The breakdown of a relationship between a couple with international backgrounds can lead to complex immigration issues, especially when one partner relies on the other’s immigration status to remain in the UK.
Civil partnership dissolution, divorce or separation can leave non-European Economic Area (EEA) nationals in a vulnerable position and it’s not always clear what their rights are to remain in the UK. We look at some of the immigration options that may be available to non-EU citizens looking to remain in the UK following the breakdown of a relationship.
1. Retained Right of Residence
If you are married to an EEA national, you may be eligible to apply to remain in the UK. You must be able to demonstrate that you were married to an EEA national for at least three years before the commencement of divorce proceedings and that you both lived in the UK for at least twelve months. Additionally, you will need to prove that your ex-spouse exercised Treaty Rights for at least three years during the relationship. Exercising Treaty Rights means that they worked, studied or had full medical health care insurance.
If they were paid cash in hand, were receiving benefits for long periods or were absent from the UK for extended periods, it will more difficult to prove that they were exercising Treaty Rights. Applications under this category are document-intensive and it is not uncommon that issues arise when a relationship has broken down acrimoniously and there is little co-operation from the other partner in helping secure the relevant documents. For example, you will need your ex-spouse’s payslips, p60’s, bank statements and substantial evidence of joint co-habitation. If your ex was self-employed, details of their tax returns will be required.
In instances where your ex-spouse is unwilling to assist, every effort must be made to secure the relevant documentation. If you are still unable to secure the documents from them, as part of the application you need to write a detailed letter to the Home Office specifying where and when they worked and lived and any other information about their time in the UK. This information assists the caseworker at the Home Office to cross-reference the details with the tax data held by HMRC as proof that they have been economically active in the UK.
Timing and location of your ex-spouse is another major factor to consider. Often we find prospective applicants are either too late or too early in making an application under this category. At the point of applying, prospective applicants must comply with the rules, such as having lived together for twelve months in the UK and been married for at least three years. Crucially the application must be made while you are still married. It is fine to be separated but once the divorce is finalised it is too late to make an application.
The timing of the application was highlighted in the Court of Justice of the European Union in the summer of 2015. The court ruled that an applicant looking to secure Retained Right of Residence would need to make an application prior to their spouse leaving the country. This means that applications made after the EEA national has left the country and before any divorce proceedings were commenced will not satisfy the relevant legislation.
The decision leaves non-EEA nationals in a difficult position. They will need to initiate divorce proceedings earlier than they may wish, and possibly before they are emotionally ready. Often we find that applicants wish to pursue an application before the three-year mark or before any divorce proceedings have been initiated. Depending on the circumstance it may be possible that an application could be made.
2. Parent of a Child
If your relationship breaks down and you are the parent of a British child or settled child, and you have responsibilities and regular contact with your child after the break up, you might be able to enter or remain in the UK based on your relationship with your child. To apply under this category your child will need to be under 18, living in the UK and be either British or hold Indefinite Leave to Remain/Permanent Residency.
For this application a parent will be considered as either of the following:
- 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 father as well as the mother of an illegitimate child where he is proved to be the father;
- Genuine transfer of parental responsibility, in cases where the child is born in the UK but is not a British Citizen;
- An adoptive parent.
Applications under this category vary depending on the relationship with the child and require a number of supporting documents to evidence parental responsibility.Establishing parental responsibility is a vital aspect of this application and it should be heavily documented. Another important aspect of this application is showing that you have adequate accommodation in the UK for yourself and your child.
If you are no longer in the UK, have separated from your partner and now live outside the UK, it is possible to apply from outside the UK. Even if your relationship has broken down, it is vital to remain involved in the child’s life and be able to show that you can financially support yourself and your child should you come to the UK.
3. Tier 2 visa
Often not considered as an alternative following the breakdown of a marriage or separation of civil partners, a Tier 2 visa allows a non-EEA national to work in the UK as a sponsored migrant for a UK company that holds a sponsor licence.
The Tier 2 visa is open to medium and highly skilled workers, and can lead to Indefinite Leave to Remain.
4. Long Residence
A long residency application allows non-EEA nationals that have held various visas, to make an Indefinite Leave to Remain application after spending ten years in the UK. If you are looking to apply under this category, you will need to evidence how you have held valid visas over a ten-year period whilst in the UK.
Applications will require a lot of organisation to prove the ten-year residency in the UK. They will also require supporting evidence for each visa held.If you are coming up to the ten-year mark you should start gathering the necessary documentation so that an application can be made as soon as you qualify.