Breakdown of a relationship may be one of the most painful experiences in life. And visa problems would seem small next to it. Yet, visa problems may add a sting.
Does the spouse visa lapse if the marriage breaks down?
Strictly speaking, no, it doesn't. Spouse visa is granted for a limited period of time – for 30 months, or 33 months in the first application for entry clearance. It remains valid until it runs out or is revoked (for which see below). However, under the terms of your visa you should notify the Home Office if you get separated or divorced.
It is a common question, when is the right time to notify the Home Office. The Home Office does not give any guidance on that and it is our understanding that the breakdown of the relationship should be reported when in is irrevocable or when the divorce proceedings have been initiated. Failure to notify the Home Office about a temporary separation or a separation with a reasonable hope for reconciliation in the foreseeable future would be understandable. However, you will not be able to extend your spouse visa or apply for ILR if separated.
If you write to the Home Office explaining your change of circumstances, you may expect a curtailment letter, so it is important to make sure the Home Office has your address on file. Curtailment letter may or may not be sent, but you would want to make sure you have received it if it was sent. A curtailing letter will give you 60 days to make an application for permission to stay in a new category or leave the country.
Whether or not a curtailment letter is expected, we recommend that you decide on your plan of action in advance. This post is to give you some guidance on the options available.
Victims of domestic violence
If you fall victim to domestic violence and the family breaks down, you are eligible to apply for indefinite leave to remain.
Domestic violence is not limited to physical abuse. It can be psychological, financial or emotional. Controlling behaviour designed to make a person subordinate or dependent is also a form of abuse. Threats, humiliation and intimidation may amount to coercive and abusive behaviour.
Victims of domestic violence may apply for indefinite leave to remain out of time provided their last grant of leave was a partner or spouse. You will be exempt from the English language and Life in the UK test requirement. You may also be eligible for the fee exemption if paying the fee would make you destitute.
You will need independent evidence of abuse, such as police records, domestic violence protection order, a letter from social services or a support agency confirming that they have made a professional assessment of the case, or other independent evidence.
If you are a victim of domestic violence, it is important to seek legal advice as early as possible.
Parental responsibility for a British child
If you have parental responsibility for a British child you may switch into another immigration category as a parent. If the marriage breaks down you should be able to switch from the partner route to parent route. You will have to make the application before the expiry of your partner visa. You don't have to wait closer to the time the visa runs out but can make the application as soon as you meet the requirements.
For the parent visa you will need to show that your British child lives with you while the other parent has moved out, or that the child lives with the other parent but you have parental responsibility and the right of access to the child.
Unfortunately, switching into the parent route will delay your application for indefinite leave to remain, as the five year period will start running afresh.
Dependent spouse of a sponsored migrant
Dependents of a sponsored migrant are not allowed to stay if the relationship breaks down. The Home Office will normally curtail the dependents' visas if notified of the change of circumstances. Not only the partner of a sponsored migrant but also their children will be required to leave.
Dependent partner of a sponsored worker can nevertheless switch into another immigration category if they find sponsored work as discussed below.
Other immigration options
A breakdown in the relationship does not necessarily mean the end of your immigration journey. You may explore other options such as work related immigration options.
If you are employed in a professional capacity your employer may offer you sponsorship. It is worth checking with the employer if they have the capacity for sponsorship. If they are interested in keeping you but don't have a licence it may be a good moment for them to apply for a sponsor licence.
Sponsored employment can be a reliable route to settlement. You can switch into a skilled worker or a scale-up worker category in-country provided you make the application before your partner visa expires. There are certain advantages of the scale-up route as it gives you more flexibility and allows you to work for yourself as well as for any other business after only six months of sponsored work. At the same time, this route has a higher salary requirement and there are far fewer businesses that can offer sponsorship in this category.
You may also consider the Global talent route if you are a leading specialist in academia or search, digital technology or a recognised figure in arts and culture.
If you graduated within the last five years from one of the top accredited universities worldwide, it is worth checking if you may qualify for the High Potential Individual route.
Running your own business
There is no immigration option that would cater specifically for people who run a business in the UK. However, if your business is active and trading and you have at least one settled employee working for the business, you may be able to sponsor yourself as a skilled worker and apply for permission to remain in this category.
Your business will need a sponsor licence and will be required to show that your position is genuinely needed for the business – something we can certainly help with.
ILR on the basis of long residence and private life
If you have spent in the UK a continuous period of 10 years in a combination of different immigration categories you may be eligible for indefinite leave to remain.
You may have have reached the 10 years entirely under Appendix FM in a combination of partner and parent routes or your 10 years may include time spent in the UK in a combination of immigration categories, such as work related immigration options or as a student and graduate.
The private life route (under Appendix FM) is different from the long residence route under another part of the Immigration Rules in that different limitations apply to the number of days you are allowed to be absent from the UK during the relevant period and general grounds for refusal that apply under these categories.
Your dependant are also treated differently and may lose out if you chose the long residence rule which does not allow applications for dependents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.