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.
Retained Right of Residence Case Study – An American and French couple
Jack is an American national and is married to Maria, who is French.
They have been married for six years and have lived in the UK together for four years. Jack entered the UK under an EEA Family Permit and Maria entered as an EEA national with free movement of travel.
The couple moved to the UK as Maria accepted an offer to study a postgraduate degree at a top university in London. After completing the degree Maria started working for an engineering company.
Recently Maria found someone else and wishes to divorce Jack. After four years in the UK Jack’s life is now based in the UK and all his ties are to the UK. Because of this he hopes to stay in the UK after his divorce with Maria.
As Jack and Maria have been cohabiting for more than one year in the UK, and because Maria has been exercising Treaty Rights for the excess three years, Jack could make an application under Retain Right of Residence to remain in the UK. In doing so Jack will need to evidence the above, and if he shows that his life is now based here, it will strengthen his application.
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.
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.
Parent of a Child Case Study – Non-EEA national married to an Italian with a child with another person
Kumar, a Sri Lankan national, was married to Jasmine, an Italian, in Singapore. After living in Singapore for two years they both moved to the UK because Jasmine secured a job at an IT company. Kumar entered the UK on an EEA Family Permit.
After a year in the UK Kumar had an affair with Gloria, a British national, and as a result Gloria fell pregnant and she later gave birth to Peter.
Jasmine was unaware of the affair, however following the birth Jasmine found out about Kumar’s new son and initiated divorce proceedings immediately. At this point Kumar had only spent one year and nine months in the UK married to Jasmine, meaning that he fell short of the Retained Right of Residence criteria.
Kumar left the UK and returned to Sri Lanka. Kumar was heavily involved with Peter’s birth and the planning of it. Kumar also regularly helped Gloria with parenting decisions.
After Peter’s 1st birthday Kumar decided that he would like to be in the UK and help with the upbringing of Peter.
When applying to enter the UK, Kumar needs to show how he has consistently been involved in Peter’s life and the parental responsibility he holds. Kumar also has to evidence how financially he can support himself and Peter whilst in 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.
Tier 2 visa Case Study – Non-EEA national securing a work permit in the UK
Lucas is a South African national and is in a civil partnership with Andy, a British national. He entered the UK under a spouse visa. Whilst in the UK Lucas worked for a large multinational oil and gas company.
After a year and a half Lucas wishes to separate from Andy, but would like to retain a job in the UK. Lucas’s current employer does not hold a sponsor licence so he needs to find a role at a company that is able to issue a certificate of sponsorship.
Whilst proceedings for a separation were underway Lucas found a new position at an oil and gas company that held a valid sponsor licence.
With a sponsor licence the company was able to assign a certificate of sponsorship and secure a visa to allow Lucas to work in the UK.
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. This visa category has been under a lot of scrutiny and it would not be unexpected if it were to be closed in 2016.
Long Residence Case Study – Non-EEA national 10 years in the UK
Abraham, a Ghanaian national, entered the UK under a three-year Tier 4 Student visa. After successfully completing his undergraduate degree he wanted to remain in the UK and study a postgraduate degree. For this he secured a visa with an elite UK university.
Near the end of his one-year postgraduate degree, Abraham secured a role in HR at a leading sports company. Having been a student visa holder he was able to switch in-country to a Tier 2 visa.
After two and half years of working for the sports company, Abraham met Delia, a British national. A year and a half later they decide to get married. However soon after, Abraham’s employer wishes to let him go.
After being informed of this he tries to secure employment with another employer, but cannot find a job. In order to remain in the UK he decides to switch to a spouse visa based on his marriage.
Now, after two years of marriage, Abraham and Delia wish to separate, resulting in Abraham’s spouse visa becoming void.
Having spent ten years of his life in the UK Abraham wishes to remain in the UK. Despite the various visas over the ten-year period, Abraham can apply for Long Residency as his visas were continuous and were not secured through entry clearance.
When applying Abraham needs to evidence his time in the UK as an undergraduate, postgraduate, worker and the holder of a spouse visa.