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In this article we will cover the options available to those who are in the UK on a spouse visa and are undergoing divorce proceedings or have already concluded it.

We routinely work with our colleagues from Family law department to design the best solutions for our clients who found themselves in a situation where their family life has irrevocably broken down and they are facing added uncertainty of whether they will be able to continue living in the UK following the dissolution of their marriage or partnership.

RVS is ideally positioned to tackle such issues as we are able to offer a holistic approach to the problem. We have highly specialised departments for both – Immigration and Family proceedings. This allows us to assess and address all the issues in a timely manner and advise the clients accordingly. Unlike the firms that either specialise in one area or another, or offer services in many disciplines without specialising in any, we are able to offer specialist services in both disciplines, while working in tandem with our colleagues from the other department to address the complex multidisciplinary issues faced by those who find themselves in need to come out of a relationship that has been the reason for them to immigrate to the UK.

This article will deal only with those who are holders of a spouse visa. We will address the options available to those who are in the UK as a family member of an EEA national in a separate post.

There can be many reasons for someone who has come to the UK on what’s commonly referred to as spouse visa to wish to continue to remain in the country after the relationship has broken down. It can be because the couple has children and leaving the country will mean either disrupting the children’s lives or losing meaningful contact with them. Other reasons can be work or private life related and so on.

There are numerous scenarios that can arise after a divorce or separation, we will examine the most common of them.

CONTACT US if you need help with securing your stay after a divorce or you are contemplating a divorce or separation while on a spouse visa.

The UK spouse visa is designed for those who wish to travel to the UK to join their British spouse. There are several very strict and often technical requirements to be met before one is issued with spouse visa. To examine those is not the purpose of the current article and will be covered in a different article.

Considering that the basis of the stay in the UK was the relationship, normally, the migrant will be required to leave as soon as they separate from their British Spouse. Once the relationship has broken down, the migrant is expected to inform the Home Office of that fact. It needs to be noted that the spouse as well can inform the Home Office of the breakdown of the relationship. In both cases the Home Office has powers to curtail the leave. It is therefore essential that as soon as family relations start to break down those affected seek specialist advice from Immigration and Family law solicitors. Otherwise, you risk being blindsided by a Home Office order to leave the country while you are still fighting divorce proceedings, child arrangements or financial proceedings in a British Court.

It needs to be noted that the Home Office does not need to wait until the Divorce proceedings are finalised to curtail the leave, they can act on simple information received from the migrant or their partner about the breakdown of relationship. Unfortunately, where the divorces are too confrontational it is very well possible that the spouse would inform the Home Office of the relationship breakdown even before the couple has made an application for divorce. This is why early action is essential and you lawyers should understand both Family Law proceedings and Immigration to advise you accurately. In some instances, an application to be granted limited leave will need to be made to the Home Office to secure your position.

The solutions for each case will be different.

Domestic Violence

Where the relationship has broken down due to domestic violence the migrant has an option to apply to settle in the UK (get Indefinite Leave to Remain). Domestic violence comes in different forms it doesn’t necessarily have to be physical. It can be psychological, physical, sexual, financial or emotional. In all cases the biggest challenge is proving the instances of domestic violence and expert advice in invaluable for this. In many cases, having the Family courts acknowledge the existence of domestic violence, via non-molestation order or otherwise, in your family proceedings will be very useful for evidential purposes in your immigration case.

Parent of a Child in the UK

In cases where there is a child the best route to follow will normally be a route called Parent of a Child in the UK.  This route is open to anyone who has a British or settled child. The other requirement is that following the breakdown of the relationship there should be a responsibility or contact with the child. In such instances it is important that there are child arrangements in place that demonstrate the above.

The requirements, in short, for this route, are that:

  • The child needs to be under the age of 18 at the date of application;
  • The child should be living in the UK
  • The child either is British or has indefinite leave to remain or
  • The child has lived in the UK for at least 7 years continuously.

The Parent of the child is described by the Immigration Rules not only as the biological parent, but the adoptive or step parent, as well as the legal guardian.

Tier 2 route

In some circumstances were the migrant is employed by a UK employer the Tier 2 route might be suitable to consider. Tier 2 is a route for overseas skilled migrants to come and work in the UK. Therefore, if the migrant is already employed, their employer might wish to retain their skills and sponsor them for a Tier 2 visa.

It should be noted that this application cannot be made in-country and the migrant will have to return to the country of origin to apply. The general requirements for this route are:

  1. There is a genuine vacancy that cannot be filled by a UK or EEA workers;
  2. The minimum salary threshold is met (no less than £30.000 but can be higher depending on the actual position)
  3. With few exceptions, must be for a highly skilled position

There are far more technical details to the Tier 2 route that cannot be covered in this article.

Tier 4 (General) route

If the migrant is in education, it might be possible for them to get sponsored by their educational institution to continue their studies. Tier 4 (General) route is for overseas students wishing to study in the UK. Like Tier 2, application for Tier 4 will have to be done from overseas as it is not possible to switch to this category in country. 

Human rights applications -family and private life

In some circumstances the migrant might have established a strong family and private life in the UK either by virtue of the time spent in the UK or by virtue of the social connections accumulated. These can lead to grant of leave in the UK. Human Rights applications are very complex and require detailed assessment of all the circumstances. It will not be possible to offer a list of requirements for this.

Almost for all the above routes, to succeed, it is essential that the migrant has not overstayed. Therefore, making sure that you have applied for a leave to remain before your leave has expired (whether by curtailment or otherwise) is absolutely crucial.

There are numerous other routes that a person might qualify for depending on their country of origin, the reason for wishing to remain in the UK and other circumstances. It is therefore essential to have your situation assessed in detail as soon as it is becoming apparent that the relationship is not as strong as it used to be and the breakdown is imminent or even likely. In many cases there might be a need to safeguard your position under Family law or Immigration law, depending on the circumstances, before the other side of the proceedings can go forward.

RVS Solicitors are an innovative London law firm specialising in all Family and Immigration matters offering expert advice to public. We come highly recommended by our clients and other legal professionals. To speak to one of our specialist Immigration or Family and Divorce lawyers please CONTACT US or call us on 020 3372 5125.

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