Can I Stay in The UK If I Divorce?

Ending your marriage does not have to mean the end of your life in Britain. Sadly, many UK Spouse Visa holders fear leaving their marriage, believing they risk losing their home and children. As we shall see, this is not the case; however, without robust legal guidance, it is easy to find yourself having no legal right to live and work in the UK. Therefore, it is vital to talk to an immigration solicitors before you end your relationship.

Your right to remain in the UK on a Spouse Visa ends upon separation

To legally live in Britain on a Spouse Visa, you must be in a "genuine and subsisting marriage or civil partnership" (the latter applies to Civil Partnership Visas). The mistake made by many is they think that their marriage ends upon divorce. For most other legal purposes, such as financial support, this is true. However, under immigration law, the right to live and work in the UK on a Spouse Visa ends upon separation.

You have a legal duty to notify the Home Office if you have a UK Spouse Visa and your relationship ends. Upon being informed, UK Visas and Immigration (UKVI) will curtail your visa (i.e. shorten your leave to remain in the country).

"So, what if I just stay quiet?" you ask.

Don't risk it. It only takes a disgruntled neighbour or work colleague or an innocent comment on a government form to expose you. And if UKVI find out that you are not in a "genuine and subsisting marriage or civil partnership" but still on a Spouse Visa, the consequences will be grave. Such actions amount to fraud and can result in you being removed and not able to return to Britain for many years. Unfortunately, this has happened to many people who have children. You will not be treated leniently.

Always fully disclose to the Home Office changes in your personal circumstances.

There are ways you can stay in the UK if you separate from your spouse:

1. If you have lived in Britain on a Spouse Visa for five years, you can apply for Indefinite Leave to Remain (ILR). You will need to meet the continuous residency requirements, English language requirements, and pass the Life in the UK Test.
2. If you have sole or shared responsibility for your child/children, you can apply for a Family Visa as the parent of a British child or a child who is settled in the UK or has lived in the UK for at least seven years.
3. Secure a Tier 2 (General) Visa by getting your employer to sponsor you. Your employer will need to apply for a Sponsor Licence (if they do not already have one). Depending on your role, your employer may need to conduct a Resident Labour Market Test before offering you a Certificate of Sponsorship. This can be a tricky process; therefore, it is advisable that you and your employer work with an immigration lawyer to get the best result.
4. Apply for leave to remain on the bases of private life. You can qualify for this if you have lived in the UK for 20 or more years (not counting any time spent in a UK prison). However, leave to remain may be also granted if you have lived in the UK for less than 20 years and there would be "very significant obstacles" to your ability to integrate into the country to which you would have to go if required to leave the UK.

An examination of the Immigration Guidance shows that, like all routes which rely on a caseworker's discretion, to succeed under point number 4 is not easy. For example, the guidance states:

"Where there are no family, friends or social networks in the country of return that is not in itself a very significant obstacle to integration - many people successfully migrate to countries where they have no existing ties."

"If an applicant has never lived in the country of return, or only spent their early years there, this will not necessarily mean that there are very significant obstacles preventing them from integrating particularly if they can speak a language of that country".

And even if they cannot speak the language,

"...this will not in itself be a very significant obstacle to integration unless they can also show that they would be unable to learn a language of that country, for example because of a mental or physical disability".

Few people would succeed in an application under point 4 without professional legal assistance.

Domestic abuse

No one should be forced to stay in a relationship where domestic abuse is present. UKVI is permitted to grant ILR to victims of domestic violence who leave their relationship if they are on a Spouse Visa. Make sure you support your application by gathering as much evidence of the abuse as possible, such as police reports, medical reports, threatening messages etc.

If you are suffering from domestic abuse, please call Refuge on 0808 2000 247 (24 hours).

Non-EU/EEA nationals divorcing an EU/EEA National living in the UK

If you are in the UK as the family member of an EU/EEA national and your relationship breaks down, you may be able to remain in the country under a Retained Right of Residence. You will need to have been married for three years to qualify or have resided in the UK with your spouse for at least one year prior to separating. Furthermore, the EU/EEA national must be a 'qualified person', meaning they are exercising their Treaty rights by either working, studying, being self-employed, or they are self-sufficient.

To apply for Retained Right of Residence, your marriage must be formally dissolved by the Courts. You can remain in the UK, even if you are separated as you are still recognised as an EU/EEA citizen's family member.

At 11pm on 31 January 2020, the UK officially leaves the EU. However, these rules will apply during the transition period which runs to December 2020.