Indefinite leave to remain after divorce – what are the options? banner


Indefinite leave to remain after divorce – what are the options?

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divorce is one of the most stressful times in anyone’s life – but combine divorce with concerns over Immigration status, and whether you talk to divorce lawyers in London or a UK Immigration lawyer they will all acknowledge that this will add an extra layer of complexity to your situation. Apart from considerations of the financial settlement and arrangements that need to be made regarding the care of any children, the question of Immigration status, and whether it is possible to obtain Indefinite Leave to Remain after divorce, must be a primary consideration. So fundamental is this that, if you find yourself in this situation, it’s sensible to work with a solicitor who can advise on both divorce and Immigration.

How does divorce affect Immigration status?

Someone who has come to the UK on a family or spouse visa will find that they no longer have the right to be in the UK if the marriage ends. The same is true for those in a civil partnership. If the relationship has broken down, the primary reason that person is allowed to be in the UK is no longer in existence. If your visa is dependant on your relationship, you must tell the Home Office if you separate or divorce in writing, providing information about you and your ex-partner. You must then consider your position in respect of your Immigration status, and whether you can remain in the UK, or if not, what steps you need to take to remain (if that’s what you want to do). At this point, advice from an experienced divorce and Immigration lawyer will be essential, particularly one who can advise on Indefinite Leave to Remain after divorce.

Routes to Indefinite Leave to Remain after divorce

Indefinite Leave to Remain after divorce will depend on a number of factors. The rules around settlement in the UK are complicated and it’s worth exploring all the possibilities that could apply to your situation.

Retained rights of residence for the partner of an EEA/EU national

The concept of retained rights of residence applies to non-EU citizens who were married to an EU citizen who exercised their EU Treaty rights of free movement in the UK. You must be able to show that you were married for at least 3 years and spent at least 12 months living in the UK.

To rely on your retained rights of residence, it’s vital to make your application before the divorce is finalised. This is just one example of why early advice from someone experienced in both divorce and Immigration is vital. Someone may be the best divorce lawyer in the UK, but if they are not aware of the relevant Immigration provisions, you may miss out on important rights. The application for retained rights of residence must also be made while the ex-spouse is still in the UK.

An application to stay in the UK based on retained rights of residence requires significant documentation in order to prove various aspects of the claim, and some who are entitled to rely on this route fail to do so because they cannot gather together the necessary documentation. You may have to ask for much of it from your ex-partner, and this can cause significant issues, particularly in the case of an acrimonious break up.

Parent of a British child or settled child

Another option to remain in the UK and seek Indefinite Leave to Remain is as the parent of a British child or a child settled in the UK. The child must be under the age of 18 and living in the UK and either be British or be settled in the UK (holding Indefinite Leave to Remain or permanent residence). Parental responsibility is a vital aspect of the application, so it will be important (as with a retained rights of residence application) to have adequate documentation to demonstrate your parental responsibility for the child concerned.

Certificate of Sponsorship under the Tier 2 route

If you are a skilled worker, you may be able to secure Employment with an employer who has a Sponsorship Licence and can issue a certificate of sponsorship to allow you to obtain a Tier 2 visa. This allows you to work in the UK, and provide you are earning above the salary threshold, you can apply for Indefinite Leave to Remain after 5 years. A point to remember about Tier 2 visas is that they can usually only be extended for up to 6 years – at this point, if you have not successfully applied for settlement, you may have to leave the UK.

I0 years’ residence in the UK

If, prior to your divorce, you have lived in the UK legally for 10 or more years, you may be in a position to apply for settlement based on long residence. Settlement is only available to those who can demonstrate sufficient knowledge of English and who pass the Life in the UK test. You must also be able to provide documentary evidence of the visas that allowed you to be in the UK for the 10 (or more) years.

It’s important to fully explore the options that are open to you at an early stage if your relationship has broken down and you are facing divorce. Failing to address Immigration issues can lead to complications further down the line, and may even mean you miss out on a route to Indefinite Leave to Remain that was open to you.

OTS Solicitors are dedicated family and Immigration lawyers, highly recommended in the Legal 500 for Immigration and Human Rights matters. We will ensure that your Immigration status receives the attention it deserves, as well as supporting you through divorce. To discuss your situation in confidence with one of our Immigration and divorce lawyers, call 0203 959 9123 today.

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