Immigration and Divorce

The immigration consequences of divorce on the status of the migrant partner

These uncertain times maybe even more harrowing for a foreign spouse/partner whose visa is about to expire, but whose relationship has broken down, and their British spouse/partner has no intention to support an application for an extension of stay based on the marriage or relationship.

Curtailment of the visa

Indeed a denunciatory letter may already have been written by the British or settled spouse/partner to the Home office advising that the marriage is at an end, and as a result, the Home Office may already have curtailed the foreign national spouse’s / partner’s visa to expire earlier than anticipated. The foreign spouse/ partner may have a child/ children from the relationship.

What should the foreign spouse/partner do?

An application should be made before the visa expires for an extension of stay. If divorce proceedings have already commenced and an application has already been made for a child arrangement order under section 8 of the Children’s Act 1989 as amended, then provided the permission of the family court has been obtained, these documents can be included in the application to the Home Office for an extension of stay on article 8 Human rights grounds which is the right to family/ private life.

What if the foreign spouse/partner has not seen their child?

It is conceivable that there may be a child/ children of the relationship but the parties have been living separate lives, and the child/children have been living with the British/ settled parent. An application by the foreign parent for a child arrangement order, showing a sudden interest in his child/children for the first time, maybe looked at suspiciously by the Home Office and indeed the family court tasked with considering the application.

Child/children who are British or have reached the age of 7

If the spouses or partners have a child/ children either born in the UK who are British citizens, or who have lived in the UK for at least 7 years, and it can be shown that it is not reasonable to expect the child/ children to leave the UK with their foreign parent and return to their country of origin, then this is a plus factor for the human rights application. School letters, psychological reports to the effect that the child/ children will be affected psychologically by the removal of the parent concerned, a child’s medical issues, other family letters of support, will be good evidence for the human rights application, as well for example be the number of years the foreign spouse/ partner has lived here, their level of English, and whether they have been a liability on public funds before the application, or that there is a reasonable likelihood that they may be such a liability in the near future.

What if the application is refused by the Home Office?

If the Home Office refused the application for further leave to remain in the UK, they should grant a right of appeal to the Immigration tribunal, unless they consider the application made was so outrageous that there is no prospect of success whatsoever on appeal, and in those circumstances, they may certify the application as clearly unfounded. In that event, there will only be an out of country appeal once the foreign national is removed from the UK unless the certification itself is judicially reviewed successfully to allow an in-country right of appeal.

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