Separation and divorce can affect your right to remain in the UK

Posted onOctober 2, 2017

By Oshin Shahiean, of OTS Solicitors

The decision to divorce is hard for anyone. However, if one party to the marriage resides in the UK on a Spouse or Civil Partnership Visa, the demise of a relationship can also mean having to leave the country permanently.

The reason for this seemingly draconian penalty is that if a couple separate, the partner who holds a UK Spouse or Civil Partnership Visa is left bereft of one of the core elements the visa was granted under – that they are in a genuine and subsisting relationship with their sponsoring partner.

Our Immigration and divorce solicitors based near St Paul’s in London can provide the best legal advice and representation if you are in the UK on a spouse visa and are going through a divorce. We have satellite offices throughout the capital, including Mayfair, Notting Hill, and Kensington.

What are the elements of a UK spouse visa?

To qualify for a UK spouse/marriage visa, you must satisfy the following requirements:

You and your spouse must be 18 years old or over.
You must have met each other and be legally married - this is to prevent arranged marriages.
You must intend to live together permanently.
You must have enough money to support yourselves (and any dependents) without claiming public funds.
Your sponsoring partner must earn more than £18,600 per year or have enough savings to be able to sponsor you. The minimum financial requirement is higher if they are also sponsoring dependent children.
You must have suitable accommodation for you, your spouse, and any dependents.
You must satisfy the English language requirements.

If you are applying from outside the UK, a spouse visa is generally issued for 33 months. Applications from within the UK are valid for 30 months. The visa can be extended, and after five years you may be able to apply for Indefinite Leave to Remain (ILR).

Can the Home Office Curtail my leave?

The Home Office can curtail your leave to remain in the UK following divorce or separation, and since 2015 there is no right of appeal or to Administrative Review. The only remedy against a curtailment decision is judicial review.

Do I need to tell the Home Office if I have divorced or separated from my partner?

If you and your sponsoring partner separate or divorce, you must inform the Home Office of this fact.

The sponsoring partner can also inform the Home Office that you have separated or divorced.

Such actions can lead to tragic cases of “stranded spouses”, whereby the sponsoring partner takes their spouse abroad after the spouse visa has expired (often returning to the spouse’s family, supposedly for a holiday), then abandoning them. As the sponsoring spouse controls the Immigration status of the non-EEA spouse, they may be unable to renew their spouse visa in time or to apply for ILR.

To avoid such a situation occurring, the best divorce and Immigration lawyers will advise you against overseas travel if your visa is about to expire.

Other cases of severe domestic abuse have arisen because the sponsoring partner refuses to support their spouse applying for a visa extension. The spouse then becomes an overstayer but fears leaving the relationship because they may be deported and never see their children again.

What should I do if my marriage breaks down and I am in the UK on a Spouse or Civil partnership Visa?

As with any marriage breakdown, it is crucial that you contact an experienced solicitor who can advise you on your rights regarding obtaining a fair financial settlement and agreeing on arrangements for your children. However, if you are in the UK on a visa, you will also need to instruct a solicitor who has an in-depth understanding of Immigration law so they can protect your best interests when it comes to being permitted to remain in Britain after your divorce.

What are my options for being able to stay in the UK following a divorce or separation?

There are several routes to remaining in the UK if you have a spouse visa and are now separated or divorced. These include:

switching to another visa such as a Tier 2 (General) Visa if you are working, or a Tier 4 student visa
if you have been in the UK for many years, you could apply for leave to remain under the 10 or 20 years long residence route
if there are children in the relationship, you may be able to apply for a variation of leave under the Immigration Rules – Family Life as a Parent.

Family Life as a Parent route

Should you have a child under 18 years living in the UK with a parent or guardian that is not your partner or spouse, you may apply for a settlement visa under the category named “Family Life as a Parent.”

To be eligible to apply under this category, your child must be living in the UK, and either as a British citizen or settled in the UK.

You must also be able to prove that either:

You are the only parent of the child, and you’re the only person who’s responsible for them, or
Your child lives permanently with another parent or carer who is British or settled in the UK and not your partner, and you want to help raise them. In this case, you will need to prove that you have access to your child in person, either agreed with the other parent or carer or by a court order.

In addition to the above, you must also:

Prove you’re taking an active role in the child’s upbringing, and
Show that you can support and accommodate yourself without claiming public funds.

If your application doesn’t fit within the criteria set out under the Life as a Parent route, UK Visas and Immigration also need to consider whether the decision to curtail your leave is consistent under Article 8 of the European Convention on Human Rights and whether it is consistent with the Secretary of State’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009.

In summary

If you are a non-EEA national who is residing in the UK on a Spouse or Civil Partnership Visa and you are getting divorced, it is imperative that you seek experienced family and Immigration law advice. The last thing you and your children need at such a stressful time is for your leave to remain in the UK to be curtailed.

OTS Solicitors is one of the most respected Immigration and family law firms in London. By making an appointment with one of our Immigration and/or Family Solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in all divorce matters, including advising on the best route available to you to remain in the UK.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.

By Oshin Shahiean, of OTS Solicitors