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How is immigration status impacting those who want a divorce

Written by
Kerry Smith, K J Smith Solicitors
Date of Publication:
05 July 2021

Even amicable breakups can be difficult. When the break-up involves one party who is in the UK on a spousal visa, the situation can become a whole lot more complicated. Although each case is individual, there are some key points everyone should know.

You need to get legal advice as quickly as possible

Remember, even if your divorce is amicable, the Home Office still has to allow you to stay in the UK. Getting a lawyer on the case is a hassle-free way to ensure that the right forms are filled in correctly and presented on time. Basically, it prevents your application from being declined for administrative reasons.

If your divorce isn't amicable then, quite bluntly, your immigration status may be used as a weapon against you. What's more, one of the harsh truths of divorce is that a divorce can start out amicable but end up rather less so. That's one of the many reasons why it's vital to get your own legal advice as quickly as possible.

Another harsh truth to keep in mind is that anyone can report your change of circumstances to the Home Office. That means even if you and your spouse remain on good terms, you may still fall victim to another "whistleblower".

Domestic abuse victims are protected

If you are the victim of domestic abuse, do not let fear of immigration stop you from taking action to protect yourself and, if necessary, your children. As a domestic abuse victim, you have the right to apply for indefinite leave to remain.

The modern definition of domestic abuse stretches beyond physical violence. Essentially, any form of excessively controlling behaviour is likely to be classed as domestic abuse. Of course, the challenge of dealing with non-violent forms of abuse is that it can be very difficult to prove that they occurred. Again, this is a strong argument for getting legal advice as quickly as you can.

Other routes to settlement

You may find yourself surprised by the number of options there are for settling in the UK without a spousal visa. Please note, however, that it is generally vastly easier to be accepted on any of these if you are currently in the UK legally.

In other words, do your level best not to remain in the UK without a valid visa. If you do, however, then, again, get legal advice as quickly as possible. The situation may be redeemable but it would need to be managed with great care. This is where legal advice can be invaluable.

The main routes to settlement for most divorcing spouses would be indefinite leave to remain or family life. If you have lived in the UK for at least five years, then you would probably be a very strong candidate for indefinite leave to remain. If you are the parent of a qualifying child under 18, you would probably be a very strong candidate for family life.

If neither of these applies, you may be able to remain on a work (or study) visa. You could potentially then convert this into indefinite leave to remain. Alternatively, you can request leave to remain based on your human rights. For this, you would need to demonstrate strong ties to the UK but you do not need to have family here.