How can vulnerable individuals be protected financially when getting married and is a pre-nuptial agreement the answer?
As covered in our earlier blog on how separation and divorce could affect your right to remain in the UK, the breakdown of a marriage for a couple with an international background can be particularly difficult if one party relies on the other’s immigration status to stay here.
By way of example, under the European Union’s free movement legislation, a non-EEA spouse has permission to join or accompany their EEA spouse in any member state in which they are living and exercising their treaty rights. Children of the couple also have the right to live and be educated in that member state. Apart from in exceptional circumstances, family members of British nationals must apply to reside in the UK under a different regime.
EU legislation also allows, in certain circumstances, the non-EEA spouse to remain in that country despite the couple divorcing and the EEA partner potentially later moving elsewhere. The law is complicated, however, and difficulties can arise when the relationship between an international couple breaks down.
The Irish case of Kuldip Singh was heard in the Court of Justice of the European Union earlier this year and highlights some of the difficulties couples face. As mentioned, there are circumstances where a non-EEA citizen can remain in the EEA country after a divorce from their EEA spouse. However, the case of Kuldip Singh concerned EEA citizens who left Ireland and subsequently initiated divorce proceedings. The case made it clear that the timing of their departure and the initiation of divorce proceedings had an impact on the non-EEA national’s right to stay. As divorce proceedings started after the EEA spouse had left the UK, the non-EEA spouse could not retain their right to remain in Ireland under EU legislation.
With an increasing number of international couples living in the UK, the impact on their immigration status is a critical part of the advice we give our clients when they come to discuss their marital breakdown. Some clients can find themselves in a situation where their right to remain here will cease, but they are unable to leave the country quickly and children may be involved as well. As highlighted in the case of Kuldip Singh, the need for divorce proceedings to commence before the EU national leaves the country means that couples can also find themselves in the position that they have to start their divorce earlier than they wished and when they may not be emotionally ready.
We have set out below a few case studies to illustrate some of the challenges our clients are faced with where immigration and family law issues collide and need to be considered in tandem. These practical and emotional challenges are often compounded when children are involved.
Should you have any questions or be affected by any of the issues in the blog, please contact Connie Atkinson and Katie Newbury or a member of our family and immigration teams, who have extensive experience in advising international clients on divorce, children and immigration issues.
Case study 1 - American citizen wishing to relocate with her son to the US
Amanda is an American citizen who married Paul, who is British. They live in England with their young son. Their son is British. Amanda is on a 30 month spouse visa which expires in three months’ time. Amanda discovers that Paul has been having an affair and she wants to return to America to live with their son.
Amanda needs Paul’s permission to permanently remove their son from the jurisdiction of England and Wales. If Paul does not agree, Amanda will need to make an application for permission to the English court. The court process could take at least 6-9 months.
In respect of immigration, Amanda has a number of options. She can either make a discretionary application outside the rules to remain for the duration of the legal proceedings or leave the UK and return as a visitor as necessary for the hearings and to see her son. In our experience, discretionary applications can be approved and, even if refused, Amanda will be in the UK lawfully while the application is under consideration.
She could also make an application to remain as the parent of a British child and if she did choose to stay in the UK on a long term basis this would enable her to do so.
In our experience, it is highly unlikely that Amanda would want to leave without her son while proceedings were under way and our strong advice would be that she didn’t do so. It would therefore be important to discuss with Amanda which application would be most appropriate in her circumstances.
Given the tight timetable between now and the expiration of Amanda’s visa and her desire to return to the US as quickly as possible, she can ask the court for an urgent hearing in respect of the relocation application. Ideally, she would ask for her relocation application to be determined in a short timetable or, as an alternative, ask that she is given interim permission to leave (in time for the expiration of her visa) on the basis that she will return to England for the final hearing of her application in due course.
As part of the long-term considerations, if Amanda chooses to leave the UK and return as necessary as a visitor, she may wish to apply for a visitor’s visa. As an American she doesn’t need a visa but if she is entering the UK regularly for contact with her son and for court proceedings, it will ease her passage through immigration control.
Case study 2 - South African and German couple where EU national has left the UK
Robert is a South African national who met and married Helga, a German national, who was living in the UK at the time. They have been married for four years and lived in the UK during that time.
Robert comes to see us as his relationship with Helga has broken down and she has returned to live in Germany. Robert wants to know whether he can remain lawfully in the UK.
Robert holds an EEA Residence Card, which he obtained as a result of being married to Helga who was exercising treaty rights by working in the UK prior to their separation. We advise Robert that, if Helga has permanently left the UK and is therefore no longer exercising her treaty rights here, Robert regrettably no longer has a right of residence in the UK.
In theory, it is possible for the family member of an EEA national to retain a right of residence on divorce if the marriage has subsisted for three years and at least one year has been spent living in the UK. Unfortunately, however, this is only possible if the EEA national is still in the UK at the time divorce proceedings are initiated. As Helga has already left the UK and no proceedings have yet been brought, Robert is unable to rely on these provisions.
This was the clarification of the European Court of Justice in the case of Kuldip Singh. If Robert wants to remain in the UK, he will need to find an alternative basis to do so.
Case study 3 - Australian national living in UK as dependant on Tier 1 Entrepreneur visa
Dorothy and her husband Dave are Australian nationals. Dave is a Tier 1 Entrepreneur and Dorothy has leave to remain in the UK as his dependant. They have been here for four and a half years and will be eligible to apply for permanent residence in six months’ time. Dorothy regularly travels back to Australia where her elderly mother lives.
Dave has met somebody else and now wants to separate. Unfortunately, this means that Dorothy will not be able to apply for indefinite leave to remain or further leave as Dave’s dependant as it is a requirement to show the relationship is genuine and subsisting whenever making an application as a dependant.
As the relationship has broken down, Dorothy should avoid travelling until she is ready to leave the UK as she may be asked about her husband and may not be allowed to re-enter if she explains her relationship is no longer subsisting.
If Dorothy wishes to remain in the UK in the future, she will need to explore other options such as a sponsored Tier 2 worker and she would have to make an application from outside the UK to return under one of these categories. Under most categories, Dorothy would need to spend a further five years in the UK before becoming eligible to apply for indefinite leave to remain.
If Dorothy doesn’t wish to remain in the UK long-term, we would still need to advise her about her options to remain in the UK or enter as a visitor if she chooses for the divorce proceeding to take place here. Where she is intending to live long-term could also affect the outcome of any financial settlement linked to the divorce.
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