Divorce after Indefinite Leave to Remain
Divorce after indefinite leave to remain, (permanent residence), presupposes the consequences for a foreign national if there is a divorce prior to obtaining such permission to stay in the UK for the long term.
One of the ways whereby a foreign national can obtain permission to stay in the UK under the immigration rules is by marrying a British citizen or a person who has settled in the UK, i.e. one with indefinite leave to remain (ILR).
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After marriage, an application can be made for limited leave to remain, either from within the UK or by way of entry clearance outside the country, depending on the foreign national’s immigration situation. A successful applicant can obtain 2.5 years limited leave to enter or remain in the UK. Before that leave expires, an application will have to be made for a further period of 2.5 years limited leave, followed afterwards by an application for indefinite leave, i.e. for permanent residence.
The British citizen or settled partner must support the application – divorce proceedings.
The spouse visa application is made on the basis that the parties intend to live together permanently and that the relationship between the parties is genuine.
The limited leave to remain application, therefore, will need to be supported by the British or settled spouse who will need to sign a declaration of support. From then on, the foreign spouse will psychologically be the weaker party, and upsetting their British or settled spouse can lead to divorce proceedings. If this happens, the British spouse can write a letter of denunciation to the Home Office, to state that the relationship has broken up, divorce proceedings have been instituted, and that the foreign spouse should be told to leave the UK as the parties are no longer living together. Allegations can also be made to the Home Office by the British or settled spouse that they have now realised that their foreign spouse only wanted to marry them for immigration purposes. We have seen this many times before in cases that have passed through our office.
This kind of reaction can have disastrous consequences on the foreign spouse, as the Home Office could curtail the visa to expire earlier than it would have. If this happens, the foreign spouse will be asked to leave the UK on or before the date the visa was curtailed.
The foreign spouse may have invested lock stock and barrel into the relationship.
Foreign spouses who have invested heavily into their relationship emotionally and financially for example, and who may have left their family and a secure job in their country of nationality to come to the UK to make a new life, will find themselves having then to make difficult choices: they could, for example, try to stay in the UK by applying to the home office on human rights grounds and to deal with the divorce proceedings instituted, asking for spousal financial compensation, and they may have a stronger case to remain, particularly if they have a child or children with their British partner who themselves would be British.
If a relationship breaks down during the grant of the first or second period of 2.5 years limited leave to remain, it will also be open to the foreign spouse to institute divorce proceedings although it’s difficult to see what advantage there may be in doing so as this may not assist their stay in the UK. Ideally, the foreign spouse would be happy to delay as much as possible the advent of divorce proceedings by their British spouse.
ILR Domestic Violence
If there is domestic violence by the British or settled spouse against their foreign spouse, and if the police have been involved, there may well be a good reason for the foreign spouse to institute divorce proceedings based on the fact of unreasonable behaviour, and apply to the Home Office for the grant of indefinite leave to remain (ILR) based on domestic violence.
Divorce after Indefinite Leave to Remain – what happens when you have been in the UK for 5 years?
Once the foreign spouse has obtained indefinite leave to remain by making an application for such a visa before the second period of a further 2.5 years has expired (a foreign national needs 5 years leave to remain in the UK before applying for indefinite leave to remain), then any divorce proceedings instituted either by the foreign or British spouse will not affect the immigration position of the foreign spouse in the UK. It will be too late also for any letters of denunciation by the British spouse to have any effect, and the foreign spouse can rest assured of being able to stay in the UK permanently.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.