by Matthew Cranton
There are a number of ways in which immigration law and family law cross paths. Any transnational family relationship will carry the potential for immigration issues, and this is likely to become more relevant following the end of freedom of movement for EU nationals in the UK as a result of Brexit.
An individual’s immigration status is vital in allowing them to live in the UK, and their particular status can affect their right to work or to rent in the UK.
Below are some of the more common immigration issues that arise for family lawyers, and a few tips on handling these situations.
Partner visas – the effect of divorce
The most common immigration issue asked of family lawyers is whether their client’s immigration status in the UK (usually where the client holds either a Partner/Spouse visa or a dependant visa) will be at risk as a result of the separation or divorce. Whether they are at risk, and further whether there will be options available to protect their status, will depend on their circumstances.
For Partner visas, there is a positive obligation on both the visa holder and the spouse to report a change of circumstances, which may include a separation or divorce. It is not necessary for the divorce to have reached the decree absolute stage, though there is an argument that whilst there remains a potential for resolution there continues to be an excuse for not reporting the separation – in certain cases this may mean reporting is not necessary until the divorce is official, though individual circumstances should be considered (for example if the couple have not lived together for some time).
Once advised of the split, the Home Office may take steps to curtail the visa holder’s leave. This will usually be cut to 60 days, unless the visa would ordinarily expire in this time in any event. The 60 days will run from the notification of the curtailment, rather than 60 days from the report of the split; it is unlikely (but not impossible) that the Home Office will immediately take steps to curtail the leave on receipt of the report.
During the remaining period of the visa (whether curtailed or not), the visa holder may apply for an alternative visa, based on their eligibility. This may include finding a job that will sponsor them, applying under the domestic abuse route (see below), or If they are not eligible for any type of visa, they may use this time to make arrangements for a voluntary departure from the UK.
It is vital that family lawyers understand the implications of the divorce on the immigration status of the affected spouse, whether they are their own client or not, as this may also affect issues regarding finances, assets and children. Taking early advice on these implications and the options available in the event of a split can provide some assurance to the parties, or otherwise prepare them with the reality of the situation they will face, but in either case it is essential for the purpose of negotiations on finances and parental access that the parties know where they stand on their right to remain in the UK.
Those who have been the victims of domestic violence and abuse, and were previously granted a Partner visa (i.e. as a spouse, civil partner, or unmarried partner, of a British citizen or settled person), may be eligible to apply for indefinite leave to remain.
Those victims who do not have sufficient money to support themselves whilst applying may apply for permission to claim benefits for up to three months without affecting their eligibility for settlement, which usually prohibits recourse to public funds. This is known as the destitution domestic violence (DDV) concession.
Evidence of domestic violence and abuse will inevitably vary from case to case. The Home Office guidance regarding domestic violence specifies the value caseworkers should give to different types of evidence (the list below is a non-finite list of examples):
- Conclusive: criminal convictions; police cautions; non-molestation or occupation orders in which there is a finding of fact recorded on the final order.
- Strong: MARAC referrals; domestic violence protection orders; prohibited steps or contact orders (if domestic violence was a factor in granting the order); letters from social services or domestic violence victim support organisations (including refuges) – note that a letter from an advice agency or refuse simply repeating the applicant’s account will generally not be considered strong evidence and would need to be considered in light of the other evidence available.
- Moderate: ex parte orders; interim orders; undertakings to court; police report of attendance at a domestic violence; medical reports.
- Weak: statement from the applicant; power of arrest; photos, texts or other such evidence repeating the applicant’s account of domestic violence – photos may be linked to medical reports.
All evidence will be considered together, so the absence of conclusive or strong evidence will not itself mean the application will fail. However, legal advice should be sought to consider the strength of the application under the domestic violence route, and further evidence collated if necessary. If the evidence is not sufficient, alternative visa routes may need to be considered.
Transnational marriage abandonment
There are some occasions in which a partner will either be brought to the UK or marry outside of the UK with a promise to be brought to the UK, only to be abused and abandoned by her spouse or their family. This may force the individual to flee within the UK, or result in her spouse abandoning her in her home country (perhaps having been taken there under a false pretence) whilst he revokes her visa or refuses to sponsor her travel to the UK. This is known as “transnational marriage abandonment”. This will often also be connected to a separation of the mother from her children by the spouse or his family. They may also involve cases of violence against the individual and/or forced domestic servitude.
There is currently no specific immigration exception or route available for victims of transnational marriage abandonment beyond the ordinary applications under the domestic violence provisions mentioned above. This can cause issues of eligibility, particularly where the individual is no longer in the UK.
It is generally expected that the consent of both parents is given for any UK visa application by or on behalf of a child, or for an application for registration of such child as a British citizen. However, there are circumstances in which the absence of consent from one or even both parents is not prejudicial. In particular, consent is not mandatory for an application for registration as a British national by either (a) a minor born in the UK whose father or mother subsequently becomes a British citizen, settles in the UK (i.e. obtains permanent residence) or becomes a member of the armed forces, or (b) a person who lived in the UK for the first 10 years of their life, as long as they were not absent from the UK for more than 90 days in each of those years.
A common requirement of visa applications for children, particularly in relation to dependant visas, is proof of responsibility for the relevant child, i.e. that the child lives with the applicant, who if financially supporting them and is responsible for key aspects of the child’s life (e.g. schooling). It is therefore recommended that any arrangements regarding parental access and/or parental responsibility relevant to a separating or divorcing couple for whom immigration may be an issue be clearly formalised and recorded; informal arrangements may ultimately be difficult to prove if one of the parents subsequently becomes uncooperative.
Separated partners can often be hesitant about providing documents that assist their children in visa or registration applications, often due to mistrusting the former partner who may be handling the application. Engaging a solicitor to assist with the application can often provide reassurance to the other partner that the documents will be handled responsibly, confidentially and only for their intended purpose.
Parents who are British citizens or settled in the UK and who are adopting a child from overseas need to ensure that the child has leave to enter and remain in the UK before bringing them to the country. Adopters will generally receive assistance from their adoption agency and/or their local authority to ensure the immigration paperwork is completed. There are a number of routes available to ensure an adopted child may come to the UK, including in cases of “de facto adoptions” where parents living overseas have cared for a child in an adoptive way but without access to a legal system in which formal adoption can take place.
If a child in the UK is close to the age of 18 and obtained leave to enter the UK under a category unconnected to adoption, and is then named in an application for adoption made to the Family Court, the Home Office may be notified and may intervene. This is to avoid adoption being used as a mechanism to acquire permanent residence or British citizenship when the adoption was not the intention of their original entry clearance. The Home Office will consider whether the adoption is genuine, and in such circumstances family lawyers may wish to consider collating additional evidence regarding the adoption as a precaution, including a reasonable explanation regarding the timing of the application.
Prior to Brexit, anyone of any nationality married to an EEA or Swiss national could remain in the UK as the spouse of someone exercising Treaty Rights (i.e. an EEA or Swiss national who was working, studying, job-seeking or self-sufficient in the UK). Those who were in the UK on this basis prior to 31 December 2020 were eligible under the EU Settlement Scheme for either pre-settled status (if they have been in the UK for less than five years) or settled status (if they have been in the UK for five years or longer). Spouses and children were also required to apply. Applications under the EU Settlement Scheme were to be submitted by 30 June 2021, but those who have missed the deadline may still apply and have their applications dealt with, though they should avoid any further delay to their application.
From 1 July 2021, European nationals and their family members entering the UK without settled or pre-settled status will be subject to the same rules as non-European nationals, and so will generally require a visa. Non-European nationals who are considering divorce and who are in the UK on the basis of their marriage to an EEA national will also be subject to the new visa requirements unless they have obtained their settled or pre-settled status prior to the separation.
Options for remaining in the UK following divorce:
There are a number of routes available for remaining in the UK, though eligibility for any particular visa will depend on an individual’s circumstances. Prospective divorcees therefore may wish to consider whether they are eligible for the following common options:
- Naturalisation as a British citizen – this will generally require the applicant to have indefinite leave to remain for one year, and to have lived in the UK for five years without a significant amount of absence. For those married to British nationals, the one year requirement for ILR is disapplied and the time required in the UK is shortened to three years, though the Home Office will expect the marriage to be genuine and continuing, so this is unlikely to apply where divorce proceedings have begun;
- Indefinite Leave to Remain – this will generally require the applicant to have been in the UK for a prescribed period on a relevant visa, unless the applicant is the victim of domestic violence. The prescribed period is most commonly five years, though the relevant period will depend on the type of visa held;
- Family visa – it may be possible to remain in the UK if the applicant has a minor child in the UK who has their own permission to stay in the UK;
- Skilled worker visa – the applicant may wish to ask their employer to sponsor them for a Skilled Worker visa, or otherwise change job to obtain such sponsorship. Sponsorship is reserved for skilled roles, and so will not be available for those employed in unskilled work.
- Study visa – applying for a course with a registered educational establishment may allow the applicant to remain in the UK, but will limit their ability to work (usually to no more than 20 hours during term time).
There are some other options available for wealthier applicants, such as a Tier 1 (Investor) visa for those with £2m available to invest in UK companies, or for those with unique, innovative and viable business ideas who can get endorsed for either a Startup or Innovator visa.
At Fletcher Day, our immigration lawyers are experienced in all aspects of family immigration, and regularly work with our divorce and family lawyers and their clients regarding entry clearance, immigration status, child visas and British nationality, and in particular the implications of a separation or divorce on an individual’s right to remain in the UK.