Can you get a spouse visa if you are separated?

If you are in the UK on a spouse visa and you are thinking about separating from your husband or wife you need to know if you can stay in the UK on a spouse visa if you separate or divorce. As immigration solicitors we know just how important this question is to those either deliberating on whether to separate or not and for those faced with their spouse’s decision that they want to separate. The question of whether you can stay in the UK on a spouse visa living separately is all the more worrying for many people because of COVID-19 and the impact of the global pandemic on international travel and job opportunities.

UK Immigration and spouse visa solicitors

If you need help and advice about separation and your spouse visa, OTS Solicitors specialise in family law and immigration law. For expert advice on your best options call us on 0203 959 9123 or contact us online. Appointments are available by phone or video call.

Separating on a spouse visa

When you decide to come to the UK on a spouse visa most people don’t think about what might happen if their relationship breaks down. As specialist immigration and family law solicitors we have seen a marked rise in enquiries such as 'can my spouse cancel my spouse visa?' because of the emotional and financial impact of lockdowns and COVID-19 on families.

The bottom line is that if you got entry clearance for the UK based on your relationship and secured a spouse visa then separating will affect your right to stay in the UK. That’s why it is best if you are thinking about separating to get both family lawand immigration law advice on your options as the Immigration routes available to enable you to stay in the UK will depend on your family circumstances and Immigration record.

Immigration options if separating on a spouse visa

It is understandable that you want to know if you can stay in the UK if you separate but whether you can settle in the UK or switch to a new visa very much depends on your particular circumstances. You may have more than one Immigration route available to you, in which case, you need to carefully consider the best option for you.

Your Immigration options after separating whilst in the UK on a spouse visa include:

• Settling in the UK by applying for Indefinite Leave to Remain in the UK. You will be able to settle in the UK through securing Indefinite Leave to Remain if you meet the residence requirement which is five years of continuous lawful residence. If you aren’t sure if you meet the residence requirement or not or if you have had extended absences from the UK it is best to take some immigration advice before submitting your indefinite leave to remain application. You should not leave a gap between the expiry of your spouse visa and an application for Indefinite Leave to Remain as you then won't necessarily meet the lawful residence requirement because of the period between the end of your spouse visa and your settlement application
• Applying for Indefinite Leave to Remain using the domestic violence concession. If you don’t meet the five year residence requirement for a settlement application you may be still able to apply for indefinite leave to remain if you experienced domestic violence in your relationship. This is provided that you can establish that you experienced domestic violence and your relationship broke down because of the domestic violence. You also need to be able to show that your relationship with your husband or wife was genuine and ongoing when you were last granted a spouse visa
• Applying for a parent visa if you have a child who is either British or is settled in the UK and has lived in the UK for at least seven years
• Applying for a work visa if you meet the eligibility criteria for a work visa such as the skilled worker visa or the health and care worker visa. This type of visa application is made under the points-based Immigration system so you will need to score the relevant number of points to qualify for a visa. Generally, if you meet the eligibility criteria for indefinite leave to remain or for a parent visa these are likely to be your best options to stay in the UK
• Applying to stay based on your private life. You may be able to apply to stay in the UK if you are age between 18 and 24 and you have lived continuously in the UK for more than half your life or you are aged at least 18 and you have spent less than 20 years in the UK and would have significant problems if you had to return to live in the overseas country you would have to go back to or you are aged at least 25 and you have been continuously in the UK for 20 years
• Applying for retained right of residence if your spouse is an EU, EEA or Swiss citizen with the right to reside in the UK. To secure retained right of residence your marriage to your husband or wife or your civil partnership must have lasted for at least three years. You will also need to be able to show that divorce or dissolution of civil partnership proceedings have been commenced.

Telling the Home Office about the decision to separate

Making the decision to separate from your husband or wife is not only a momentous decision but one that is very personal to you and one that you may not want to tell people about. That is equally true if the decision to separate was made by your husband or wife and you feel shell shocked by their news. However, if you are in the UK on a spouse visa you are under an obligation to tell the Home Office if there is a relationship breakdown. If you have a bad argument with your husband or wife and one of you leaves for a few days then this doesn’t count as you only need to tell the Home Office about a separation if the decision to separate is permanent.

If you are unsure about whether to notify the Home Office about your separation it is best to take legal advice because of the consequences of not informing the Home Office about your change in circumstances. For example, you may be reluctant to let the Home Office know about your separation as it wasn’t of your choosing and you hope that your partner will change their mind despite them telling you that the marriage is at an end.

Some people think that there is no obligation to tell the Home Office about a separation unless divorce proceedings have been started and some think that the obligation to notify only occurs once the decree absolute of divorce has been pronounced. Both of those are wrong. The requirement to notify the Home Office occurs if there is a permanent separation so once you know that the relationship has definitely broken down you need to let the Home Office know.

Consequences of telling the Home Office about a separation whilst on a spouse visa

If you separate from your husband or wife whilst on a spouse visa and let the Home Office know then they will initiate what is referred to as ‘spouse visa curtailment’.

spouse visa curtailment means that once you tell the Home Office about your separation they will curtail or shorten the spouse visa. That is because the spouse visa is reliant on a continuing relationship. Normally, the Home Office will curtail the visa to sixty days to give time to leave the UK or to apply to settle in the UK or switch to a new visa. As you normally only get sixty days that is why it is best to get early specialist family and immigration law advice on your options.

In some circumstances the curtailment period can be shorter, for example, if you have less than sixty days left on your spouse visa. In other cases, the Home Office can make an exception to the normal sixty-day curtailment period. For example, if you can show that there are exceptional circumstances that should justify the leave being longer than sixty days because of the impact of the domestic violence experienced by you.

UK Immigration and spouse visa solicitors

If you are in the UK and need advice about separation and your spouse visa, OTS Solicitors specialise in family law and immigration law. For expert advice on your best options call us on 0203 959 9123 or contact us online. Appointments are available by phone or video call.