I Have A Five Years Residence Permit Through My Partner, And I Have A Full-Time Job. In The Case Of Separation, Am I Classed As Illegal, And Can I Apply For ILR After Five Years?

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We receive many questions each month from migrants in the UK or planning to come in the near future. One recent question we received involves an individual from a country outside of the European Economic Area (EEA) who lives in the UK on a spouse visa. They have a full-time job but want to know whether they will become an illegal overstayer in the event of separation from their partner and whether they can apply for indefinite leave to remain.

Let's tackle each question in turn.

Will They Be Classed As An Illegal Overstayer?

The reality is that non-EEA spouse visa holders are only permitted to remain in the UK on the basis of their genuine and subsisting relationship to their British or settled partner. This does not mean that you will need to leave the UK immediately, but you will need to take action to secure your status.

The first thing you must do is inform the Home Office that your relationship has ended. If you don't do this, you may jeopardise your current position in the UK and any future application. The official guidance says that you must, Send an email to the Home Office to tell them that the relationship has ended. The email must include both you and your ex-partner's: name, date of birth, address, passport number, Home Office reference number. You must also inform the Home Office in the email the details of your children. The email must be sent to StatusReviewUnit@homeoffice.gov.uk with either a public statement or consent form attached. The public statement form should be used if you don't want the Home Office to tell your ex-partner any details from your email. The consent form should be used if you agree for the Home Office to tell your ex-partner details from your email.

You should also engage the services of immigration Solicitor who can provide support and expert guidance on your immigration situation.

Once the Home Office receives your email, they will send you a curtailment letter advising you that your visa has been cancelled and your leave has been curtailed. You will then typically be given 60 days to make a new application or leave the UK. The important point we must stress is that until you have a curtailment letter, and as long as you do not overstay the curtailment date on the letter, then you will not be an overstayer.

What Are The Visa Options Available?

There is a range of options available depending on the future plans of the individual, whether they have a child in the UK (and how long the child has been living in the UK), whether they have remarried, the type of full-time occupation they have, and how many years they have been living continuously in the UK.

The main options available are:

• ILR on the basis of five continuous years living in the UK on a spouse visa
• ILR on the basis of being a victim of domestic abuse while living in the UK on a spouse visa
• Tier 2 (general) work visa
• Family visa route - as a parent of a child living in the UK if they are a British citizen, are permanently settled, or they have been living in the UK for seven or more years continuously
• Family visa route - on the basis of your private life (this relies on Article 8 of the European Convention on Human Rights)
• An asylum application
• Ten year-long residence route

Given the range of potential options available, you should speak to your immigration lawyer before deciding which is best for you. If you can apply for ILR, this will be more beneficial than applying for a visa as a) you will not need to make any future visa applications as you will have the permanent right to live in the UK, b) you can claim benefits if required, c) you will not be subject to visa restrictions on how long you can remain and where you can work, and d) you will not need to pay £400 each year for the immigration healthcare surcharge; you will have full access to the National Health Service (NHS). In addition, with ILR, you will be able to apply to become a British citizen after just one year.

If you do not qualify for ILR under the five-year route (where you must have been in the UK continuously under the same visa type for five years), if you can show that you have been in the UK for ten years, regardless of the types of visa you held, you can apply under the long residence route.

Final Words

From the question provided, it is impossible to know the exact circumstances of the individual concerned. It must be said that this is not an unusual situation, as many non-EEA citizens who come to the UK to be with their British or settled partner get divorced but wish to remain here. The single best course of action to take even if you are thinking about separating from your partner and just want to know the best course of action is to speak to a specialist in immigration law. They will help you to secure the immigration status you need to remain in the UK no matter what happens.

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How long do I need to have been in partnership for to qualify for "retained right"?