Divorce and the effect on a spouse visa
It is bad enough to go through the trauma of a separation or a divorce without also experiencing worry about the effect of your divorce on your spouse visa. It is not surprising that many partners stay in unhappy marriages because they do not know what to do for the best. If you are in that situation then Immigration solicitors urge you to take legal advice about your spouse visa. That way, you can make informed decisions about the future of your marriage based on what is best for you and your family.
spouse visa solicitors
London based OTS Solicitors are experts in Immigration law and specialise in Spouse Visas. Our specialist Immigration solicitors can advise you on the impact of a separation or divorce on your spouse visa and talk to you about your Immigration options. For fast, friendly advice from UK spouse visa solicitors call OTS Solicitors on 0203 959 9123 or compete our online enquiry form.
What is a spouse visa
To understand the implications of a separation or divorce on a spouse visa you first need to understand the purpose of a spouse visa and what it enables you to do.
A spouse visa gives a non-EEA national permission to live in the UK with their husband, wife or civil partner. To secure a spouse visa, and for the spouse visa to remain valid, you must be in a genuine, subsisting legal marriage or civil partnership.
Effect of separation or divorce on a spouse visa
If you separate or divorce from your spouse or civil partner then under Immigration Rules you are no longer in a ‘genuine and subsisting marriage or civil partnership’. The act of separation alone, rather than the start of divorce proceedings or the dissolution of your civil partnership, is said to be enough for your spouse visa eligibility to cease as the separation means your relationship is at an end.
As a spouse visa is reliant on the status of your relationship, if it does not subsist, you no longer satisfy the spouse visa eligibility criteria. That means you are no longer entitled to live and work in the UK under your spouse visa.
spouse visa – notifying the Home Office
If you are in the UK on a spouse visa and your relationship breaks down the Immigration Rules say that you must notify the Home Office of the change in relationship status.
Notifying the Home Office that you have separated from your partner will trigger action from UK Visas and Immigration. Your spouse visa will be curtailed and you will need to decide whether you want to stay in the UK or not, and if you do, you need to look at your visa and settlement options. It is best to take advice from an Immigration and family solicitor before you notify the Home Office as there are time limits within which you will need to make decisions and applications. Your choices may be more complicated if you have a child with your partner and that is why it is essential that you take both Immigration and family law advice.
If you do not notify the Home Office about your separation and they find out through other means this could have an adverse impact on any Immigration application that you make to remain in the UK.
The Immigration Rules say that when you inform UK Visas and Immigration that you are separated from your spouse or civil partner you need to tell them in writing and provide them with:
Your full name, date of birth, address and contact information;
Your Home Office reference number;
Your passport number;
Details of any court cases, for example divorce proceedings or children court application for a child arrangements order;
Your children’s details including details of whether the children live with you or with your spouse or civil partner.
In addition to the above information, you will also need to inform the Home Office if you agree to them disclosing a copy of your letter to them to your estranged spouse or civil partner. If you agree to disclosure you need to sign a ‘consent form’ and if you object then you need to sign a ‘public statement form’.
spouse visa separation options
If you are in the UK on a spouse visa your Immigration options will depend on whether your husband, wife or civil partner is:
A British citizen; or
An EEA national.
If your spouse is a British citizen
Just because your spouse or civil partner is a British citizen this does not give you an automatic right to stay in the UK if you separate whilst you are in the UK on a spouse visa. You will need to apply for permission to stay in the UK. An Immigration solicitor can advise you on the best available Immigration routes. It is sensible to take joined up legal advice so a family solicitor can look at any jurisdiction, children or financial issues arising from your various Immigration options.
Immigration options include:
Applying to settle in the UK, referred to as Indefinite Leave to Remain. If you secure Indefinite Leave to Remain you have the right to live and work in the UK. To qualify for Indefinite Leave to Remain you normally need to have lived in the UK lawfully for a minimum period of five years and meet other qualifying criteria;
Applying for a family visa as a parent of a British child or a child who is settled in the UK or has lived in the UK for at least seven years. To secure a family visa you will need sole or shared parental responsibility for your child. If parental responsibility is shared, the child’s other parent must be a British citizen or settled in the UK and they must not be your partner. The child must either live with you or you must have contact with the child by agreement or under a child arrangements order;
Applying for a family visa because you have lived in the UK for a number of years. The most obvious route to a family visa is if you have lived in the UK for twenty years or more. If you have spent less than twenty years in the UK you could apply for a visa based on your facing significant obstacles to integration into the country you would return to if you have to leave the UK , such as being at risk of prosecution, harassment or discrimination;
Applying for a work visa. The type of work visa options will depend on your personal circumstances but the most popular type of work visa is the Tier 2 General visa.
Staying in the UK after a spouse visa – cases of domestic violence
The Home Office recognises that some people are forced to leave a relationship because of domestic violence. The domestic violence does not have to be physical abuse. In the UK, domestic violence includes emotional, psychological, physical, sexual, and financial abuse.
If your spouse or civil partner is a British citizen or if they have Settled Status in the UK and you have experienced domestic violence during your relationship resulting in the breakdown in your marriage or civil partnership, you may be eligible to apply for Indefinite Leave to Remain.
If your spouse is an EEA national
Your Immigration options after entering the UK on a spouse visa are different if you separate from a spouse or civil partner who is an EEA national rather than a British citizen. Your Immigration options include applying for Retained Right of Residence. This may be the best option for you if you were married for more than three years and you cohabited in the UK for at least twelve months.
spouse visa separation – next steps
If you are in the UK on a spouse visa and you have separated from your husband, wife or civil partner then doing nothing is not an option. You must inform the Home Office about your separation as if you don’t this could have serious consequences for any future Immigration application.
You also need specialist Immigration law advice and family law advice, especially if you have children. That is because although you may want to leave the UK, taking your children with you, that option may not be as simple and as straightforward as it seems, Even if your children are not British citizens, if they are habitually resident in the UK, you will need your spouse or civil partner’s agreement to you taking the children abroad to live or, if you cannot get their agreement, a court order giving you permission to take the children overseas to live.
spouse visa solicitors
London based OTS Solicitors are experts in Immigration law and specialise in Spouse Visas. Our specialist Immigration and family law solicitors can advise you on the impact of a separation or divorce on your spouse visa and talk to you about the best Immigration and family law options. For fast, friendly advice from UK spouse visa solicitors call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.