The breakdown of a relationship between a couple where one partner is sponsoring other for immigration/visa purposes can cause complex immigration issues. In the event of divorce, separation or dissolution of civil partner a Non-EEA dependant is in a vulnerable position and his/her leave to remain can be curtailed.
A non-EEA dependant may apply for discretionary leave to remain or settlement if either of the following applies;
- The applicant is a victim of domestic violence (Domestic abuse can include, but is not limited to, the following:
- Coercive control (a pattern of intimidation, degradation, isolation and control with the use or threat of physical or sexual violence)
- Psychological and/or emotional abuse
- Physical or sexual abuse
- Financial abuse
- Harassment and stalking
- Online or digital abuse
- The applicant has a child who is British or an EEA national
- The applicant could face a serious health risk or life threat while returning to Home country
Victim of domestic violence
A person who is living in the United Kingdom as a spouse, civil partner or unmarried partner of a British Citizen or person settled in the UK, whose relationship has recently broken down permanently as a result of domestic violence, may be able to apply for Indefinite Leave to Remain in the UK (settlement).
If such a victim of domestic violence meets the requirements and is able to provide the necessary documentary evidence to prove that the main reason for the breakdown of their relationship was due to domestic violence, they would be granted settlement in the UK.
Documentary evidence may include a non-molestation order, occupation order or other such evidence.
- Apply for a 3-month extension to your current visa and access to public funds (benefits) – do this if you’re struggling with money (it’ll help you support yourself before you apply for indefinite leave to remain)
- Apply for indefinite leave to remain (ILR) – this is more complicated but if you’re successful, will be worth the extra time and effort
The fees as of today to apply for settlement are £2,389, however, you can apply for fee exemption if they don’t have a permanent source of income or sufficient funds available in their account.
Parent of a Child
In the event of a relationship breaks and you are the parent of a British or Settled Child, you might be able to apply for discretionary leave to remain in the UK.
To apply under this category your child will need to be under 18, living in the UK and be either British/EU national or hold Indefinite Leave to Remain/Permanent Residency.
For the purposes of this application either of the following can be considered a parent:
- The stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership;
- The stepmother of a child whose mother is dead and the reference to stepmother includes a relationship arising through civil partnership;
- The biological parent of the child (regardless of whether parents were married together or not)
- Genuine transfer of parental responsibility, in cases where the child is born in the UK but is not a British Citizen;
- An adoptive parent.
The fees as of today are £1033 plus £500 immigration health surcharge however you can apply for fee exemption if they don’t have a permanent source of income or sufficient funds available in their account. Please refer to our previous post on fee exemption for further details.
Retained rights application if married with an EEA national
If you are married to an EEA national, you may be qualifying for retained rights of residence under EEA regulations. To qualify you have to demonstrate that the marriage with an EEA national lasted for a minimum of 3 years before divorce proceedings have started and that you have lived together for at least 12 months in the UK.
Note: Minimum marriage period of 3 years does not apply if you are a victim of domestic violence.
Additionally, you must provide evidence that your ex-spouse/ partner was exercising treaty rights in the UK at the time divorce was initiated. This means the EEA national was working, studying, in receipt of job seekers allowance, retired (but worked for 12 months) or had comprehensive sickness insurance (if studying or claiming to be self-sufficient).
The application has a Home Office fee of £65
Tier 2 General Visa
In the event of a breakdown of marriage, separation or dissolution of civil partnership switching on to work permit is not often considered as your spouse needs to be a settled person in the UK. However, if you have a valid job offer from a licensed sponsor it may be possible to switch visa within the UK.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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