No-Fault Divorce and Applying for Indefinite Leave to Remain After Domestic Abuse
The introduction of no-fault divorce has been in the news over the last couple of weeks. It is described as a bit of a gamechanger as it removes blame from divorce proceedings. You no longer need to say your husband or wife has behaved unreasonably to get divorced so divorce applications won't contain allegations of domestic violence anymore. In this blog our specialist immigration solicitors and divorce lawyers look together at the implications of no-fault divorce for those who are divorcing and one spouse is in the UK on a spouse visa.
UK Online and London Immigration Solicitors and Indefinite Leave to Remain Lawyers
On a spouse visa and want to stay in the UK after a divorce
If you are here in the UK on a spouse visa you don’t have the automatic right to stay in the UK after you separate from your husband or wife. That can be tough to hear if you had planned a life in the UK and you are now not only going through a separation but your immigration status is also in question.
There are a couple of immigration options that you can consider:
- If your relationship broke down because of domestic violence you can apply for indefinite leave to remain in the UK even if you don’t meet the five year residence requirement for an ILR application
- You can switch visa to a different type of visa, such as a skilled worker visa
- If you are the parent of a British child other options may be available to you.
You should not let your spouse visa lapse by doing nothing as that will affect your immigration record. Under your spouse visa conditions you are under an obligation to let the Home Office know if you split from the husband the wife who sponsored you on your spouse visa. That’s why if you separate whilst on a spouse visa it is best to get specialist immigration legal advice and divorce advice.
Applying for indefinite leave to remain after a divorce
The Home Office offers a concession for those in the UK on a spouse visa who end a relationship because of domestic violence. The concession means that whilst you still need to meet the general eligibility criteria the Home Office waives the requirement to have lived continuously and lawfully in the UK for at least five years. In addition, when applying for indefinite leave to remain using the domestic violence concession you do not need to sit an English language test or complete the Life in the UK test.
The Home Office has issued guidance on how Home Office officials should assess an application for indefinite leave to remain based on the domestic violence concession and the evidence the officials should take into account when looking at domestic abuse allegations.
Some people who are in the UK on spouse visas are questioning how they can prove their relationship broke down because of domestic violence when it is no longer possible to start divorce proceedings based on the unreasonable behaviour of their husband or wife. Indefinite leave to remain lawyers stress that the introduction of no-fault divorce should not make it any harder than it previously was to secure indefinite leave to remain using the domestic violence concession. That’s because the Home Office did not place much evidential value on a divorce application containing an allegation of domestic violence unless, for example, the divorce proceedings were contested and a family judge made a finding of domestic violence after evidence and a contested court hearing.
Evidence to prove domestic violence for an indefinite leave to remain application after your divorce
If you can't rely on your divorce application as your evidence of domestic abuse then what evidence does the Home Office accept? The answer is that Home Office officials are given guidance to accept a wide range of domestic abuse evidence but the guidance emphasises that not all evidence of domestic violence carries the same probative weight.
- A criminal conviction for assault carries conclusive weight
- A finding by a family court of domestic violence after contested injunction application proceedings is of significant weight
- A police call out to an incident of domestic abuse that does not result in a charge or caution does not carry as much weight as a spouse being convicted of an offence.
It can be tempting to produce lots of statements in support of an indefinite leave to remain application based on the domestic violence concession but it is best to consider the quality of the evidence. For example, statements from friends or domestic violence agencies won't be of much help if they are simply reporting what was said by you to them about your experiences of domestic violence.
If it is difficult to get independent evidence of domestic violence then it is best to talk to your immigration solicitor about how you should explain that to Home Office officials as it is accepted that it isn’t always easy to get independent evidence of domestic abuse given the nature of domestic violence and coercion.
Domestic abuse and indefinite leave to remain applications
At OTS Solicitors, our indefinite leave to remain lawyers work with our divorce solicitors and so have a thorough understanding of what amounts to domestic violence or domestic abuse for the purposes of family law proceedings and indefinite leave to remain applications. The definition of domestic abuse is very wide and includes:
- Physical and sexual abuse
- Emotional and psychological abuse
- Financial abuse
- Coercive and controlling behaviour.
If you are considering divorce proceedings you may also want to speak to a divorce and family solicitor about applying for a non-molestation injunction order or an occupation order in respect of the family home
UK Online and London Based Immigration Solicitors and Indefinite Leave to Remain Lawyers