International relocation following divorce – the immigration issues

Following divorce, it is not uncommon for a parent to wish to move to a new geographic location with the child or children of the relationship. As good Family Solicitors will understand, the already complex provisions relating to relocation become even more so where there is an international element to the original relationship and the parent seeking to move intends to relocate abroad. Immigration and nationality issues can impact both on the parent seeking to relocate and equally on the parent who will be ‘left behind’. Even some of the best Family Solicitors may not be able to advise comprehensively on the Immigration issues that a relocation may present, so taking advice from a divorce and Immigration lawyer who can cover both angles, is crucial in such a case.

The Relocation application

Requests for relocation will be familiar to most London Family Solicitors. Following divorce or the break up of a partnership, one parent wishes to move away with the children of the relationship. The reasons for this can be varied – to return ‘home’, to make a fresh start, to follow a new partner or to take up a job offer. In more sinister circumstances, it can be a calculated attempt by one parent to exclude the other parent from the children’s lives. The courts will always consider the child’s welfare as being paramount in these cases, making any decision with the assistance of the welfare checklist as set out in the Children Act 1989. Making a decision in this type of case is a delicate balancing act that any top London family lawyer will be familiar with. Adding in an international dimension throws up all sorts of additional issues relating to Immigration and nationality, reciprocity between jurisdictions (will ordered regarding contact made by an English court be upheld in another jurisdiction?) and provisions for when things go wrong, including application of the Hague Convention.

Immigration issues in Relocation cases in England and Wales

As already mentioned, Immigration and nationality issues can arise in a couple of ways in international relocation cases. Firstly, there are questions of the Immigration status of either or both parents in the UK. If the parent who wishes to relocate cannot remain in the UK because of his or her own Immigration status in the UK, where does that leave a court who orders that parent not to leave the jurisdiction in the context of the relocation application? Equally, the parent who will be ‘left behind’ may find him or herself in Immigration difficulties. Secondly, there are questions of Immigration in connection with the proposed destination country. Will the relocating parent (and the children) be able to move there? Will the other parent be able to visit?

Immigration status in the UK

When the relocating parent is not a British citizen

If the parent wishing to relocate is not a British citizen, he or she will have Immigration issues to resolve which may mean the relocation back to their country of origin is an obvious step. If their status in the UK depends on their marriage or civil partnership with a British citizen, the divorce interrupts that, and staying in the UK will rely on a fresh visa application being granted.

In the case of Re TC and JC (Children: Relocation), the mother was an Australian citizen who wished to return to Australia with her children. Her position in the UK was complex and although she could apply for leave to remain in the UK in her own right, this was likely to take a year to resolve, during which time she would have had only limited opportunity to meet her children’s needs. Specialist Immigration advice suggested that the application would probably be successful the issues that would have to be dealt with while her Immigration status was resolved, and the significant costs that would involve, went in favour of the application for relocation.

When the remaining parent has Immigration issues

Another factor for the courts to consider is the Immigration status of the ‘remaining’, respondent parent who will be left behind if the other parent success in the relocation application. It could be, for example, that the respondent parent’s Immigration status is dependant upon that of his ex-partner – such as a non-EU citizen whose partner is an EU citizen in the UK exercising his or her freedom of movement. Should the EU citizen parent return to their ‘home’ EU country, the non-EU citizen would not be able to remain in the UK. The question would then arise whether he or she could relocate to the other EU country, or would have to return to his country of origin, and how this would then affect contact with and access to the child.

The factual background to any of these cases will determine the outcome in each case – so obtaining specialist advice from an Immigration lawyer with expertise in family law is vital.

Immigration status in the destination country

When the Immigration status in the destination country depends on the relocation application

Any parent considering moving to another country with their child will need to have thoroughly investigated the Immigration implications of the relocation, and whether they are likely to obtain the relevant permissions to live in the chosen country. For someone who is already a national of that destination country, this may be more straightforward than someone who does not have the nationality or even a connection to the country where they are proposing to live. In some cases, resolution of the relocation application may be pivotal to the outcome of any visa decision by the destination country. In Re M (Leave to Remove Child from Jurisdiction) the mother wished to move to Canada with her child, but the Canadian authorities would not process her visa application until she could satisfy them that she had the right to bring her child with her. The relocation application had to be determined on a ‘speculative’ basis – which the court concluded in the mother’s favour, allowing her to make her visa application.

When visa issues may prevent contact

Another consideration that the court must weigh up in any relocation application is contact arrangements with the other parent. It may be that the Immigration rules in the destination country make it difficult for the other parent to visit the child. A case where a father has previously been convicted of a sex offence which prevents him from visiting a country would be an example.

Relocation is a big decision for any parent. Introduce an international element and the issues become more complex. Expert Immigration and family law advice and support is vital for any application to succeed.

OTS Solicitors are specialist Immigration and family lawyers able to advise on all aspects of international divorce, including relocation matters. We deal sensitively and in confidence with these most difficult and personal of issues, using our expertise to deliver the right results for our clients. To book an appointment to discuss your Immigration and family law issue, call 0203 959 9123 today.