years ago.
Relist: Incomplete answer.
uk lawyer has been off line for too long.
Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

What I suggest you do is as you have remained in the UK for over 3 years married to the EEA national, you can apply for retained rights of residence.

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:
a. Pursuing activity which would make him/her a worker or a self-employed person if s/he were an EEA national; or
b. A self-sufficient person; or
c. 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, there are other means of recourse.

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

Kind regards
Customer: replied 3 years ago.

Thanks so much for your time to reply. I really donot understand "THE PERIOD OF FIVE YEARS" because I ve not been granted any five years or permanent residency by the UKBA. Am I still qualify to apply on my own after the divorce. And does it matter that my husband has not been in employment up till the date of the initiation of proceeding for the divorce. Am still in employment though.

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

What visa do you currently hold?

Kind regards
Customer: replied 3 years ago.

"UK LAWYER"I do not hold any visa now. I came on a visitor visa in 2005. I met my husband just before my visa expired, we have been together since then but got married in 2009. I put in an application in 2008 for partnership which was also refused. This is why I want to know if I can apply on my own after the divorce has been completed. I hope you understand me. Thanks

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

The fact is that your not on any visa right now and if you had applied and obtained a visa then this would be your vehicle to derive your eea rights.

Unfortunately if that is the case then no you are not able to apply on your own as you never had leave to remain in the uk under the eea regulations and if you divorce then you would not be able to apply on your own right. The fact is that you are an overstayer and you must either apply for a residence permit or leave the uk.

I am sorry if the advice given is not what you wanted to hear but the immigration rules are very strict in respect of granting individuals leave to remain.

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

Kind regards
Customer: replied 3 years ago.

Thanks for your time and sorry if am making this too long. How do I apply for resident permit, is that on d eea right or uk rules. Am just worried because of my two girls.

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply. It's not a problem at all, no need to apologise.

You can apply for a residence permit by using the following link :

http://www.ukba.homeoffice.gov.uk/eucitizens/documents-family/applying/

You must use form EEA2 to apply for a residence permit. Do explain your situation and the reason for your application.

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

Kind regards

Customer: replied 3 years ago.

so am still eligible to apply for resident permit using form EEA2 after d divorce, even as an overstayer.

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

Unfortunately not you will only be able to apply for residency permit if your husband is working and you are still in a subsisting relationship.

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

Kind regards
Customer: replied 3 years ago.

Thanks again, what would you advise I do since he doesnot want the relationship again. I have two children to look after and I can only do that here because I have been here for eight years and I dont ve any ties to Nigeria now. will definately rate u as excellent especially for ur patience

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply. ,
What nationality are the children?

Kind regards
Customer: replied 3 years ago.

They are suppose to be Belgian but their father did not get their passport for them. He has not really been helpful. I have got their birth certificate with his name on them, obviously.

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

The best thing to do would be to apply for Belgium nationality for the child and then apply on the basis of your children in the uk. You need to apply under the zambrano rules. Please read the eea 2 form.

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: Law
Satisfied Customers: 2452
Experience: I am a qualified solicitor and an expert in UK law.
UK_Lawyer and other Law Specialists are ready to help you
Customer: replied 3 years ago.

thanks so much, tried to rate ur answers but bringing up error msg.

Expert:  UK_Lawyer replied 3 years ago.
It's a pleasure.

Good luck

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