The Immigration Rules meet the Law Commission
The decision to divorce is never an easy one. By its very nature such decisions can often be emotionally charged and made in haste. If the relationship involves a couple with international roots outside of the UK and the EU, there are a number of important considerations to be had before deciding to start divorce proceedings.
One crucial issue, which is often overlooked, is how the couple’s immigration status may be affected following their decision to separate and potentially divorce.
In many cases, one spouse will be the main visa or immigration status holder and the other will be granted a visa as a dependant. The ability to remain in the UK and to maintain continuity for the family, particularly where young children are involved, is often an important consideration in a relationship breakdown.
With increased globalisation comes the upward trend of international marriages and cultural integration. The Office of National Statistics recently reported that around two thirds of new-born babies in London are born to at least one foreign parent. London, in particular, is seeing a growing number of foreign couples marry in the UK and an increasing number of foreign spouses join their partners in the UK. One reason behind this is due to migration. Marriage tends to follow migration and international couples in particular are more likely to marry to make migration easier amongst other reasons.
What, therefore, should foreign spouses living in the UK be thinking about before deciding whether to separate and divorce - and what can be done to avoid prejudicing a spouse who may have a dependant visa or immigration status?
Very often, divorcing or separating spouses and partners are unaware that their immigration status may be affected by the breakdown of their relationship. For example, the dependant partner of a French citizen, who qualifies to live in the UK on the basis that his or her partner is exercising rights under European free movement law, should be aware that this status is dependent upon maintaining their relationship. If the relationship breaks down, they may no longer qualify in the same category and may need to look at qualifying and applying for a UK visa in an independent visa category. The relevant type of visa will depend on the individual’s particular circumstances.
This issue was recently highlighted in the media in relation to the case of an Australian divorcee. According to the press reports, she was a therapist who had been working within the NHS for many years. She had originally migrated to the UK as the spouse of her Italian husband. Following the breakdown of the relationship, she allegedly tried to extend her UK immigration status but ran into difficulties and was reportedly asked by the Home Office to leave the UK within 28 days.
Practical steps and options available for potentially affected migrant spouses
Seeking early advice before making any decisions is always advisable to ensure that the affected spouse/partner's immigration status is regularised and addressed on an independent basis in the event of a relationship breakdown. Appropriate (and often time sensitive) action will need to be taken to avoid any immigration issues. The immigration status of any non-EEA national children will also need to be considered and addressed.
The options will very much depend on the spouse or partner’s circumstances, including but not limited to considerations as to whether or not the migrant spouse is employed or intends to be employed in the UK, and whether or not they have access to funds for investment, as an alternative immigration route.
For instance, one option for the spouse of an investor migrant following a divorce may be to make his/her own independent investor visa application. The impact of possible immigration issues may, therefore, also feed into the family lawyer’s advice and negotiations relevant to the financial settlement. Lump sums may be required to assist one or other of the divorcing spouses with an alternative UK immigration application.
The new Immigration Bill, currently making its way through parliament in the UK, proposes changes to rights of appeal. If the changes are implemented as currently drafted, they will severely restrict rights of appeal, making it even more important for divorcing couples to take the correct action from the outset and not be delayed by a potential declined application for UK residency. That said, in most cases involving family life and young children, human rights grounds are likely to be relevant and could still form the basis of a possible appeal.
In summary, spouses and partners contemplating relationship separation and/or divorce should seek early family and immigration law advice to ensure that appropriate (and early) action is taken, not only to help facilitate the separation and all ancillary issues arising from it but, crucially, to establish the impact on theirs or their partner’s/spouse’s immigration status. Taking these diligent steps can help to minimise the disruption and upheaval for the family at a difficult time.
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