Understanding the interplay between personal circumstances and immigration status is crucial, particularly for those residing in the UK under various visas. A significant life event, such as divorce or separation, can indeed affect one’s immigration status and the right to remain in the UK.
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Understanding the consequence of divorce on your immigration status is vitally important, as it has the possibility to directly affect your ability to live, work, and eventually settle within the UK.
This article aims to provide a comprehensive understanding of how divorce can potentially affect your right to remain status within the UK if you, as a foreign national, have obtained permission to remain in the UK or have had entry clearance to enter the UK as a spouse of a person settled here or a British citizen.
Also read: Can Foreign Nationals Divorce in the UK?
The Impact of Divorce on Different UK Visas
The end of a marriage can bring about a sea of changes for you as the foreign spouse or partner in the relationship. And this could have a potential impact on your immigration status. The effect of divorce on your privilege to remain in the UK largely depends on the type of visa you hold. Let’s explore how divorce can affect different UK visas.
Please note that any reference to a spouse in this article is also a reference to a civil partner.
a) Spouse Visa
For individuals living in the UK via a Spouse Visa, a divorce can carry substantial consequences. This visa is offered on the grounds of an authentic relationship with a UK national or a person with settled status. Should this relationship conclude as a result of divorce, it’s imperative to notify the Home Office. Doing this could potentially lead to possibilities for transitioning to a different visa category
b) Dependent Visa
A Dependent Visa is issued to individuals who begin their relationship with a primary visa holder, such as a child. If the main visa holder undergoes a divorce, this could potentially influence the status of the dependents. However, it’s worth citing that there may be opportunities to apply for a separate visa category.
c) Partner Visa
A Partner Visa, much like a UK Spouse Visa, depends on a relationship with a visa sponsor. If this relationship terminates due to divorce, there is a chance that you may have to leave the UK. However, given your circumstances, you may be qualified to apply for another visa option or even for settlement.
d) Other Family Visas
Other categories of Family Visas, such as an Adult Dependent Relative visa or a Child Visa, could also be impacted by a divorce. Usually, an adult-dependent relative would be sponsored by a relative who already has settled status or British citizenship, so the fact that he/ she may be divorced at the time of application may not be relevant. In any event, an application to sponsor an adult-dependent relative can only be made by a person who has settled status or is a British citizen. This means that if that relative had been married before then, he/ she would have obtained a settlement on the basis of marriage or being an unmarried partner before applying to sponsor the foreign adult dependent relative. .
It is vital, however, to seek legal advice to grasp the potential consequences and explore alternative visa possibilities.
e) Citizenship or Indefinite Leave to Remain (ILR)
Divorce after indefinite leave or obtaining British citizenship will not restrict your right to remain in the UK. These statuses grant you the privilege to reside and work in the UK indefinitely, irrespective of changes in your personal circumstances.
Notifying the Home Office about Divorce
Clarity is paramount within the UK immigration system, which means you are obliged to inform the Home Office if you divorce or separate from your partner. It’s critical to report these transformations promptly to prevent complications.
To tell the home office about your divorce or separation, you must compose a letter detailing the circumstances of your relationship’s dissolution and provide any supporting documents, such as divorce certificates. This is then typically sent to the Home Office at their provided postal or email address.
Failure to comply with these reporting requirements can lead to serious issues. The Home Office might view any delay as an attempt at deception, which could adversely affect your current immigration status and future visa applications.
A Letter of Denunciation
There is nothing to stop the Sponsoring partner from writing a letter or e-mail to the Home Office reporting the breakup of the relationship, with a view to curtailing your visa so that you have to leave the UK on or before the date of curtailment or switch to a different visa.
This happens sometimes when the sponsoring party is aggrieved and doesn’t want the nonresident partner, for example, to stay in the UK and is being somewhat nasty towards that person. Suppose the visa is curtailed or is coming to an end in any event. In that case, you, as the non-resident partner, will need to consider leaving the UK or apply to remain on some other grounds, such as on human rights grounds, if, for example, you have a child born in the UK from that relationship.
How to Protect Your Rights During Divorce
Separation and divorce can be an overwhelming process, especially when it involves concerns about your right to remain in the UK. It is crucial to understand your rights, particularly regarding the family home, to ensure you’re adequately protected during this transition.
a) Right to Occupy the Family Home
No matter who is formally named on the lease or mortgage, both partners hold the right to stay in the marital home until the conclusion of the divorce process. Nevertheless, this does not assure an immediate right to persist in occupying the house following the end of the divorce proceedings. The outcome will depend on numerous things, including the presence of children and their unique needs.
b) Rights of Separated Spouses Regarding Entering the Home
After separation or divorce, both spouses still have the right to access the family home, even if one spouse has moved out. This right exists until the divorce is finalised and a court order states otherwise. However, it’s advisable to seek legal advice to understand your specific rights and responsibilities in this situation.
c) Asking a Spouse to Leave the Marital Home
Typically, it may not be appropriate to demand that your partner vacate the shared family property during divorce proceedings. Should circumstances within the home become intolerable, or should there be instances of domestic violence, you may consider seeking an occupation order from the judiciary.
Such an order can stipulate who resides within the family property, limit an individual’s ability to gain access to the property, or specify a minimum separation distance that must be observed by the individual in relation to the property.
Possible Ways to Remain in the UK
Following a divorce and potential inference on your visa status, you may wish to explore alternative ways to continue staying in the UK legally, as suggested above. Here are some other potential routes to consider:
a) Transition to a Work Visa
Securing a job in the UK may enable you to switch from a family visa to a work visa, such as the Skilled Worker Visa. Nonetheless, you’ll need to satisfy certain eligibility prerequisites, including obtaining a job offer from a licensed sponsor and meeting the salary benchmark.
b) Seek Independent Leave to Remain (ILR)
You might also consider applying for Indefinite Leave to Remain (ILR) independently from your spouse or partner. You may qualify if you have resided in the UK for at least five years without interruption and meet other criteria, such as demonstrating English language command and progressing the ‘Life in the UK’ test.
c) Submit Application for Pre-Settled Status
Although the EU Settlement Scheme deadline was on 30 June 2021, certain individuals might still apply if they have a valid justification for a late application. Pre-settled status could permit you to reside in the UK for an additional five years, following which you could apply for settled status, given you fulfil the requirements. If you do not apply for settled status for some reason, the Home Office now automatically will renew your pre-settled status for another two years without you having to make an application.
d) Explore the Private Life Route
If you have resided in the UK for a considerable period and have developed a private life, you may be able to stay in the UK by applying for leave to remain based on your private life. The criteria are strict, including having lived in the UK without interruption for at least 20 years or for less if returning to your home country would pose significant difficulty.
e) Submit Family Visa Application as a Parent
As a parent of a child who is a British citizen or has settled status in the UK, you have the option to apply for a family visa. This would facilitate you to stay in the UK and work without limitations. The application process can be complicated and require proof of your relationship with your child and evidence of your active role in their upbringing.
f) Pursue Legal Guidance
Navigating divorce and immigration rules can be daunting. Therefore, it’s essential to seek guidance from immigration specialists and family law solicitors. Gulbenkian Andonian Solicitors are proficient in these areas and can assist you in understanding the best plan of action based on your unique circumstances.
Understanding the outcome of a divorce on your UK immigration status can be complicated and distressing. However, with proper knowledge and advice, you can comprehend your situation better and make informed determinations. It’s essential to grasp that divorce can affect your right to reside in the UK, but the degree of impact relies on your visa type and personal circumstances.
If you discover yourself in such a situation, remember you are not alone. Seek reliable legal counsel from an immigration lawyer and investigate the different paths that may enable you to continue your life in the UK independently. They can offer support and guide you through this challenging time.
Need Legal Assistance?
If you require more guidance with regard to your divorce and immigration status, Gulbenkian Andonian Solicitors are more than willing to assist you. Our team is composed of seasoned immigration and family lawyers who specialise in both divorce and immigration law.
We are here to provide thorough advice, ensuring you’re well-informed and your future in the UK is secure. If you require any legal assistance, please feel free to contact us. We are always here to help.
In the unfortunate event that your partner passes away while you are residing in the UK under a Spouse Visa, you are entitled to apply for Indefinite Leave to Remain promptly, irrespective of the duration you’ve been in the UK. This enables you to settle in the UK without impediments.
Subsequent to a divorce in the UK, a wife is presented with a legitimate claim to a proportional distribution of the collectively accumulated assets throughout the course of the marriage. This could include real estate, financial reserves, pension schemes, and other assets of value.
The power to initiate removals from the UK is exclusively granted to the Home Office and cannot be executed by an individual spouse. If a divorce occurs and your visa status is contingent on your marital status, it is imperative that you engage an immigration solicitor to clarify your legal standing and options.
Indeed, you may qualify to apply for a Family Visa as a parent if your child, under 18 years of age, is British or settled in the UK. This application could potentially enable you to live and work in the UK.
The consequence of divorce on your Dependent Visa could vary, depending on the type of visa held by your partner. Immediate legal counsel is highly recommended, as is promptly notifying the Home Office about your altered circumstances.
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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.