Spouse Visa Curtailment after a Divorce

A Spouse or Marriage Visa is offered for the partner of a person with settled status in the UK, this enables them to immigrate to the UK to join their spouse.

This visa avenue is available for citizens outside the EEA, so countries outside of the EU and Switzerland may apply for this visa.

With a Spouse Visa, the UK spouse acts as the sponsor for the non-EEA spouse, a contingent of this visa being the genuine relationship between the couple, this is one of the main requirements in order to receive the Spouse Visa. There must also be proof of a £18,600 minimum income from the UK spouse in order to show that the couple will not be relying on public funds during their time in the country.

The initial period you can come as a spouse comes to the UK on a marriage is 30 months, after which you would be required to apply for a Spouse Visa extension. The extension of a Spouse Visa is assuming both parties are still living together and can provide proof of a continuous relationship.

If you are in the UK on a Spouse Visa, divorce proceedings will change your immigration status. In the UK, over 40% of marriages end in divorce and this figure is on the rise every year. There are many reasons a judge will grant a married couple a divorce including:

• adultery;
• unreasonable or abusive behaviour;
• desertion; or
• living apart for more than two years.

Both parties must agree to the divorce, but after the couple has been living apart for longer than five years then one person may petition the court for a divorce without the partner’s consent.

If you are in the UK on a Spouse Visa and your marriage comes to an end, you will be subject to something known as Spouse Visa curtailment and your visa will be cancelled. Overstaying on a cancelled Spouse Visa can have dire consequences in the long run including being convicted of immigration fraud, immediate deportation and being barred from reapplying to the UK.

Informing the Home Office of this fact almost immediately will work in your favour for any future visa applications. When writing to the Home Office you need to include the names, birth dates, addresses, passport and Home Office numbers of both yourself and your ex-partner along with details of what is going to happen to any dependent children thereafter. After this, you will need to either leave the country or look into alternate paths to staying in the UK.

If you are in the UK on a Spouse Visa, divorce doesn’t have to mean uprooting your life and a Work Visa could be the key to continuing your life in the UK. However, this route is only possible if you make the application for a Tier 2 Work Visa from outside the UK. If you are already working, you may be able to get your employer to sponsor your visa to allow you to stay. This will depend on whether or not they hold a Sponsorship Licence and can provide a Certificate of Sponsorship. However, you will only be able to do this by negotiating with your current employer, so that you can leave the UK and apply from there. If this is the case, the employer will need to go through the Resident Labour Market Test (unless your profession is in shortage in the UK). 

In the UK, there are over 29,000 businesses currently in possession of a Sponsorship Licence which allows them to employ a Tier 2 Visa holder. In order to be eligible for this visa, you will need to be earning £30,000 and prove that you have savings to support yourself. Certain jobs are exempt from this income requirement, such as nursing.

Jobs in the UK are advertised initially to UK and EEA nationals first, this is known as the Resident Labour Market Test. If they are unable to find a suitable candidate the job is then made available to Tier 2 migrants.

Jobs like Geochemist and Aerothermal Engineer fall on the Shortage Occupation List. This list of jobs is excluded from the Resident Labour Test, meaning Tier 2 Visa holders can apply instantly. A Tier 2 Skilled Worker Visa lets you stay in the UK for five years and your right to stay in the UK is dependent on your continuation at that particular job.

The Home Office is aware of the effects a divorce can have on the children affected, this problem is only made worse if one parent is forced to leave the country. The parent route is available for you if you have children that live in the UK.

You may apply for a Family Visa on the basis that you are a parent or primary carer of a child that is either a British Citizen or a settled person or if the child has been living in the UK continuously for seven years. You may apply if you have sole or shared parental responsibility for the child.

You do not need to be in a relationship or married to your child’s other parent in order to be eligible for this visa. You do need to prove you play an active part of your child’s life in order to stay in the UK as a parent. This can be established in a multitude of ways including a letter from your child’s school stating you attend the child’s parent’s evenings and/or are known to the school.

There is no minimum income requirement for parent visas but you do need to prove that you can live in the UK without needing access to public funds. This visa lasts the standard 30 months after which it can be extended assuming the child is not above the age of 18.

Those who have been in the country for a long period of time are able to apply to settle in the UK. The period is very strict, you must have been in the UK for at least ten years, this marked from when you arrived in the UK with a visa to the time of the cancellation of your Spouse Visa.

There are some significant stipulations when applying for long-term residency in the UK. For example, ten years of residency is reliant on you being in the country for the majority of that time. This means you cannot leave the country for longer than three months at a time and cannot leave the country for longer than 540 days in total.

Restrictions like the English Language Test and the Life in the UK test are still in place for long-term residents and any time spent in prison, young offenders or secure hospital does not count towards your continued residences in the UK. However, if you are able to apply for the long-term residences then this should be your first port of call. The settled status means you are no longer at the mercy of continuous visa applications and ever-changing circumstances over the course of your time in the UK.

Your legal residency in the UK should not be determined at the hands of your abuser. If you are currently on a Spouse Visa experiencing violence in your relationship and you want a divorce, you are legally entitled to apply to settle in the UK regardless of how long the marriage lasts.

Domestic abuse is recognised as psychological, physical, sexual, financial and emotional abuse. You will be asked to provide proof of the abuse. This can be, for example, court documents if you were granted a domestic violence protection order, a domestic violence protection notice or medical proof of domestic violence.

The breakdown of the relationship during the probationary period needs to be set out in a letter to the Home Office outlining your case for settled status. It is possible to apply something called a ‘Concessions for Victims of Domestic Violence’. This route allows you to stay in the UK for three months while you apply for settled status.

One in four women and one in six men will experience domestic violence in their lifetime, do not let immigration fears stop you from getting help. The threat of Spouse Visa curtailment should not be used against you in a relationship.

Divorces are a very tense time in the lives of everyone involved. Assessing your options early can save you many stressful hours in the long run.

The Home Office are known to regularly refuse applications which do not supply the right evidence or in cases where the applicant does not fall into the strict guidelines set out in the guidance notes. The lawyers at IAS are well versed in many different types of visa application, including those following a divorce. We will be able to put you on the right path to staying in the UK after your divorce.

Our services include:

• assessing your eligibility and your best options for staying in the UK after a divorce;
• checking your documents to ensure that they are sufficient for your application;
• preparing a Letter of Representation to go with your application;
• liaising with the Home Office during your application process;
• completing each part of your application form to the highest standard.

Get in touch on 0333 363 8577 or make an enquiry online to speak with one of our expert immigration consultants about your options for staying in the UK after a divorce.