If you are living in the UK under a spouse visa, it will be important to understand how your immigration status will be affected in the event you divorce or separate from your British citizen spouse or civil partner.
A spouse visa is the permission granted to a foreign national from outside the European Economic Area (EEA) or Switzerland to live in Britain with their spouse or civil partner. For your leave to remain to be valid, under UK immigration rules, you must remain in a genuine, subsisting and legally recognised marriage or civil partnership.
This means your spouse visa is reliant on your relationship with your UK partner. As such, if that relationship breaks down, you will no longer satisfy the eligibility criteria for this type of visa. In turn, you will no longer be entitled to live and work in the UK under your existing leave as a spouse.
You will be required to notify the Home Office of the relationship breakdown and your visa will be curtailed. Further, you will only have a relatively short timeframe to take steps to stay in the UK or face having to leave the country.
What if we separate rather than divorce?
To continue to be eligible for a spouse visa, you must be able to demonstrate that your relationship is genuine and subsisting. As such, it matters not whether you decide to separate or get divorced. The fact that the relationship has broken down, and that you no longer live together with your UK partner, will mean that you no longer qualify for a spouse visa.
If your former partner is a British citizen
To maintain lawful status in the UK, and where you are eligible to do so, you will need to apply for and secure leave to remain under a different type of visa, otherwise you will be required to leave the UK.
Your options to remain in the UK under a route will depend on a range of factors and your circumstances, which could include:
- Applying for indefinite leave to remain, ie; settlement in the UK.
- Applying for leave to remain under a family visa as a parent of a child who’s British, settled in the UK or has lived in the UK for at least 7 years
- Applying for a family visa based on your private life in the UK, for example, where you have lived in the UK for a long time
- Applying for leave to remain under a work visa
Given the impact that a divorce will have on your immigration status and the time pressures of securing new leave to remain, it is always best in these circumstances to seek specialist legal advice to ensure you understand all of your options and the process you will need to follow to make your application.
Spouse visa after divorce: UK settlement
Settlement in the UK will provide you with the rights to live, work and remain in the UK indefinitely on account of your own eligibility, and you will no longer rely on your spouse for your status. It will also provide a route to British citizenship.
If you have lived continuously in the UK for the qualifying period required as the partner of a British citizen or someone settled in the UK, you may be eligible to apply for indefinite leave to remain (ILR). In most cases, the qualifying period of continuous residence is five years. Further, in addition to the lawful continuous residence requirement, you may also need to satisfy what’s known as the ‘KoLL’ requirement, which is your knowledge of both the English language and of life in the UK.
This means you must be able to demonstrate a commitment to respect the UK’s laws, values and traditions, whereby the ability to communicate in English and have knowledge of UK life forms an integral part of this commitment.
Unless you are exempt by reason of age or otherwise, you can satisfy the KoLL requirement by proving your knowledge of English and passing a ‘Life in the UK’ test at an approved test centre.
You can prove your knowledge of English by providing evidence that you have an academic qualification that was either taught or researched in English, and is recognised as equivalent to a UK bachelors’ degree, masters’ degree or PhD, or that you have passed an approved English language test.
Spouse visa after divorce: parent route options
Alternatively, you may be eligible to remain in the UK under a family visa if you are the parent of a child living in the UK and either one of the following applies:
- The child is a British citizen
- The child has settled in the UK, for example, they have indefinite leave to remain, settled status or proof of permanent residence
- The child has lived in the UK for 7 years continuously and it would not be reasonable for them to leave.
However, to qualify, you must have sole or shared parental responsibility for the child, and where shared, the child’s other parent must be either a British citizen or settled in the UK, and must not be your partner.
In circumstances where the child lives with their other parent, you must have access to the child in person, as agreed with the other parent or via a court order.
In particular, you will need to demonstrate that you take an active role in your child’s upbringing and that you will continue to do so. You must also prove you have a good knowledge of the English language and can financially support yourself and your child without recourse to public funds.
That said, even where you do not meet these requirements, you may still be able to apply for leave to remain in the UK where your child is a British citizen or has lived in Britain for seven years and it would be deemed ‘unreasonable’ for them to leave. This is a highly complex area of immigration law, and you are advised to take guidance on your circumstances.
Spouse visa after divorce: family life options
You may also be eligible for leave to remain in the UK where you have lived in the UK for a long time period of time.
To apply by reason of family life, you must fall into one of the following categories:
- You have lived in the UK continuously for 20 years
- You are under 18 and you have lived in the UK continuously for at least 7 years, and it would be unreasonable to expect you to leave
- You are between 18 and 24 and you have lived continuously in the UK for at least half your life
- You are 18 or over and have spent less than 20 years in the UK, and would face significant obstacles to integration into the country you would have to go to if required to leave the UK, for example, you would be at real risk of prosecution or significant harassment and/or discrimination as a result of your sexual or political orientation or faith or gender.
However, if you are looking to remain in the UK on the basis of domestic violence, you will need to apply for leave to remain as soon as possible after the breakdown of the relationship.
Spouse visa after divorce: work visa options
The most common work visa is the Tier 2 (General) visa for workers who are from outside the EEA or Switzerland and have been offered a skilled job that meets the relevant suitability criteria in terms of skill and pay.
Under this category of visa you would need to score a total of 70 points, namely 30 points for being assigned a valid certificate of sponsorship by a licensed UK sponsor, 20 points for earning the appropriate salary for this category of visa, 10 points for proving your ability to speak English to the required level, and 10 points for being able to adequately maintain yourself in the UK.
Domestic violence exception
If the reason for the relationship breakdown is domestic violence, ie; where you have experienced domestic violence as the partner of a British citizen or someone settled in the UK, you may be eligible to apply for indefinite leave to remain. The basis of your application here can include psychological, physical, sexual, financial and emotional abuse.
Duty to notify the Home Office
In the event that you are living in the UK under a spouse visa, and you and your UK partner decide to divorce, you must inform the Home Office of the breakdown in your relationship.
If you fail to notify of the change in your circumstances, this may negatively impact on any further Home Office application you make for leave to remain, or settle, in the UK.
When you inform the Home Office of the breakdown in your relationship, and that you no longer qualify for leave to remain under a spouse visa, you will need to do so in writing including both your names, dates of birth, addresses, passport numbers and any Home Office reference number(s).
You must also include details of any children, including with whom they live, how much time they spend with you or your ex-partner, how much financial help you provide to one another, as well as the particulars of any court cases that you may be involved in over the children.
You should send your correspondence to the following address:
UK Visas and Immigration
Marriage Curtailment Team
New Hall Place
You will also need to enclose either a “public statement” form if you do not wish for the Home Office to inform your ex-partner of the contents of your letter or, alternatively, a “consent form” if you are happy for the Home Office to do so.
The public statement reads as follows:
“I, [name], confirm that my relationship with [name of estranged spouse partner] no longer subsists, that I do not live with them and that I do not intend to live with them as my spouse or partner in the future. I give my permission for the Home Office to use the information referred to above. I fully understand that by giving my permission, the information above will become known to [name of estranged spouse partner].”
The consent form, on the other hand, provides that:
“I, [your name], give my permission for the Home Office to use the information provided in my letter. I fully understand that by giving my permission, the information given in my letter will become known to [name of estranged spouse partner].”
If your former partner is an EEA national
Different rules currently apply if you a non-EEA national separating from an EU citizen in the UK.
If you were married or in a civil partnership with an EEA citizen for more than three years before divorcing, and you had previously cohabited with your EEA former partner in the UK for at least 12 months during your relationship, you may be able to apply for Retained Right of Residence if your former partner was exercising their Treaty rights in the UK during the three year period. You may also be eligible if you have custody or a right of access to a child you have with your EEA former partner. To apply for a five-year residence card on the basis of retained rights, you must complete application form EEA (FM).
How legal advice can help
If you have separated from your spouse and you are in the UK with a spouse visa, you are required to notify the Home Office and, where eligible, apply for a new visa under a different category. Without new lawful status, you will have to leave the UK.
A solicitor specialising in immigration can help if you are unclear about your options to remain in the UK after the breakdown on your relationship and the process to follow to make your Home Office application.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.