Immigration issues for family lawyers

The most common immigration issue facing family lawyers is whether their client’s immigration status will be at risk as a result of the separation or divorce. The risks, and the options to protect their status, will depend on their circumstances.

For partner visas, both the visa holder and the spouse are obliged to report a change of circumstances, including separation or divorce. Where there is potential for resolution, an excuse for not reporting may apply – in certain cases this may mean reporting is not necessary until the decree absolute, though individual circumstances should be considered (for example, if the couple has lived apart for some time).

Once informed of the split, the Home Office may take steps to curtail the visa holder’s leave, usually cutting it to 60 days, unless the visa would expire in this time in any event. During the remaining period, the visa holder may apply for an alternative visa. This will depend on their circumstances, but could include finding an employer that will sponsor them or applying under the domestic abuse route. If they are not eligible for any visa, they may use this time to prepare for a voluntary departure from the UK.

It is vital that family lawyers understand the implications of divorce on the immigration status of the affected spouse, as this may also impact finances, assets and children. Taking early advice on these implications and the options available can provide some assurance to the parties, or otherwise prepare them for the reality of the situation they will face. In either case, it is essential for settlement discussions that the parties understand their immigration rights.

Domestic abuse

Those with a partner visa who have suffered domestic violence and abuse may be eligible to apply for indefinite leave to remain.

Those victims who do not have sufficient money to support themselves may apply for the destitution domestic violence (DDV) concession, which gives permission to claim benefits for up to three months without affecting their eligibility for settlement, which usually prohibits recourse to public funds. 

Evidence of domestic violence and abuse will inevitably vary from case to case. The Home Office guidance regarding domestic violence specifies the value caseworkers should give to different types of evidence (the list below is a non-finite list):

·        Conclusive: criminal convictions; police cautions; non-molestation or occupation orders in which there is a finding of fact recorded.

·        Strong: MARAC referrals; domestic violence protection orders; prohibited steps or contact orders; letters from social services or domestic violence victim support organisations (including refuges).

·        Moderate: ex parte orders; interim orders; undertakings to court; police report of attendance at a domestic violence; medical reports.

·        Weak: statement from the applicant; power of arrest; photos, texts or other such evidence repeating the applicant’s account of domestic violence.

All evidence will be considered together, so the absence of higher value evidence will not mean the application will fail. However, legal advice should be sought to consider the strength of the application under the domestic violence route and further evidence collated if necessary. If the evidence is insufficient, alternative visa routes may need to be considered.

Children

The consent of both parents is generally required for any child’s application for a visa or registration as a British citizen. However, there are circumstances in which the absence of consent from one or both parents is not prejudicial. Consent is not mandatory for an application for registration as a British citizen by either (a) a minor born in the UK whose parent subsequently becomes a British citizen, settles in the UK or becomes a member of the armed forces, or (b) a person who lived in the UK for the first 10 years of their life (subject to their levels of absence).

For dependant visas, proof of responsibility for the relevant child is usually required. It is therefore recommended any arrangements regarding parental access and/or parental responsibility be clearly formalised and recorded; informal arrangements may be difficult to prove if one of the parents subsequently becomes uncooperative.

Separated partners can be hesitant about providing documents that assist their children in visa or registration applications. Engaging a solicitor to assist with the application can often provide reassurance to the other partner the documents will be handled responsibly, confidentially and only for their intended purpose.

Adoption

UK residents adopting from overseas need to ensure the child has leave to enter and remain in Britain before bringing them to the country. Adopters will generally receive assistance from their adoption agency or their local authority to ensure the immigration paperwork is completed. There are several routes available to ensure an adopted child may come to the UK, including for ‘de facto adoptions’ where overseas parents have cared for a child in an adoptive way but without access to a legal adoption system.

If a child obtained leave to enter the UK under a category unconnected to adoption, and is then named in an application for adoption made to the Family Court shortly before they turn 18, the Home Office may be notified and may intervene. This is to avoid adoption being used to acquire permanent residence or British citizenship when adoption was not the intention of their original entry clearance. The Home Office will consider whether the adoption is genuine. In such circumstances, lawyers may wish to collate additional evidence regarding the adoption, including a reasonable explanation regarding the timing of the application.

European nationals

Prior to Brexit, anyone of any nationality married to an EEA or Swiss national could remain in the UK if their spouse was working, studying, job-seeking or self-sufficient in the UK. Those in the UK on this basis prior to 31 December 2020 were eligible under the EU Settlement Scheme for either pre-settled status or settled status, depending on their time in the UK. The deadline for these applications was 30 June 2021, but those who have missed the deadline may still apply and have their applications dealt with, though they should avoid any further delay to their application.

European nationals and their family members entering the UK without settled or pre-settled status are subject to the same rules as non-European nationals. Non-European nationals who are considering divorce and who are in the UK on the basis of their marriage to an EEA national will also be subject to the new visa requirements unless they have obtained their settled or pre-settled status.

Remaining in the UK

Eligibility for a visa will depend on an individual’s circumstances. Prospective divorcees may wish to consider their eligibility for the following common options:

·        Naturalisation – generally requires the applicant to have indefinite leave to remain for one year, and five years’ residence in the UK without significant absences. Those married to British nationals can apply once they have ILR subject to having lived in the UK for three years, though as the marriage must be genuine and continuing this is unlikely to apply where divorce proceedings have begun;

·        Indefinite Leave to Remain – the applicant will generally need to have been in the UK for a prescribed period on a relevant visa, unless they are the victim of domestic violence. The prescribed period is most commonly five years; 

·        Family visa – this option may be available if the applicant has a minor child who has their own permission to stay in the UK;

·        Skilled worker visa – requires sponsorship by an employer. Sponsorship is reserved for skilled roles;

·        Study visa – applying to study with a registered educational establishment may allow the applicant to remain in the UK, but will limit their ability to work (usually to no more than 20 hours during term time).

Matthew Cranton is a partner and head of immigration at Fletcher Day fletcherday.co.uk

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