Relationship Breakdown and Immigration


SEPARATION or relationship breakdown can happen in various circumstances. Sometimes it is clearly attributable to one party’s conduct, for example where there has been domestic violence; but for the most part neither party is “at fault”. Acknowledgement of this was reflected in the change of divorce law in April 2022. Divorce no longer requires one party to blame the other by alleging misconduct.

The stress and distress of separation can be made worse where one party’s immigration is dependent on the continuation of the relationship. The following examines alternative routes available to applicants who have limited leave to remain in the UK based on their relationship and where that relationship has now broken down.

Marriage breakdown and domestic violence

If you are married and you are in the UK with a spouse / partner visa and your relationship breaks down due to domestic violence, can you still stay in the UK?

The answer is YES under the Domestic Violence Indefinite Leave to Remain (DVILR) route, provided that:

  1. Your visa is that of a spouse or unmarried partner or as a same sex partner. Those who entered the UK as fiancées / fiancés and have not yet swapped to a spouse or partner visa will not qualify.
  2. You must be physically present in the UK. This is usually not a problem, but if you are abroad you cannot apply under the DVILR route because you are not present in the UK.
  3. You have made a valid application. This broadly means that you have provided the Home Office with the relevant documents to support your application. For example, you require a current passport; if you do not have one because it was taken by your estranged partner, your application may still be considered “valid”. In this event, explain why you cannot provide your passport. If you have applied for a new passport, send in your receipt as evidence of your application for a new passport. Further, for your application to be valid you are required to pay the current fee of £2,404 unless you can get a waiver (see below).
  4. You must satisfy the “suitability requirements” for indefinite leave to remain. This generally means that you are of ‘good’ character. If contrary to this, meaning that you have criminal convictions, this may lead to a refusal of your application.
  • Living in the UK
  • Under 18 years of age
  • Either a British or Irish national, or have settled status in the UK
    The most challenging aspect when making an application to either enter or remain as the parent of a child living in the UK is often the “relationship requirement”.

    The Home Office will need to be satisfied that you play an active role in your child’s upbringing, and you plan to continue after you apply. As with most applications, evidence is “KING”. If you have a good relationship with your former partner, then a statement from them confirming your role in your child’s life can be persuasive evidence. In the absence of this (or in addition to it), it is helpful to provide letters from your child’s school stating that you take them to school or attend parent meetings. Some doctors are also happy to help confirm that you have been actively involved in caring for your child by taking them to their appointments. If you have court documents to confirm the active part you play in your child’s life, such evidence can be crucial; but beware that you may need permission from the court to use court documents as evidence. Without permission it is an offence to do so.

    Visa granted

    This will usually be for about two and a half years, during which time you can work (without restriction) in the UK and travel in/out of the UK for the duration of your visa.

    When you can apply for settlement (indefinite leave to remain) will depend on the type of visa you have been given. Usually, ILR can be applied after five or ten years. You should seek legal advice to ensure that you know whether an extension for limited leave or ILR is appropriate in your situation. Submitting the wrong application can be expensive as it may mean an additional set of fees.

    No visa

    A further complication following a relationship breakdown is where neither child nor parent have leave to remain; that is to say both are without a visa in the UK. There are scenarios when I would highly recommend that applicants seek legal advice before pursuing an application and the above situation is definitely such a case.
    A useful starting point is EX.1 of the Immigration Rules. This paragraph applies if:

    (a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
    (aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
    (bb) is in the UK;
    (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
    (ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK;
    A successful application under the above will likely result in a grant of leave to remain to both the child and parent for about two and a half years. This can be extended or even varied and can, in due course, lead to settlement.

    Other possibilities?

    Other routes may be available to an applicant whose relationship has broken down such as variation of leave to that of employment under the skilled worker route. This route has its own conditions including a Certificate of Sponsorship from a licenced (by the Home Office) employer.

    Family and Private Life
    Depending on your situation the Home Office may need to consider your application under Article 8 of the Human Rights Act. In essence the Home Office will have regard to your Family and Private life in the UK. To say that such an application is challenging is an understatement. It is nevertheless important that you include with your application Human Rights representations as this may at least provide you with a right of appeal in the event of refusal. Grant of leave on this basis will be for two and a half years and applicants will usually need to show a total of ten years before they will be able to apply for settlement.

Leave a Reply

Your email address will not be published. Required fields are marked *