Divorce or Separation: Impact on Leave to Remain
January is often referred to as the ‘divorce month’ and according to recent reports 8th January is a popular day to dissolve marriages. There are many who are in the UK with leave to enter or remain and are dependent on their relationship or marriage or civil partnership. What happens if this applies to you and your relationship permanently breaks down? What action do you need to take if you separate or get divorced? What are the implications of a relationship breakdown and can you remain in the UK?
The article focuses on Appendix FM of the Immigration Rules. Different considerations will apply to other categories.
Notifying a Change in Circumstances
If your relationship breaks down and you are in the UK as a partner or spouse on the 5 or 10 year route to settlement, if you do separate or divorce you will be unable to extend your leave in this category. This is because you will not be able to demonstrate that you remain in a genuine and subsisting relationship, as is one of the requirements.
If your leave to enter or remain is based on your relationship you must therefore inform the Home Office when you divorce or permanently separate from your partner. You should not wait until you divorce to do so. You will either then need to apply for a new basis to remain in the UK or leave the UK.
In the first instance you should write to the Home Office informing them a relationship has ended and you will need to include full personal details of both yourself and your ex-partner. If you have children you must provide their details, care arrangements, financial information and details of any court cases.
The Home Office ask that either of the following forms are completed:
- public statement if you don’t want the Home Office to tell your ex-partner any details from your letter.
- consent form if you’re happy for the Home Office to share details with your ex-partner.
It is also possible for your ex partner to report a change in circumstances to the Home Office in the same way.
Correspondence needs to be sent to: UK Visas and Immigration, Marriage Curtailment Team, 7th Floor, The Capital, New Hall Place, Liverpool, L3 9PP.
Our previous knowledge centre post Curtailment of leave to remain examined the procedure and implications when leave is curtailed.
The procedure following a breakdown in relationship is set out in the Home Office Curtailment guidance (version 18.0, published on 19 December 2019). This reads at page 47-48 that:
“You must curtail a migrant’s leave following the breakdown of a relationship to 60 days unless:
- they have less than 60 days leave remaining
- there are exceptional circumstances which mean it is appropriate to curtail leave with immediate effect
- there are exceptional reasons to exercise discretion when curtailing so that the migrant has more than 60 days leave remaining, for example the migrant is due to have essential hospital treatment in 60 days time and requires an additional period to recover before they can travel”
There are some circumstances where the Home Office may consider it appropriate to immediately curtail, at page 48 of the guidance:
“Exceptional circumstances that may justify immediate curtailment include either:
- allegations that the UK settled sponsor has been the victim of domestic violence
- the migrant has a history of immigration abuse
- other cases involving serious non-compliance or risk”
The guidance continues at page 47 by stating that:
“You must not curtail if:
- leave is to be curtailed to 60 days but the migrant has less than 60 days leave to enter or remain left, unless there are exceptional reasons why immediate curtailment is appropriate
- there is a reliable indication that the migrant has been the victim of abuse or domestic violence at the hands of the UK spouse or partner”
Page 48 of the guidance sets out when it may not be appropriate to curtail leave:
“If the migrant has claimed to have been a victim of domestic violence from their UK settled partner or a member of their partner’s family it may not be appropriate to curtail the leave.
You must check CID records to establish if the migrant partner has claimed to be a victim of domestic violence and if they have applied for leave on this basis. If there are records of this on CID you must refer the case to a senior caseworker and contact the team dealing with the application for leave.
If the migrant has not applied for leave on the grounds of being a victim of domestic violence their leave may be curtailed to 60 days to allow them a reasonable period to apply for leave on that basis”.
It is therefore likely that, unless there is domestic violence in the relationship or the Applicant has less than 60 days left on their leave to remain, leave will be curtailed to 60 days.
It is therefore important to consider whether to make submissions when notifying a change in circumstances, so the Home Office can fully consider whether to curtail your leave.
The 60 days gives an Applicant an opportunity to consider and make an application to regularise leave to remain.
Domestic Violence Application
Appendix FM, section DVILR, of the Immigration Rules sets out the requirements for an application for indefinite leave to remain (settlement) as a victim of domestic abuse.
The definitions are set out in the Victims of domestic violence and abuse Version 14.0, published on 05 February 2018.
“Domestic violence: Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. This can include, but is not limited to, the following types of abuse:
Other forms of abuse can include controlling behaviour and coercive behaviour.
Further Applications – Regularising Leave to Remain
If your leave has been curtailed and you have 60 days in which to regularise your stay you will need to consider what application you may be able to make from within the UK. Some applications will have restrictions on switching in-country so you will need to check.
You may wish to consider if you can apply to for leave to remain on the basis of work, you may be eligible to settle in the UK, or alternatively you may be able to apply for remain on the basis you are the parent of a child who is British, settled or lived in the UK for at least 7 years or based on your private life. It is possible you have lived in the UK for 20 years or more or there are ‘very significant obstacles to you returning’ to the country you would need to return.
Contact Our Immigration Barristers
For expert advice and assistance with notifying the Home Office of a change in circumstances or for advice on curtailment or how to regularise your stay please contact our Barristers on 0203 617 9173 or complete our enquiry form below.